-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HJ9OLAKm5piswqUT4Za5VWe9sew94SVHo7u0op9e3ryjJaUZa0S3t0lx5eTwsLUY xVz0Dfcz1cnKlKDFnIFDBg== 0000011454-99-000016.txt : 19990315 0000011454-99-000016.hdr.sgml : 19990315 ACCESSION NUMBER: 0000011454-99-000016 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 13 FILED AS OF DATE: 19990312 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERGEN BRUNSWIG CORP CENTRAL INDEX KEY: 0000011454 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-DRUGS PROPRIETARIES & DRUGGISTS' SUNDRIES [5122] IRS NUMBER: 221444512 STATE OF INCORPORATION: NJ FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-74349 FILM NUMBER: 99564300 BUSINESS ADDRESS: STREET 1: 4000 METROPOLITAN DR CITY: ORANGE STATE: CA ZIP: 92668 BUSINESS PHONE: 7143854000 MAIL ADDRESS: STREET 1: 4000 METROPOLITAN DRIVE CITY: ORANGE STATE: CA ZIP: 92668 FORMER COMPANY: FORMER CONFORMED NAME: BERGEN DRUG CO INC DATE OF NAME CHANGE: 19690409 S-3 1 BERGEN BRUNSWIG CORPORATION FORM S-3 FILING Filed with the Securities and Exchange Commission on March 12, 1999 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Bergen Brunswig Corporation New Jersey 22-1444512 BERGEN CAPITAL TRUST I Delaware Applied for BERGEN CAPITAL TRUST II Delaware Applied for BERGEN CAPITAL TRUST III Delaware Applied for - ------------------------- ---------------------------- ------------------ (Exact name of registrant (state or other jurisdiction (I.R.S. Employer as specified in of incorporation Identification No.) its charter) or organization) 4000 Metropolitan Drive Orange, California 92868-3598 (714) 385-4000 - -------------------------------------------------------------------------------- (Address, including zip code, and telephone number, including area code, of each registrant's principal executive offices) MILAN A. SAWDEI Executive Vice President, Chief Legal Officer and Secretary 4000 Metropolitan Drive Orange, California 92868-3598 (714) 385-4255 - -------------------------------------------------------------------------------- (Name, address, including zip code, and telephone number, including area code, of agent for service) Copy to: Peter H. Ehrenberg, Esq. Lowenstein Sandler PC 65 Livingston Avenue Roseland, New Jersey 07068 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this Registration Statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [-] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [X] -2- CALCULATION OF REGISTRATION FEE
====================================================================================================== Proposed Proposed maximum maximum aggregate aggregate Amount of Title of each class of Amount to be offering price offering registration Securities to be registered(1) registered(1)(2) per unit(3) price(3)(4) fee - ------------------------------ ---------------- -------------- ------------ ------------- Debt Securities. Preferred Securities of Bergen Capital Trust I, Bergen Capital Trust II and Bergen Capital Trust III. Guarantees of Preferred Securities of Bergen Capital Trust I, Bergen Capital Trust II and Bergen Capital Trust III by Bergen Brunswig Corporation(5) Class A Common Stock, par value $1.50 per share, of Bergen Brunswig Corporation (including preferred share purchase rights) (6) Total............................. $300,000,000 100% $300,000,000 $83,400 ------------ ---- ------------ ------- ====================================================================================================== (1) Such indeterminate principal amount of Debt Securities and Guarantees and such indeterminate number of Preferred Securities as may from time to time be issued at indeterminate prices, with an aggregate public offering price not to exceed $300,000,000. Certain Debt Securities may be issued and sold to any or all of BBC Capital Trust I, BBC Capital Trust II and BBC Capital Trust III, in which event such Debt Securities may later be distributed to the holders of Preferred Securities. (2) In United States dollars or the equivalent thereof in one or more foreign currencies, composite currencies or currency units as shall result in an aggregate initial offering price for all securities of $300,000,000. If any of the Debt Securities are issued at a discount from their principal amount, the principal amount will be increased such that the aggregate initial offering price will equal $300,000,000. (3) Estimated solely for the purpose of calculating the registration fee -3- pursuant to Rule 457 of the rules and regulations under the Securities Act of 1933. (4) Such amount represents (a) the principal amount of any Debt Securities issued at their principal amounts, (b) the issue price rather than the principal amount of any Debt Securities issued at an original issue discount, and (c) the issue price of any Preferred Securities. (5) No separate consideration will be received for any Guarantees. The Guarantees include the rights of holders of Preferred Securities under the Guarantees and certain back-up undertakings, comprised of obligations of Bergen under the Indentures and any supplemental indentures thereto and pursuant to the Declarations of Trust to provide certain indemnities in respect of, and be responsible for certain costs, expenses, debts and liabilities of, each of Bergen Capital Trust I, Bergen Capital Trust II and BBC Capital Trust III, each as described in the registration statement. All obligations under the Declarations of Trust, including the indemnity obligation, are included in the back-up undertakings. (6) Such indeterminate number of shares of Class A Common Stock as may be issuable upon conversion of any Preferred Securities registered hereunder having conversion rights ("Convertible Preferred Securities"), including such shares as may be issued pursuant to anti-dilution adjustments. No separate consideration will be received for any shares of Class A Common Stock issuable upon conversion of Convertible Preferred Securities. Preferred share purchase rights are currently attached to, and trade with, the Registrant's Class A Common Stock and entitle the holder thereof to purchase one-one hundredth of a share of the Registrant's Series A Junior Preferred Stock. If Class A Common Stock is issued, these rights will be issued for no additional consideration.
The registrants hereby amend this registration statement on such date or dates as may be necessary to delay its effective date until the registrants shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. -4- THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. SUBJECT TO COMPLETION, DATED MARCH 12, 1999 $300,000,000 BERGEN BRUNSWIG CORPORATION Senior Debt Securities and Subordinated Debt Securities BERGEN CAPITAL TRUST I, BERGEN CAPITAL TRUST II and BERGEN CAPITAL TRUST III Preferred Securities Guaranteed To The Extent Set Forth Herein By Bergen Brunswig Corporation BERGEN: . will pay principal, premium (if any) and interest on its senior debt securities and, subject to payment of its senior debt securities, on its subordinated debt securities; and . will guarantee the payment by each trust of the preferred securities based on several obligations described in this prospectus. THE TRUSTS: BBC Capital Trust I, BBC Capital Trust II and BBC Capital Trust III are Delaware business trusts. Each trust will: . sell preferred securities (representing undivided beneficial interests in the trust) to the public; . sell common securities (representing undivided beneficial interests in the trust) to Bergen; . use the proceeds from these sales to buy an equal amount of subordinated debt securities of Bergen; and . distribute the cash payments it receives on the subordinated debt securities it owns to the holders of the preferred and common securities. We will provide the specific terms of these securities in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or the accompanying prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense. THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT. -5- The date of this prospectus is , 1999. TABLE OF CONTENTS PAGE ---- Forward-Looking Statements............................................. About This Prospectus.................................................. Where You Can Find More Information.................................... Bergen................................................................. The Trusts............................................................. Use of Proceeds........................................................ Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and Preferred Stock Dividends......................... Description of Securities.............................................. Description of Debt Securities......................................... Description of Preferred Securities.................................... Description of Preferred Securities Guarantees......................... Relationship among Preferred Securities, Preferred Securities Guarantees and Subordinated Debt Securities Held by Each Trust. Description of Class A Common Stock.................................... Other Matters Applicable to the Securities............................. Plan of Distribution................................................... Legal Opinions......................................................... Experts................................................................ FORWARD-LOOKING STATEMENTS This prospectus includes or incorporates by reference forward-looking statements, including those identified by the words "believes," "anticipates," "expects" and similar expressions. Bergen has based these forward-looking statements on its current expectations and projections about future events. These forward-looking statements are subject to risks, uncertainties, and assumptions about Bergen, including, among other things: * uncertainties relating to general economic conditions; * the loss of one or more key customer or supplier relationships, including pharmaceutical or medical-surgical manufacturers for which alternative supplies may not be available; * the malfunction or failure of Bergen's information systems, including malfunctions or failures associated with Year 2000 compliance or readiness issues; * the costs and difficulties related to the integration of recently acquired businesses, including the status of such businesses' compliance with Year 2000 protocols; -6- * changes to the presentation of financial results and position resulting from adoption of new accounting principles or upon the advice of Bergen's independent auditors, or the staff of the Securities and Exchange Commission; * changes in the distribution or outsourcing pattern for pharmaceutical or medical-surgical products and/or services, including any increase in direct distribution or decrease in contract packaging by pharmaceutical manufacturers; * changes in, or failure to comply with, government regulations; * the costs and other effects of legal and administrative proceedings; * competitive factors in Bergen's healthcare service businesses, including pricing pressures; * the continued financial viability and success of Bergen's customers and suppliers; * technological developments and products offered by competitors; * failure to retain or continue to attract senior management or key personnel; * difficulties or delays in the development, production and marketing of new products and services; * strikes or other labor disruptions; * labor and employee benefit costs; * pharmaceutical and medical-surgical manufacturers' pricing policies and overall drug and medical-surgical supply price inflation; and * changes in hospital buying groups or hospital buying practices. Bergen has no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. In light of these risks, uncertainties and assumptions, the forward-looking events discussed in this prospectus or in the incorporated documents might not occur. -7- You should rely only on the information contained or incorporated by reference in this prospectus and any accompanying prospectus supplements. Bergen has not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. Bergen is not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information contained or incorporated by reference in this prospectus and any accompanying prospectus supplement is only accurate as of the date on the front cover pages of this prospectus and of the prospectus supplement, respectively. Our business, financial condition, results of operations and prospects may have changed since those dates. ABOUT THIS PROSPECTUS This prospectus is part of a registration statement that Bergen filed with the Securities and Exchange Commission using a "shelf" registration process. Under this shelf registration process, Bergen and the trusts described in this prospectus may sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $300,000,000. This prospectus provides you with a general description of the securities Bergen and the trusts may offer. Each time Bergen and the trusts sell securities, Bergen will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional information described under the heading "Where You Can Find More Information." WHERE YOU CAN FIND MORE INFORMATION Bergen files reports, proxy statements, and other information with the Securities and Exchange Commission ("SEC"). Such reports, proxy statements, and other information concerning Bergen can be read and copied at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. The SEC maintains an internet site at http://www.sec.gov that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC, including Bergen. Bergen's Class A Common Stock is listed and traded on the New York Stock Exchange ("NYSE"). Bergen's reports, proxy statements and other information are also available for inspection at the offices of the NYSE, 20 Broad Street, New York, New York 10005. This prospectus is part of a registration statement filed with the SEC by Bergen and the trusts. The full registration statement can be obtained from the SEC as indicated above or from Bergen. The SEC allows Bergen to "incorporate by reference" the information it files with the SEC. This permits Bergen to disclose important information to you by referencing these filed documents. Any information referenced this way is considered part of this prospectus, and any information filed with the SEC subsequent to this prospectus will automatically be deemed to update and supersede this information. Bergen incorporates by reference the following documents which have been filed with the SEC: -8- Annual Report on Form 10-K for the fiscal year ended September 30, 1998, as amended; Quarterly Report on Form 10-Q for the quarter ended December 31, 1998; and Current Reports on Form 8-K, dated November 12, 1998, January 12, 1999 and January 26, 1999. Bergen also incorporates by reference any future filings made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act of 1934 (the "Exchange Act") until Bergen or the trusts sell all of the debt securities and preferred securities. Bergen will provide without charge upon written or oral request, a copy of any or all of the documents which are incorporated by reference to this prospectus. Requests should be directed to Bergen Brunswig Corporation, 4000 Metropolitan Drive, Orange California 92868, Attn: Milan A. Sawdei, Executive Vice President, Chief Legal Officer and Secretary; telephone: (714) 385-4000. There are no separate financial statements of the trusts in this prospectus. Bergen does not believe such financial statements would be helpful because: * The trusts currently are direct or indirect wholly-owned subsidiaries of Bergen, which files consolidated financial information under the Exchange Act. * The trusts do not have any independent operations other than issuing the preferred and common securities and purchasing the subordinated debt securities. * Bergen guarantees the preferred securities of the trusts as described in this prospectus. -9- BERGEN Bergen is one of the nation's leading supply chain management companies, providing pharmaceuticals, medical-surgical supplies and specialty products as well as information management solutions and outsourcing services designed to improve cost effectiveness and increase value for customers, patients and manufacturers across the entire health care spectrum. Bergen also develops disease-specific treatment protocols and pharmacoeconomic initiatives to assist in the reduction of overall health care costs while improving disease management and outcomes. Bergen's executive offices are located at 4000 Metropolitan Drive, Orange, California 92868; telephone (714) 385-4000. THE TRUSTS Bergen has created three Delaware business trusts pursuant to three Declarations of Trust. The trusts are named Bergen Capital Trust I, Bergen Capital Trust II and Bergen Capital Trust III. Bergen will file an Amended and Restated Declaration of Trust (a "Declaration") for each trust, which will state the terms and conditions for each trust to issue and sell its preferred securities and common securities. A form of Declaration is filed as an exhibit to the registration statement of which this prospectus forms a part. Each trust will exist solely to: * issue and sell its preferred and common securities; * use the proceeds from the sale of its preferred and common securities to purchase a series of Bergen's subordinated debt securities; * maintain its status as a grantor trust for United States federal income tax purposes; and * engage in other activities that are necessary or incidental to these purposes. Each trust will be utilized for a single offering of preferred and common securities. Thus, there may be up to three offerings of such securities from time to time. Bergen will purchase all of the common securities of each trust. The common securities will represent an aggregate liquidation amount equal to at least 3% of each trust's total capitalization. The preferred securities will represent the remaining 97% of such trust's total capitalization. The common securities will have terms substantially identical to, and will rank equal in priority of payment with, the preferred securities. However, if Bergen defaults on the related subordinated debt securities, then cash distributions and liquidation, redemption and other amounts payable on the common securities will be subordinate to the preferred securities in priority of payment. The prospectus supplement will specify whether or not the preferred securities are convertible. If the preferred securities are convertible, they - -10- will be convertible into shares of Bergen's Class A Common Stock, par value $1.50 per share, in accordance with the terms described in the prospectus supplement. The preferred securities will be guaranteed by Bergen as described later in this prospectus. Bergen has appointed the following five trustees to conduct each trust's business and affairs: * Chase Manhattan Bank and Trust Company, National Association ("Property Trustee"); * Chase Manhattan Bank Delaware ("Delaware Trustee"); and * three Bergen officers ("Regular Trustees"). Only Bergen, as owner of the common securities, can remove or replace the trustees. In addition, Bergen can increase or decrease the number of trustees. However, the majority of trustees will always be Regular Trustees. Bergen will pay all fees and expenses related to each trust and each offering of the related preferred securities and will pay all ongoing costs and expenses of each trust, except such trust's obligations under the related preferred and common securities. The trusts will not have separate financial statements. The statements would not be material to holders of the preferred securities because no trust will have any independent operations. Each trust exists solely for the reasons summarized above. USE OF PROCEEDS Bergen will use the net proceeds that it receives from the sale of securities offered under this prospectus for general corporate purposes, including the retirement of outstanding debt of Bergen, Bergen's subsidiaries and entities which Bergen may acquire in the future. Each trust will use all proceeds from the sale of the common and preferred securities to purchase subordinated debt securities of Bergen. The prospectus supplement with respect to any offering of securities may identify different or additional uses for the proceeds of such offering. -11- RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS The following table sets forth Bergen's consolidated ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends based on the historical results of Bergen and its subsidiaries. For the purpose of calculating these ratios, earnings consist of income before income taxes and fixed charges. Fixed charges include interest and debt expense, including the portion of lease rentals representative of the interest factor.
Three Months Ended Year Ended September 30, December 31, ---------------------------- ----------------- 1994 1995 1996 1997 1998 1997 1998 ---- ---- ---- ---- ---- ---- ---- Ratio of Earnings to Fixed Charges.. 4.2x 3.8x 4.4x 4.5x 2.4x 4.1x 5.4x Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends*. ......... 4.2x 3.8x 4.4x 4.5x 2.4x 4.1x 5.4x - -------- *There were no dividends on preferred stock during any of the periods presented.
DESCRIPTION OF SECURITIES This prospectus contains a summary of the senior debt securities, the subordinated debt securities, the preferred securities, the preferred securities guarantee and Bergen's Class A Common Stock. These summaries are not meant to be a complete description of each security. However, this prospectus and the accompanying prospectus supplement contain the material terms and conditions for each security. For more information, please refer to (1) the indenture (the "Senior Indenture") between Bergen and Chase Manhattan Bank and Trust Company, National Association ("Chase National Bank and Trust Company"), as trustee ("Senior Indenture Trustee"), relating to the issuance of each series of senior debt securities, (2) the indenture (the "Subordinated Indenture") between Bergen and Chase Manhattan Bank and Trust Company, as trustee (the "Subordinated Indenture Trustee"), relating to the issuance of each series of subordinated debt securities, (3) the Declaration of each trust, (4) Bergen's guarantee of the preferred securities issued by each trust (the "Preferred Securities Guarantees") and (5) Bergen's Restated Certificate of Incorporation, as amended. Forms of these documents are filed as exhibits to the registration statement, which includes this prospectus. DESCRIPTION OF DEBT SECURITIES General From time to time Bergen may issue debt securities in one or more series - as either senior securities ("Senior Debt Securities") or subordinated securities ("Subordinated Debt Securities"). The term "Debt Securities" refers -12- to both the Senior Debt Securities and the Subordinated Debt Securities. Below is a description of certain general terms of the Debt Securities. The particular terms of a series of Debt Securities will be described in a prospectus supplement. If Bergen issues Senior Debt Securities (other than the LYONs(TM)* discussed below), the Senior Debt Securities would be issued under the Senior Indenture. Bergen would issue the Subordinated Debt Securities (other than the LYONs) under the Subordinated Indenture. Bergen may offer Liquid Yield Option(TM) Notes ("LYONs"), which may be either Senior Debt Securities or Subordinated Debt Securities. LYONs will not be issued under the Senior Indenture or the Subordinated Indenture, but rather will be issued under a separate indenture (the "LYONs Indenture") to be entered into when LYONs are issued. The term "Indentures" means the Senior Indenture, the Subordinated Indenture and the LYONs Indenture, each of which will be subject to and governed by the Trust Indenture Act of 1939 (the "Trust Indenture Act"). The term "Trustee" means the trustee under each of the Senior Indenture, the Subordinated Indenture and the LYONs Indenture. The Indentures do not limit the amount of Debt Securities that Bergen may issue, nor do they limit Bergen or its subsidiaries from issuing any other unsecured debt. The Debt Securities offered by this Prospectus will be limited to $300,000,000 in aggregate principal amount. The Senior Debt Securities will rank equally with all of Bergen's senior and unsubordinated debt. Each series of Subordinated Debt Securities will be unsecured and will be subordinate and junior in priority of payment to certain of Bergen's other indebtedness to the extent described in a prospectus supplement. Each prospectus supplement will describe the following terms relating to a series of Debt Securities: * the title; * any limit on the amount that may be issued; * whether the series of Debt Securities will be issued as registered securities, bearer securities or both; * the price at which the series of Debt Securities will be issued, which may be at a discount or premium; * whether or not the series of Debt Securities will be issued in global form, and, if so, the terms and who the depositary will be; * the maturity date(s); * the person to whom any interest will be payable on any registered security, if other than the person in whose name such security is registered at the close of business on the regular record date; - -------- * - Trademark of Merrill Lynch & Co., Inc. -13- * the annual interest rate(s), if any, (which may be fixed or variable) or the method for determining the rate(s), and the date(s) interest will begin to accrue, the date(s) interest will be payable and the regular record date(s) for interest payment date(s) or the method for determining such date(s); * the place(s) where payments shall be payable, registered securities may be surrendered for registration of transfer, securities may be surrendered for exchange, and notices and demands to or upon Bergen may be served; * the period(s) within which, and the price(s) at which, such series of Debt Securities may, pursuant to any optional or mandatory redemption provisions, be redeemed, in whole or in part, and other related terms and provisions; * any mandatory or optional sinking fund provisions or any provisions for remarketing the securities and other related terms and provisions; * the denominations in which the series of Debt Securities will be issued, if other than denominations of $1,000 in the case of registered securities and any integral multiple thereof, and in the case of bearer securities, if other than denominations of $5,000 and any integral multiple of $5,000; * the currency or currencies, including composite currencies or currency units, in which the series of Debt Securities may be denominated or in which payment of the principal of and interest, if any, on the series of Debt Securities will be payable, if other than the currency of the United States of America, and, if so, whether the series of Debt Securities may be satisfied and discharged other than as provided in the applicable Indenture; * if the amounts of payments of principal of and interest, if any, on the series of Debt Securities are to be determined with reference to an index, formula or other method, or based on a coin or currency other than that in which the series of Debt Securities are stated to be payable, the manner in which such amounts shall be determined and the calculation agent, if any; * if other than the entire principal amount, the portion of the principal amount of the series of Debt Securities that will be payable upon acceleration of the maturity pursuant to an event of default; * whether the series of Debt Securities is to be convertible into Bergen's Class A Common Stock and, if so, the conversion rate and the extent to which such conversion rate will be subject to anti-dilution provisions; * if other than as defined in the applicable Indenture, the meaning of "Business Day" when used with respect to the series of Debt Securities; -14- * if the series of Debt Securities may be issued or delivered (whether upon original issuance or upon exchange of a temporary security of such series or otherwise), or any installment of principal or interest is payable, only upon receipt of certain certificates or other documents or satisfaction of other conditions in addition to those specified in the applicable Indenture, the forms and terms of such certificates, documents or conditions; * the right, if any, to extend the interest payment periods and the duration of the extensions; * the terms, if any, pursuant to which any series of Subordinated Debt Securities will be subordinate to any of Bergen's debt; * any addition to, or modification or deletion of, any event of default, covenant of Bergen or other term or provision specified in the applicable Indenture with respect to the series of Debt Securities; and * any other terms (which terms may be inconsistent with the applicable Indenture). One or more series of Debt Securities may be sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below market rates. Federal income tax consequences and special considerations applicable to such an offering will be described in the applicable prospectus supplement. Consolidation, Merger or Sale The Indentures generally permit Bergen to merge or consolidate, or sell, convey, transfer or otherwise dispose of its assets as an entirety or substantially as an entirety, provided that no event of default would occur as a result of such transaction. However, any successor or acquiror of such assets must assume all of the obligations of Bergen under the Indentures and the Debt Securities and be organized and existing under the laws of the United States, any state, or the District of Columbia. Subordination If Bergen's assets are distributed upon dissolution, winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest on Subordinated Debt Securities will be subordinated, to the extent provided in the Subordinated Indenture and the applicable supplemental indenture, to the prior payment in full of all senior indebtedness, including Senior Debt Securities. However, the obligation to pay principal (and premium, if any) or interest on the Subordinated Debt Securities will not be affected in any other manner. No payment on account of principal (or premium, if any), sinking fund or interest may be made on Subordinated Debt Securities at any time when there is a default in the payment of principal, premium, if any, sinking fund or interest on senior indebtedness. If, while there is a default on senior indebtedness, any payment is received by the Subordinated Trustee under the Subordinated Indenture or the holders of any Subordinated Debt Securities before all senior indebtedness has been paid in full, such payment or distribution must be paid over to the holders of the unpaid senior indebtedness or applied to the repayment of the unpaid senior indebtedness. Subject to paying the senior indebtedness in full, the holders of Subordinated Debt Securities will be subrogated to the rights of the holders of our senior indebtedness to the extent -15- that payments are made to the holders of senior indebtedness out of the distributive share of the Subordinated Debt Securities. Due to such subordination, if Bergen's assets are distributed upon insolvency, certain of our general creditors may recover more, ratably, than holders of Subordinated Debt Securities. The Subordinated Indenture or applicable supplemental indenture may state that its subordination provisions will not apply to money and securities held in trust under the satisfaction and discharge provisions and the legal defeasance provisions of the Subordinated Indenture. If this prospectus is being delivered in connection with the offering of a series of Subordinated Debt Securities, the accompanying prospectus supplement or the information incorporated by reference in it will set forth the approximate amount of senior indebtedness outstanding as of a recent date. Certain Covenants If Bergen agrees to material covenants with respect to a particular series of Debt Securities, such covenants will be described in the applicable prospectus supplement and will be added to the applicable Indenture by means of an indenture supplement. Conversion Rights The terms and conditions, if any, on which Debt Securities being offered are convertible into Common Stock or other Bergen securities will be set forth in the applicable prospectus supplement. Such terms will include the conversion price, the conversion period, provisions as to whether conversion will be at the option of the holder or Bergen, the events requiring an adjustment of the conversion price and provisions affecting conversion in the event that the Debt Securities are redeemed. Events of Default In addition to any other event of default specified in the prospectus supplement relating to a series of Debt Securities, the following are events of default under the Indentures with respect to any series of Debt Securities issued unless otherwise specified in the prospectus supplement relating to such series: * default in the payment of any principal of, or any premium on, such series; * default in the payment of any installment of interest on such series and continuance of such default for a period of 30 days; * default with respect to any obligation to make payments to a sinking fund or analogous obligation when the same becomes due by the terms of such series; * default in the performance of any other covenant in the Indenture with respect to such series and continuance of such default for a period of 90 days after receipt by Bergen of notice of such -16- default from the Trustee or receipt by Bergen and the Trustee of notice of such default from the holders of at least 25% in aggregate principal amount of the Debt Securities of such series then outstanding; * acceleration or non-payment at maturity of (i) indebtedness for borrowed money of Bergen or any subsidiary or (ii) any guarantee of payment by Bergen or any subsidiary of any obligation of any person or entity, in either case in excess of $15,000,000, which acceleration or non-payment is not cured, waived, rescinded or annulled, or such indebtedness or guarantee is not discharged, within 15 days after receipt of written notice; and * certain events of bankruptcy, insolvency or reorganization of Bergen. If a series of Subordinated Debt Securities is held by a trust, it would also be an event of default if such trust voluntarily or involuntarily dissolves, winds up or terminates, except in connection with: * the distribution of such Subordinated Debt Securities to holders of preferred and common securities of such trust; * the redemption of all of the preferred and common securities of such trust; or * mergers, consolidations or amalgamations permitted by the Declaration of such trust. If an event of default with respect to Debt Securities of any series occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of the outstanding Debt Securities of that series, by notice in writing to Bergen (and to the Trustee if notice is given by such holders), may declare due the principal of (or if such Debt Securities are discount securities, the portion of the principal amount as specified in the applicable prospectus supplement), premium, if any, and accrued interest, if any, and call for immediate payment. The holders of a majority in aggregate principal amount of the outstanding Debt Securities of an affected series (or if Subordinated Debt Securities of an affected series are held by a trust, the holders of at least a majority in aggregate liquidation amount of the trust's preferred securities) may waive any past default or event of default of such series, except defaults or events of default regarding: * payment of principal, interest or sinking fund obligations, if any; or * covenants that cannot be modified or amended without the consent of each holder of any outstanding Debt Securities affected (as described under "--Modification of Indentures; Waiver" below). Any such permitted waiver will cure such default or event of default. If the Subordinated Debt Securities of any series are held by a trust, and a Declaration Event of Default (as defined under "Description of Preferred Securities--Declaration Events of Default" below) has occurred and is attributable to the failure of Bergen to pay principal, premium, if any, or interest on, such Subordinated Debt Securities, then each holder of the preferred securities of such trust may sue Bergen, or seek other remedies to force payment to such holder of the principal of, premium, if any, or interest -17- on, such Subordinated Debt Securities having a principal amount equal to the aggregate liquidation amount of the preferred securities held by such holder. Subject to the terms of the Indenture, if an event of default under the Indenture shall occur and be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the holders of the applicable series of Debt Securities, unless such holders have offered the Trustee reasonable security or indemnity. The holders of a majority in principal amount of the outstanding Debt Securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Indenture Trustee, with respect to the Debt Securities of that series, provided that: * the direction given to the Trustee is not in conflict with any law or the Indenture; * the Trustee may take any other action deemed proper by it which is not inconsistent with such direction; and * the Trustee has not determined that the action would be unjustly prejudicial to the holders not involved in the proceeding. A holder of the Debt Securities of any series will have the right to institute a proceeding under the applicable Indenture or to appoint a receiver or trustee, or to seek other remedies only if: * the holder has given written notice to the Trustee of a continuing event of default with respect to that series; * the holders of at least 25% in aggregate principal amount of the outstanding Debt Securities of that series have made written request to, and such holders have offered reasonable indemnity to, the Trustee to institute such proceedings as trustee; and * the Trustee does not institute such proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding Debt Securities of that series other conflicting directions, within 60 days after such notice, request and offer. These limitations do not apply to a suit instituted by a holder of Debt Securities if Bergen defaults in the payment of the principal, premium, if any, or interest on, the Debt Securities. Bergen will periodically file statements with the Trustee regarding its compliance with the conditions and covenants in the Indentures. Modification of Indentures; Waiver Bergen and each Trustee may change the applicable Indenture without the consent of any holders with respect to certain matters, including: -18- * evidencing the succession of another person to Bergen and the assumption by it of Bergen's covenants in the Indenture and the Debt Securities of such series; * adding to Bergen's covenants, agreements and obligations for the benefit of the holders of the series of Debt Securities, or to surrender any right or power of Bergen under the Indenture; * evidencing and providing for the acceptance of appointment under the Indenture of a successor Trustee with respect to the securities of one or more series and to add to or change any provisions of the Indenture as may be necessary to provide for or facilitate the administration of the trusts by more than one Trustee; * curing any ambiguity or correcting any inconsistency in the Indenture if such action does not adversely affect the interests of the holders of such Debt Securities; * by means of a supplemental indenture, adding, changing or eliminating any provisions of the Indenture (which addition, change or elimination may apply to one or more series of Debt Securities) if such addition, change or elimination does not (a) apply to any security of any series created prior to the execution of such supplemental indenture that is entitled to the benefit of such provision and (b) modify existing holders' rights under such provisions; * securing the Debt Securities; or * changing anything else that does not adversely affect the interests of any holder of Debt Securities. In addition, under each Indenture, Bergen and each Trustee may change the rights of holders of a series of Debt Securities with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding Debt Securities of each affected series. However, the following changes, among other things, may be made only with the consent of each holder of any outstanding Debt Securities affected: * changing the stated maturity of such Debt Securities; * reducing the principal amount of a discount security payable upon declaration of acceleration; * reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any such Debt Securities; * changing the place or currency of payment of principal or interest, if any, on any such Debt Securities; * impairing the right to institute suit for the enforcement of any payment on or with respect to any such Debt Securities; and -19- * modifying any of the foregoing requirements or reducing the percentage of Debt Securities, the holders of which are required to consent to any amendment or waiver of any covenant or past default. If the consent of the Property Trustee of a trust, as the sole holder of Subordinated Debt Securities held by the trust, is required for any amendment, modification or termination of the Subordinated Indenture, the Property Trustee will request directions from the holders of the preferred securities of the applicable trust. Form, Exchange and Transfer Debt Securities of each series may be issued as registered securities, as bearer securities (with or without coupons) or both. Unless otherwise specified in the applicable prospectus supplement, registered securities will be issued in denominations of $1,000 and any integral multiple thereof and bearer securities will be issued in denominations of $5,000 and any integral multiple thereof. Subject to the terms of the Indentures and the limitations applicable to global securities described in the applicable prospectus supplement, registered securities will be exchangeable for other registered securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount. Subject to the terms of the relevant Indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, Debt Securities issued as registered securities may be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer duly executed) at the office of the Security Registrar or at the office of any transfer agent designated by Bergen for such purpose. Bearer securities will not be issued in exchange for registered securities. Unless otherwise provided in the Debt Securities to be transferred or exchanged, no service charge will be made for any registration of transfer or exchange, but Bergen may require payment of any taxes or other governmental charges. Bergen has appointed the Senior Indenture Trustee as Security Registrar. Any transfer agent (in addition to the Security Registrar) initially designated by Bergen for any Debt Securities will be named in the applicable prospectus supplement. Bergen may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that Bergen will be required to maintain a transfer agent in each place of payment for the Debt Securities of each series. If the Debt Securities of any series are to be redeemed, Bergen will not be required to: * issue, register the transfer of, or exchange any Debt Securities of, that series during a period beginning at the opening of business 15 days before any selection of any such Debt Securities to be redeemed and ending, in the case of registered securities, at the close of business on the day of mailing of the relevant notice of redemption and, in the case of bearer securities, the first publication date of such notice, or if the Debt Securities of such series are also issuable as registered securities and there is no publication, at the close of business on the day of mailing of such notice; -20- * in the case of registered securities, register the transfer of or exchange any Debt Securities so selected for redemption, in whole or in part, except the unredeemed portion of any such registered security being redeemed in part; or * in the case of bearer securities, exchange any Debt Securities so selected for redemption, except to exchange such bearer security for a registered security that is immediately surrendered for redemption. Global Securities The Debt Securities of each series may be issued in whole or in part in global form. A Debt Security in global form will be deposited with, or on behalf of, a depositary, which will be named in an applicable prospectus supplement. A global security may be issued in either registered or bearer form and in either temporary or definitive form. A global Debt Security may not be transferred, except as a whole, among the depositary for such Debt Security and/or its nominees and/or successors. If any Debt Securities of a series are issuable as global securities, the applicable prospectus supplement will describe any circumstances when beneficial owners of interests in any such global security may exchange such interests for definitive Debt Securities of such series and of like tenor and principal amount in any authorized form and denomination, the manner of payment of principal of and interest, if any, on any such global Debt Security and the specific terms of the depositary arrangement with respect to any such global Debt Security. Defeasance The Indentures provide Bergen with the option to discharge itself from (a) all obligations of the Debt Securities of a series (except for certain administrative obligations) or (b) compliance with certain covenants of the Indentures. To exercise either option Bergen must irrevocably deposit in trust with the Trustee money or obligations of, or guaranteed by, the United States of America sufficient to pay all of the principal of (including any mandatory redemption payments), any premium and interest on, and repurchase obligations, if any, with respect to, the Debt Securities of such series on the dates such payments are due in accordance with their terms. To exercise either option, Bergen is required to deliver to the Trustee an opinion of tax counsel that the deposit and related defeasance would not cause the holders of the Debt Securities of such series to recognize income, gain or loss for Federal income tax purposes. To exercise the option described in clause (a) above, the tax opinion must be based either on a ruling of the Internal Revenue Service or a change in the applicable Federal income tax law. Information Concerning the Trustee Each Trustee, other than during the occurrence and continuance of an event of default under the applicable Indenture, is required to perform only such duties as are specifically set forth in such Indenture. Upon an event of default under the Indenture, the Trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, each Trustee is under no obligation to exercise any of the powers given it by the Indenture at the request of any holder of Debt Securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur. The Trustee is not required -21- to spend or risk its own money or otherwise become financially liable while performing its duties unless it reasonably believes that it will be repaid or receive adequate indemnity. Chase Manhattan Bank and Trust Company, the Trustee under each of the Indentures, is also the trustee with respect to $150 million in aggregate principal amount of Bergen's 7 3/8% Senior Notes due 2003 (the "7 3/8% Notes"), $100 million in aggregate principal amount of Bergen's 7 1/4% Senior Notes due 2005 (the "7 1/4% Notes" and, collectively with the 7 3/8% Notes, the "Senior Notes"), and $8.4 million in aggregate principal amount of Bergen's 6 7/8% Exchangeable Subordinated Debentures due 2011 (the "6 7/8% Debentures"), and is the rights agent under Bergen's Shareowner Rights Plan. An affiliate of the Trustee is the transfer agent, registrar and dividend disbursing agent for Bergen's Class A Common Stock. Bergen also maintains banking relationships in the ordinary course of business with an affiliate of the Trustee. However, if Chase Manhattan Bank and Trust Company acquires any conflicting interest when an event of default is pending, it must (with certain exceptions) eliminate such conflict or resign. Payment and Paying Agents Unless otherwise indicated in the applicable prospectus supplement, payment of the interest on any Debt Securities (other than bearer securities) on any interest payment date will be made to the person in whose name such Debt Securities (or one or more predecessor securities) are registered at the close of business on the regular record date for such interest. Principal of and any premium and interest on the Debt Securities (other than bearer securities) of a particular series will be payable at the office of the paying agents designated by Bergen, except that, unless otherwise indicated in the applicable prospectus supplement, interest payments may be made by wire transfer or by check mailed to the holder. Unless otherwise indicated in such prospectus supplement, the corporate trust office of the Trustee in [The City of New York] will be designated as sole paying agent for payments with respect to Debt Securities of each series. Any other paying agents initially designated by Bergen for the Debt Securities of a particular series will be named in the applicable prospectus supplement. Bergen will be required to maintain a paying agent in each place of payment for the Debt Securities of a particular series. Unless otherwise indicated in an applicable prospectus supplement, interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. Unless otherwise indicated in an applicable prospectus supplement, payment of principal of and interest, if any, on bearer securities will be made, subject to any applicable laws and regulations, at the offices of a paying agent outside the United States as Bergen may designate, or by check mailed to any address or by transfer to an account maintained by the payee outside the United States. Unless otherwise indicated in an applicable prospectus supplement, any payment of an installment of interest on any bearer security will be made only if the coupon relating to the interest installment is surrendered. All moneys paid by Bergen to a paying agent or the Trustee for the payment of the principal of or any premium or interest on any Debt Security which remain unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to Bergen, and the holder of the security thereafter may look only to Bergen for payment thereof. -22- Governing Law The Indentures and Debt Securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable. DESCRIPTION OF PREFERRED SECURITIES General Each Declaration authorizes the Regular Trustees to issue on behalf of each trust one series of preferred securities which will have the terms described in a prospectus supplement. The proceeds from the sale of a trust's preferred and common securities will be used by such trust to purchase a series of subordinated debt securities issued by Bergen. The subordinated debt securities will be held in trust by the Property Trustee for the benefit of the holders of such preferred and common securities. Under each Preferred Securities Guarantee, Bergen will agree to make payments of distributions and payments on redemption or liquidation with respect to a trust's preferred securities, but only to the extent such trust has funds available to make those payments and has not made such payments. See "Description of Preferred Securities Guarantees." The assets of a trust available for distribution to the holders of its preferred securities will be limited to payments from Bergen under the series of subordinated debt securities held by such trust. If Bergen fails to make a payment on such subordinated debt securities, such trust will not have sufficient funds to make related payments, including distributions, on its preferred securities. Each Preferred Securities Guarantee, when taken together with Bergen's obligations under the related series of subordinated debt securities, the Subordinated Indenture and the related Declaration, will provide a full and unconditional guarantee of amounts due on the preferred securities issued by a trust. Each Declaration will be qualified as an indenture under the Trust Indenture Act. Each Property Trustee will act as indenture trustee for the preferred securities to be issued by the applicable trust, in order to comply with the provisions of the Trust Indenture Act. Each series of preferred securities will have the terms, including distributions, redemption, voting, conversion, liquidation rights and such other preferred, deferred or other special rights or such restrictions as described in the relevant Declaration or made part of such Declaration by the Trust Indenture Act or the Delaware Business Trust Act. The terms of such preferred securities will mirror the terms of the subordinated debt securities held by the trust. The prospectus supplement relating to the preferred securities of a trust will describe the specific terms of such preferred securities, including: * the name of such preferred securities; -23- * the dollar amount and number of securities issued; * any provision relating to deferral of distribution payments; * the annual distribution rate(s) (or method of determining such rate(s)), the payment date(s) and the record dates used to determine the holders who are to receive distributions; * the date from which distributions shall be cumulative; * the optional redemption provisions, if any, including the prices, time periods and other terms and conditions for which such preferred securities shall be purchased or redeemed, in whole or in part; * the terms and conditions, if any, upon which the applicable series of subordinated debt securities may be distributed to holders of such preferred securities; * the voting rights, if any, of holders of such preferred securities; * whether such preferred securities are to be convertible, indirectly, into Bergen's Class A Common Stock and, if so, the conversion rate and the extent to which such conversion rate will be subject to anti-dilution provisions; * any securities exchange on which such preferred securities will be listed; * whether such preferred securities are to be issued in book-entry form and represented by one or more global certificates and, if so, the depository for such global certificates and the specific terms of the depositary arrangements; and * any other relevant rights, preferences, privileges, limitations or restrictions of such preferred securities. Each prospectus supplement will describe certain United States federal income tax considerations applicable to the purchase, holding and disposition of the series of preferred securities covered by such prospectus supplement. Liquidation Distribution upon Dissolution Unless otherwise specified in an applicable prospectus supplement, each Declaration states that the related trust shall be dissolved: * upon the bankruptcy of Bergen; * upon the filing of a certificate of dissolution or its equivalent with respect to Bergen; -24- * upon the filing of a certificate of cancellation with respect to such trust after obtaining the consent of at least a majority in liquidation amount of the preferred and common securities of such trust, voting together as a single class; * 90 days after the revocation of the certificate of incorporation of Bergen (but only if the certificate of incorporation is not reinstated during that 90-day period); * upon the election by Bergen, effective upon notice to the related trust, the Property Trustee and the Delaware Trustee, to dissolve such trust in accordance with the terms of the preferred and common securities and all of the related subordinated debt securities held by the Property Trustee shall have been distributed to the holders of the preferred and common securities in exchange for all of such securities; or * upon the written direction to the Property Trustee from Bergen at any time to terminate the related trust and, after satisfaction of liabilities to creditors of such trust as provided by applicable law, the distribution of the related subordinated debt securities to holders of preferred and common securities in exchange for such securities, subject to the Regular Trustees' receipt of an opinion of counsel experienced in such matters to the effect that the holders of the preferred securities will not recognize any income, gain or loss for United States federal income tax purposes as a result of the dissolution of such trust and such distribution to holders of the preferred securities; * upon the redemption of all of the common and preferred securities of such trust; * if the related subordinated debt securities are convertible into Bergen's Class A Common Stock, upon the exchange of a specified percentage or amount of the common and preferred securities of such trust for such subordinated debt securities and the conversion of such subordinated debt securities into shares of Bergen's Class A Common Stock; or * upon entry of a court order for the dissolution of Bergen or such trust. Unless otherwise specified in an applicable prospectus supplement, in the event of a dissolution, after the trust pays all amounts owed to creditors, the holders of the preferred and common securities will be entitled to receive: * cash equal to the aggregate liquidation amount of each preferred and common security specified in an accompanying prospectus supplement, plus accumulated and unpaid distributions to the date of payment; unless * subordinated debt securities in an aggregate principal amount equal to the aggregate liquidation amount of the preferred and common securities are distributed to the holders of the preferred and common securities. If such trust cannot pay the full amount due on its preferred and common securities because insufficient assets are available for payment, then the amounts payable by the trust on its preferred and common securities shall be paid pro rata. However, if an event of default under the related Declaration has -25- occurred, the total amounts due on such preferred securities will be paid before any distribution on such common securities. Declaration Events of Default An event of default under the Subordinated Indenture relating to a series of subordinated debt securities is an event of default under the Declaration of the trust that owns such subordinated debt securities (a "Declaration Event of Default"). See "Description of the Debt Securities -- Events of Default". Bergen and the Regular Trustees of a trust must file annually with the Property Trustee for such trust a certificate stating whether or not they are in compliance with all the applicable conditions and covenants under the related Declaration. Upon the occurrence of a Declaration Event of Default, the Property Trustee of the applicable trust, as the sole holder of the subordinated debt securities held by such trust, will have the right under the Subordinated Indenture to declare the principal of, premium, if any, and interest on such subordinated debt securities to be immediately due and payable. If a Property Trustee fails to enforce its rights under the terms of the applicable subordinated debt securities after a holder of preferred securities has made a written request, such holder may, to the extent permitted by applicable law, sue Bergen, or seek other remedies, to enforce the Property Trustee's rights under such subordinated debt securities without first instituting a legal proceeding against such Property Trustee or any other person or entity. If Bergen fails to pay principal, premium, if any, or interest on a series of subordinated debt securities when payable, then a holder of the related preferred securities issued by a trust which owns such notes may directly sue Bergen or seek other remedies, to collect its pro rata share of payments owed. Removal and Replacement of Trustees Only the holder of a trust's common securities has the right to remove or replace the trustees of such trust. The resignation or removal of any trustee and the appointment of a successor trustee shall be effective only on the acceptance of appointment by the successor trustee in accordance with the provisions of the Declaration for such trust. Mergers, Consolidations or Amalgamations of the Trusts A trust may not consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other corporation or other body ("Merger Event"), except as described below. A trust may, with the consent of a majority of its Regular Trustees and without the consent of the holders of its preferred and common securities, consolidate, amalgamate, merge with or into, or be replaced by another trust, if: * the successor entity either -26- (1) assumes all of the obligations of the trust relating to its preferred and common securities; or (2) substitutes for such trust's preferred and common securities other securities substantially similar to such preferred and common securities ("successor securities"), so long as the successor securities rank the same as such preferred and common securities for distributions and payments upon liquidation, redemption and otherwise; * Bergen acknowledges a trustee of such successor entity who has the same powers and duties as the Property Trustee of such trust as the holder of the particular series of subordinated debt securities; * the Merger Event does not cause its preferred securities or successor securities to be downgraded by any national rating agency; * the Merger Event does not adversely affect the rights, preferences and privileges of the holders of its preferred and common securities or successor securities in any material way (other than with respect to any dilution of the holders' interest in the new entity); * the successor entity has a purpose identical to that of the trust; * prior to the Merger Event, Bergen has received an opinion of counsel from a law firm stating that (1) such Merger Event does not adversely affect the rights of the holders of the trust's preferred securities or any successor securities in any material way (other than with respect to any dilution of the holders' interest in the new entity); and (2) following the Merger Event, neither the trust nor the successor entity will be required to register as an investment company under the Investment Company Act of 1940, as amended (the "Investment Company Act"); and * Bergen guarantees the obligations of the successor entity under the successor securities in the same manner as in the applicable Preferred Securities Guarantee and the guarantee of the common securities for such trust. In addition, unless all of the holders of the preferred and common securities approve otherwise, a trust shall not consolidate, amalgamate, merge with or into, or be replaced by any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it, if such transaction would cause the trust or the successor entity to be classified other than as a grantor trust for United States federal income tax purposes. Voting Rights; Amendment of Declarations The holders of preferred securities have no voting rights except as discussed under "-- Mergers, Consolidations or Amalgamations of the Trusts" and -27- "Description of Preferred Securities Guarantees--Amendments and Assignment," and as otherwise required by law and the Declaration for the applicable trust. Except as otherwise provided in the Declaration for a particular trust or by any applicable terms of the securities, such Declaration may be amended by, and only by, a written instrument approved and executed by the Regular Trustees (or, if there are more than two Regular Trustees, a majority of the Regular Trustees); provided, however, that: * no amendment shall be made, and any such purported amendment shall be void and ineffective, to the extent the result thereof would be to: * cause such trust to fail to be classified for the purposes of United States federal income taxation as a grantor trust; * affect the powers or the rights of the Property Trustee or the Delaware Trustee without the written consent of the Property Trustee or the Delaware Trustee, as the case may be; or * cause such trust to be deemed to be an "investment company" which is required to be registered under the Investment Company Act; * at such time after such trust has issued any securities which remain outstanding, any amendment which would adversely affect the rights, privileges or preferences of any holder of such securities may be effected only with such additional requirements as may be set forth in the terms of such securities; * certain provisions in such Declaration regarding the transferability of the common securities and regarding the amendment of such Declaration cannot be amended without the consent of all of the holders of the securities; * certain provisions in such Declaration regarding Bergen cannot be amended without Bergen's consent; and * Bergen's rights to increase or decrease the number of, and appoint and remove, Trustees shall not be amended without Bergen's consent. Notwithstanding the foregoing, a Declaration may be amended from time to time by the holders of a majority in liquidation amount of the common securities and the Property Trustee, without the consent of the holders of the preferred securities, to: * cure any ambiguity; * correct or supplement any provision in such Declaration that may be defective or inconsistent with any other provision or to make any other provisions with respect to matters or questions arising under such Declaration, which shall not be inconsistent with the other provisions of such Declaration; -28- * add to the covenants, restrictions or obligations of Bergen; * to ensure the applicable trust's classification as a grantor trust for United States federal income tax purposes; and * to modify, eliminate or add to any provisions of the Declaration to such extent as shall be necessary to ensure that the applicable trust will not be required to register as an "investment company" under the Investment Company Act. Subject to certain qualifications, the Declaration may be amended by the holders of a majority in liquidation amount of the Common Securities and the Property Trustee if: * the holders of a majority in liquidation amount of the Preferred Securities consent to such amendment; and * the Regular Trustees have received an opinion of counsel experienced in such matters to the effect that such amendment or the exercise of any power granted to the Regular Trustees in accordance with such amendment will not affect the applicable trust's status as a grantor trust for United States federal income tax purposes or such trust's exemption from status as an "investment company" under the Investment Company Act. The holders of a majority in aggregate liquidation amount of the preferred securities of each trust have the right to: * direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee of the trust; or * direct the exercise of any trust or power conferred upon such Property Trustee under that trust's Declaration, including the right to direct the Property Trustee, as the holder of a series of subordinated debt securities, to (1) exercise the remedies available under the Subordinated Indenture with respect to such subordinated debt securities; (2) waive any event of default under the Subordinated Indenture that is waivable; (3) cancel an acceleration of the principal of the subordinated debt securities; or (4) consent to any amendment, modification or termination of the Subordinated Indenture or such subordinated debt securities where such consent shall be required However, if the Subordinated Indenture requires the consent of the holders of more than a majority in aggregate principal amount of a series of subordinated debt securities (a "super-majority") with respect to any such waiver or consent, -29- then the Property Trustee for such series must get approval of the holders of such super-majority in liquidation amount of such series of preferred securities. In addition, before taking any of the foregoing actions, the Property Trustee must obtain an opinion of counsel stating that, as a result of such action, the trust will continue to be classified as a grantor trust for United States federal income tax purposes. The Property Trustee of a trust will notify all preferred securities holders of such trust of any notice received from the Subordinated Indenture Trustee with respect to the subordinated debt securities held by such trust. As described in each Declaration, the Property Trustee may hold a meeting to have preferred securities holders vote on certain matters or have them approve such matters by written consent. If a vote of preferred securities holders is taken or a consent is obtained, any preferred securities that are owned by Bergen or any of its affiliates will, for purposes of the vote or consent, be treated as if they were not outstanding. This means: * Bergen and any of its affiliates will not be able to vote on or consent to matters requiring the vote or consent of holders of preferred securities; and * any preferred securities owned by Bergen or any of its affiliates will not be counted in determining whether the required percentage of votes or consents has been obtained. Information Concerning the Property Trustees For matters relating to compliance with the Trust Indenture Act, the Property Trustee of each trust will have all of the duties and responsibilities of an indenture trustee under the Trust Indenture Act. Each Property Trustee, other than during the occurrence and continuance of a Declaration Event of Default under the applicable trust, undertakes to perform only such duties as are specifically set forth in the applicable Declaration and, upon a Declaration Event of Default, must use the same degree of care and skill as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, a Property Trustee is under no obligation to exercise any of the powers given it by the applicable Declaration at the request of any holder of preferred securities unless it is offered reasonable security or indemnity against the costs, expenses and liabilities that it might incur. However, the holders of the preferred securities will not be required to offer such an indemnity where the holders, by exercising their voting rights, direct the Property Trustee to take any action following a Declaration Event of Default. Chase Manhattan Bank and Trust Company is the Senior Indenture Trustee and the Subordinated Indenture Trustee and will act as the Property Trustee and the Preferred Securities Guarantee Trustee. In addition, an affiliate of Chase Manhattan Bank and Trust Company will act as the Delaware Trustee of each of the trusts. However, if Chase Manhattan Bank and Trust Company, acquires any conflicting interest when an event of default is pending, it must (with certain exceptions) eliminate such conflict or resign. For information regarding other relationships between Bergen and Chase Manhattan Bank and Trust Company, see -30- "Description of Debt Securities - Information Concerning the Trustee." Miscellaneous The Regular Trustees of each trust are authorized and directed to conduct the affairs of and to operate such trust in such a way that * such trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act; * such trust will be classified as a grantor trust for United States federal income tax purposes; and * the subordinated debt securities held by such trust will be treated as indebtedness of Bergen for United States federal income tax purposes. Bergen and the Regular Trustees of a trust are authorized to take any action (so long as it is consistent with applicable law or the applicable certificate of trust or Declaration) that Bergen and the Regular Trustees of such trust determine to be necessary or desirable for such purposes. Holders of preferred securities have no preemptive or similar rights. A trust may not borrow money, issue debt, execute mortgages or pledge any of its assets. Governing Law Each Declaration and the related preferred securities will be governed by and construed in accordance with the laws of the State of Delaware. DESCRIPTION OF PREFERRED SECURITIES GUARANTEES General Bergen will execute a Preferred Securities Guarantee, which benefits the holders of preferred securities, at the time that a trust issues those preferred securities. Each Preferred Securities Guarantee will be qualified as an indenture under the Trust Indenture Act. Chase Manhattan Bank and Trust Company will act as indenture trustee ("Preferred Guarantee Trustee") under each Preferred Securities Guarantee for the purposes of compliance with the Trust Indenture Act. The Preferred Guarantee Trustee will hold each Preferred Securities Guarantee for the benefit of the preferred securities holders of the applicable trust. Bergen will irrevocably agree, as described in each Preferred Securities Guarantee, to pay in full, to the holders of the preferred securities issued by the applicable trust, the Preferred Securities Guarantee Payments (as defined below) (except to the extent previously paid), when and as due, regardless of any defense, right of set-off or counterclaim which such trust may have or assert. The following payments, to the extent not paid by a trust -31- ("Preferred Securities Guarantee Payments"), will be covered by the applicable Preferred Securities Guarantee: * any accrued and unpaid distributions required to be paid on the applicable preferred securities, to the extent that the trust has funds available to make the payment; * the redemption price, to the extent that the trust has funds available to make the payment; and * upon a voluntary or involuntary dissolution and liquidation of the trust (other than in connection with a distribution of subordinated debt securities to holders of such preferred securities or the redemption of all such preferred securities), the lesser of: (1) the aggregate of the liquidation amount specified in the prospectus supplement for each preferred security plus all accrued and unpaid distributions on the preferred security to the date of payment, to the extent the trust has funds available to make the payment; and (2) the amount of assets of the trust remaining available for distribution to holders of its preferred securities upon a dissolution and liquidation of the trust ("Liquidation Payment"). Bergen's obligation to make a Preferred Securities Guarantee Payment may be satisfied by directly paying the required amounts to the holders of the preferred securities or by causing the trust to pay the amounts to the holders. No single document executed by Bergen relating to the issuance of preferred securities will provide for its full, irrevocable and unconditional guarantee of the preferred securities. It is only the combined operation of Bergen's obligations under the applicable Preferred Securities Guarantee, Declaration, Subordinated Indenture and the subordinated debt securities that has the effect of providing a full, irrevocable and unconditional guarantee of a trust's obligations under its preferred securities. Status of the Preferred Securities Guarantees Each Preferred Securities Guarantee will constitute an unsecured obligation of Bergen and will rank: * subordinate and junior in right of payment to all of Bergen's other liabilities (except for those liabilities made equal or junior by their terms to any liabilities of Bergen under such Preferred Securities Guarantee); * equal with the most senior preferred or preference stock now or hereafter issued by Bergen, and with any guarantee now or hereafter issued by it in respect of any preferred or preference stock of any of its affiliates; and -32- * senior to Bergen's Class A Common Stock. Each Declaration will require that the holder of preferred securities accept the subordination provisions and other terms of the Preferred Securities Guarantee. Each Preferred Securities Guarantee will constitute a guarantee of payment and not of collection (in other words, the holder of the guaranteed security may sue Bergen, or seek other remedies, to enforce its rights under the Preferred Securities Guarantee without first suing any other person or entity). A Preferred Securities Guarantee will not be discharged except by payment of the Preferred Securities Guarantee Payments in full to the extent not previously paid or upon distribution to the applicable preferred securities holders of the corresponding series of subordinated debt securities pursuant to the appropriate Declaration. Amendments and Assignment Except with respect to any changes which do not adversely affect the rights of holders of a series of preferred securities in any material respect (in which case no consent of such holders will be required), a Preferred Securities Guarantee may be amended only with the prior approval of the holders of at least a majority in aggregate liquidation amount of such preferred securities (excluding any such preferred securities held by Bergen or any of its affiliates). A description of the way to obtain any approval is described under "Description of Preferred Securities--Voting Rights; Amendment of Declarations." All guarantees and agreements contained in a Preferred Securities Guarantee will be binding on Bergen's successors, assigns, receivers, trustees and representatives and are for the benefit of the holders of the applicable preferred securities. Preferred Securities Guarantee Events of Default An event of default under a Preferred Securities Guarantee occurs if Bergen fails to make any of its required payments or perform its obligations under such Preferred Securities Guarantee. The holders of at least a majority in aggregate liquidation amount of the preferred securities relating to each Preferred Securities Guarantee (excluding any preferred securities held by Bergen or any of its affiliates) will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Preferred Guarantee Trustee relating to such Preferred Securities Guarantee or to direct the exercise of any trust or power given to the Preferred Guarantee Trustee under such Preferred Securities Guarantee or to waive any past event of default and its consequences. Information Concerning the Preferred Securities Guarantee Trustee The Preferred Guarantee Trustee under a Preferred Securities Guarantee, other than during the occurrence and continuance of a default under such Preferred Securities Guarantee, will perform only the duties that are specifically described in such Preferred Securities Guarantee. After such a default, the Preferred Guarantee Trustee will exercise the same degree of care and skill as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, a Preferred Guarantee Trustee is under no obligation to exercise any of its powers as described in the applicable Preferred Securities Guarantee at the request of any holder of covered preferred -33- securities unless it is offered reasonable indemnity against the costs, expenses and liabilities that it might incur. Chase Manhattan Bank and Trust Company is the Senior Indenture Trustee and the Subordinated Indenture Trustee and will act as the Preferred Securities Guarantee Trustee and the Property Trustee. In addition, an affiliate of Chase Manhattan Bank and Trust Company will act as the Delaware Trustee of each of the trusts. However, if Chase Manhattan Bank and Trust Company acquires any conflicting interest when an event of default is pending, it must (with certain exceptions) eliminate such conflict or resign. For information regarding other relationships between Bergen and Chase Manhattan Bank and Trust Company, see "Description of Debt Securities - Information Concerning the Trustee." Termination of the Preferred Securities Guarantees Each Preferred Securities Guarantee will terminate once the applicable preferred securities are paid in full or upon distribution of the corresponding series of subordinated debt securities to the holders of such preferred securities or, if such subordinated debt securities are convertible into Bergen's Class A Common Stock, upon the exchange of all such preferred securities for the corresponding series of subordinated debt securities and the conversion of all such subordinated debt securities into Bergen's Class A Common Stock. Each Preferred Securities Guarantee will continue to be effective or will be reinstated if at any time any holder of preferred securities issued by the applicable trust must restore payment of any sums paid under such preferred securities or such Preferred Securities Guarantee. Governing Law Unless otherwise specified in a prospectus supplement, the Preferred Securities Guarantees will be governed by and construed in accordance with the laws of the State of Delaware. RELATIONSHIP AMONG PREFERRED SECURITIES, PREFERRED SECURITIES GUARANTEES AND SUBORDINATED DEBT SECURITIES HELD BY EACH TRUST Payments of distributions and redemption and liquidation payments due on each series of preferred securities (to the extent the applicable trust has funds available for the payments) will be guaranteed by Bergen to the extent described under "Description of Preferred Securities Guarantees." No single document executed by Bergen in connection with the issuance of any series of preferred securities will provide for its full, irrevocable and unconditional guarantee of such preferred securities. It is only the combined operation of Bergen's obligations under the applicable Preferred Securities Guarantee, Declaration, Subordinated Indenture and subordinated debt securities that has the effect of providing a full, irrevocable and unconditional guarantee of a trust's obligations under its preferred securities. As long as Bergen makes payments of interest and other payments when due on the subordinated debt securities held by a trust, such payments will be sufficient to cover the payment of distributions and redemption and liquidation payments due on the preferred securities issued by that trust, primarily because: -34- * the aggregate principal amount of the subordinated debt securities will be equal to the sum of the aggregate liquidation amount of the preferred and common securities; * the interest rate and interest and other payment dates on the subordinated debt securities will match the distribution rate and distribution and other payment dates for the preferred securities; * Bergen will pay for any and all costs, expenses and liabilities of each trust except such trust's obligations under its preferred securities (and Bergen has agreed to guarantee such payments); and * each Declaration provides that the related trust will not engage in any activity that is not consistent with the limited purposes of the trust. If and to the extent that Bergen does not make payments on such subordinated debt securities, such trust will not have funds available to make payments of distributions or other amounts due on its preferred securities. In those circumstances, you will not be able to rely upon the Preferred Securities Guarantee for payment of these amounts. Instead, you may directly sue Bergen or seek other remedies to collect your pro rata share of payments owed. If you sue Bergen to collect payment, then Bergen will assume your rights as a holder of preferred securities under such trust's Declaration to the extent Bergen makes a payment to you in any such legal action. A holder of any preferred security may sue Bergen, or seek other remedies, to enforce its rights under the applicable Preferred Securities Guarantee without first suing the applicable Preferred Guarantee Trustee, the trust which issued the preferred security or any other person or entity. DESCRIPTION OF CLASS A COMMON STOCK As of December 31, 1998, Bergen was authorized to issue 200,000,000 shares of Class A Common Stock. At Bergen's 1999 Annual Meeting of Shareowners, Bergen's shareowners will be asked to approve an amendment to Bergen's Certificate of Incorporation increasing the number of shares of Class A Common Stock which Bergen will be authorized to issue to 300,000,000 shares. As of December 31, 1998, there were 103,567,106 shares of Class A Common Stock outstanding. Additional shares of Class A Common Stock have been reserved for outstanding stock options, for subsequent grants under Bergen's benefit plans and for acquisitions by Bergen and its subsidiaries. Below is a general description of the Class A Common Stock to which a prospectus supplement may relate, including a prospectus supplement providing that Class A Common Stock will be issuable by Bergen upon conversion of Preferred Securities. * Holders of Class A Common Stock are entitled to receive such dividends as are declared by the Board of Directors, subject to the preference of any outstanding Preferred Stock of Bergen. -35- * Payment and declaration of dividends on the Class A Common Stock will be subject to restrictions if Bergen fails to pay dividends on any series of Bergen's Preferred Stock ranking prior to the Class A Common Stock as to the payment of dividends. * Holders of Class A Common Stock are entitled to cast one vote per share on all matters voted upon by shareowners. There is no cumulative voting for the election of directors. * Holders of the Class A Common Stock do not have any pre-emptive rights. * Upon liquidation of Bergen, holders of Class A Common Stock are entitled to share on a pro rata basis any assets remaining for distribution to them. * The registrar, transfer agent and dividend disbursing agent for the Class A Common Stock is ChaseMellon Shareholder Services. The prospectus supplement utilized in connection with an offering of Preferred Securities will specify whether or not the Preferred Securities being offered will be convertible into Bergen's Class A Common Stock. If a series of Preferred Securities is convertible, the prospectus supplement will indicate: * the conversion ratio, which reflects the number of shares of Class A Common Stock that a holder of Preferred Securities would receive if the holder converted the holder's Preferred Securities into Class A Common Stock; * the events, such as a stock dividend or a stock split, that will result in an adjustment to the conversion ratio; * whether, and to what extent, the Preferred Securities will be mandatorily convertible into Class A Common Stock; and * any restrictions that may exist on the right of a holder of Preferred Securities to convert Preferred Securities into Class A Common Stock. OTHER MATTERS APPLICABLE TO THE SECURITIES On February 9, 1994, the Board of Directors of Bergen adopted a Rights Plan (the "Shareowner Rights Plan") which provided for a dividend of one Preferred Share Purchase Right (collectively, the "Rights") to be declared for each share of Class A Common Stock outstanding at the close of business on February 18, 1994 and authorized the issuance of one Right for each share of Class A Common Stock issued thereafter and prior to certain change in control events. The Rights are generally not exercisable until 10 days after a person or group acquires beneficial ownership (as defined) of 15% of the Class A Common Stock or announces a tender offer which could result in a person or group beneficially owning 15% or more of the Class A Common Stock (an "Acquisition"). Each Right, should it become exercisable, will entitle the owner to buy 1/100th of a share of Bergen's Series A Junior Preferred Stock at an exercise price of $80.00, subject to adjustment. In the event of an Acquisition without the approval of the Board, each Right will entitle the owner, other than an Acquiror -36- (as defined), to buy at the Rights' then current exercise price, a number of shares of Class A Common Stock having a market value equal to twice the exercise price. In addition, if at the time when there was a 15% shareowner, Bergen were to be acquired by merger, shareowners with unexercised Rights could purchase common stock of the acquiror having a value equal to twice the exercise price of the Rights. The Board may redeem the Rights for $0.01 per Right at any time prior to an Acquisition. Unless earlier redeemed, the Rights will expire on February 18, 2004. In addition to the Shareowner Rights Plan, the staggered election of Bergen's Board of Directors, the authority to issue Preferred Stock without further shareowner approval, the effect of certain by-laws, the possible impact of the antitrust laws and certain provisions of New Jersey statutes may deter a hostile takeover of Bergen. PLAN OF DISTRIBUTION Bergen may sell the senior debt securities or subordinated debt securities and a trust may sell its preferred securities being offered hereby in one or more of the following ways from time to time: * to underwriters for resale to the public or to institutional investors; * directly to institutional investors; * directly to agents; * through agents to the public or to institutional investors; or * if indicated in the prospectus supplement, pursuant to delayed delivery contracts, by remarketing firms or by other means. The prospectus supplements will set forth the terms of the offering of each series of securities, including the name or names of any underwriters or agents, the purchase price of such securities and the proceeds to Bergen or the applicable trust, as the case may be, from such sale, any underwriting discounts or agency fees and other items constituting underwriters' or agents' compensation, any discounts or concessions allowed or reallowed or paid to dealers and any securities exchanges on which such securities may be listed. If underwriters are utilized in the sale, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or prices, which may be changed, or at market or varying prices determined at the time of sale. Unless otherwise set forth in a prospectus supplement, the obligations of the underwriters to purchase any series of securities will be subject to certain conditions precedent and the underwriters will be obligated to purchase all of such series of securities, if any are purchased. -37- If a dealer is utilized in the sale of securities, Bergen will sell such securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. Securities may also be offered and sold, if so indicated in the prospectus supplement, in connection with a remarketing agreement upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more firms ("remarketing firms") acting as principals for their own accounts or as agents for Bergen. Any remarketing firm will be identified and the terms of its agreement, if any, with Bergen and its compensation will be described in the prospectus supplement. Underwriters, agents, dealers and remarketing firms may be entitled under agreements entered into with Bergen and/or a trust to indemnification by Bergen and/or such trust against certain civil liabilities, including liabilities under the Securities Act of 1933, or to contribution with respect to payments which the underwriters or agents may be required to make in respect thereof. Underwriters, agents, dealers and remarketing firms may be customers of, engage in transactions with, or perform services for Bergen and its affiliates in the ordinary course of business. Each series of securities will be a new issue of securities and will have no established trading market. Any underwriters to whom securities are sold by Bergen or by the trusts for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities may or may not be listed on a national securities exchange or a foreign securities exchange. LEGAL OPINIONS The validity of the senior debt securities, the subordinated debt securities, the Preferred Securities Guarantees and certain related matters will be passed on for Bergen by Lowenstein Sandler PC, Roseland, New Jersey. EXPERTS The consolidated financial statements of Bergen and its subsidiaries for the fiscal year ended September 30, 1998, included in Bergen's Annual Report on Form 10-K for the fiscal year ended September 30, 1998, which are incorporated by reference in this prospectus, have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report with respect thereto, and have been incorporated by reference herein in reliance upon the report of such firm, given upon their authority as experts in accounting and auditing. -38- We have not authorized any person to make | a statement that differs from what is in | this prospectus. If any person does make | $300,000,000 a statement that differs from what is in | this prospectus, you should not rely on it.| BERGEN BRUNSWIG CORPORATION This prospectus is not an offer to sell, | BERGEN CAPITAL TRUST I nor is it seeking an offer to buy, these | BERGEN CAPITAL TRUST II securities in any state in which the offer | BERGEN CAPITAL TRUST III or sale is not permitted. The information | in this prospectus is complete and accurate| as of this date, but the information may | change after that date. | Securities | PROSPECTUS | | ________, 1999 -39- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. Other Expenses Of Issuance And Distribution. The following table sets forth the expenses to be borne by Bergen in connection with the offerings described in this Registration Statement. SEC filing fee............................................ $ 83,400 Printing fees and expenses................................ 75,000 Accounting fees and expenses.............................. 30,000 Rating agency fees........................................ 225,000 Legal fees and expenses................................... 75,000 Trustee fees and expenses................................. 30,000 Blue sky fees and expenses................................ 10,000 Miscellaneous............................................. 21,600 -------- Total..................................................... $550,000 ======== ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under Bergen's Restated Certificate of Incorporation, every person who is or was a director, officer, employee or agent of Bergen (including any such person in his or her capacity as a Regular Trustee) and the legal representative of such a person is entitled to receive indemnification from Bergen to the fullest extent permitted by law. Under New Jersey law, directors and officers may be indemnified in certain situations, subject to Bergen's having taken certain actions and the directors and officers having met certain specified standards of conduct. In addition, in April, 1986, Bergen entered into agreements, which were amended on July 3, 1986 (collectively, the "Indemnity Agreement"), to indemnify each of its directors against liabilities and defense costs to the extent that such directors would have been insured under the director and officer liability insurance policies which were in effect on December 31, 1984 (the "1984 Policy"). The 1984 Policy afforded the broadest coverage for liabilities arising under ERISA and the securities and anti-trust laws. The obligation of Bergen to indemnify a director under the Indemnity Agreement is limited to $30 million, the maximum coverage available under the 1984 Policy. However, the Indemnity Agreement does not limit a director's right to recover in excess of $30 million from Bergen if the director is otherwise entitled to statutory indemnification. The Indemnity Agreement was ratified by the shareowners at the annual meeting held on December 17, 1986. Bergen currently maintains an insurance policy which provides liability coverage with respect to its directors and officers. In addition, Bergen's Restated Certificate of Incorporation eliminates the personal liability of directors and officers to Bergen and its shareowners for monetary damages for acts or omissions (including negligent and grossly negligent acts or omissions) in violation of a director's or officer's fiduciary duty of care. The duty of care refers to a fiduciary duty of directors and officers to manage the affairs of Bergen with the same degree of care as would be applied by an "ordinarily prudent person under similar circumstances". The provisions of Bergen's Restated Certificate of Incorporation which eliminate the personal liability of directors and officers do not, in any way, eliminate or -40- limit the liability of a director or officer for breaching his duty of loyalty (i.e., the duty to refrain from fraud, self-dealing and transactions involving improper conflicts of interest) to Bergen or its shareowners, failing to act in good faith, knowingly violating a law or obtaining an improper personal benefit and do not have any effect on the availability of equitable remedies. The Declaration of Trust of each trust provides that no Trustee, affiliate of any Trustee, or any officers, directors, shareholders, members, partners, employees, representatives or agents of any Trustee, or any employee or agent of such trust or its affiliates (each an Indemnified Person) shall be liable, responsible or accountable in damages or otherwise to such trust or any employee or agent of the trust or its affiliates or to any holder for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of such trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by such Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's gross negligence or willful misconduct with respect to such acts or omissions (subject to certain qualifications with respect to the Property Trustee). The Declaration of Trust of each trust also requires Bergen, to the fullest extent permitted by applicable law, to indemnify and hold harmless each Indemnified Person from and against any loss, damage or claim incurred by such Indemnified Person by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of such trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such person by such Declaration, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of gross negligence or willful misconduct with respect to such act or omissions (subject to certain qualifications with respect to the Property Trustee). The Declaration of each trust further provides that reasonable expenses (including legal fees) incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by Bergen prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by Bergen of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified for the underlying cause of action as authorized by such Declaration. The directors and officers of Bergen and the Regular Trustees of each trust are covered by insurance policies indemnifying against certain liabilities, including certain liabilities arising under the Securities Act which might be incurred by them in such capacities. -41- ITEM 16. Exhibits. 1.1 Form of Underwriting Agreement (Preferred Securities).* 1.2 Form of Underwriting Agreement (Debt Securities)* 3.1 Certificate of Trust of Bergen Capital Trust I. 3.2 Certificate of Trust of Bergen Capital Trust II. 3.3 Certificate of Trust of Bergen Capital Trust III. 4.1 Declaration of Trust of Bergen Capital Trust I. 4.2 Declaration of Trust of Bergen Capital Trust II. 4.3 Declaration of Trust of Bergen Capital Trust III. 4.4 Form of Amended and Restated Declaration of Trust. 4.5 Form of Indenture (Senior Debt Securities), dated as of March 1, 1996, between Bergen and Chase Manhattan Bank and Trust Company, National Association, as Trustee (incorporated by reference from Exhibit 4.4 to Bergen's Registration Statement on Form S-3 (File No. 333-631), filed with the Commission on March 19, 1996). 4.6 Form of Indenture (Subordinated Debt Securities), dated as of March 1, 1996, between Bergen and Chase Manhattan Bank and Trust Company, National Association, as Trustee (incorporated by reference from Exhibit 4.5 to Bergen's Registration Statement on Form S-3 (File No. 333-631), filed with the Commission on March 19, 1996). 4.7 Form of Preferred Security (included in Exhibit 4.4). 4.8 Form of Preferred Securities Guarantee. 4.9 Form of Common Securities Guarantee. 4.10 The Restated Certificate of Incorporation dated November 13, 1998 is incorporated by reference to Exhibit 4.1 to the Registrant's Post Effective Amendment No. 2 to Form S-3 dated December 17, 1998 (file no.333-63441). 4.11 The By-Laws, as amended and restated, dated November 13, 1998 are incorporated by reference to Exhibit 4.2 to the Registrant's Post Effective Amendment No. 2 to Form S-3 dated December 17, 1998 (file no.333-63441). 4.12 Rights Agreement, dated as of February 8, 1994, between the Registrant and Chase Manhattan Bank and Trust Company, National Association, as Rights Agent, is incorporated by reference herein to Exhibit 1 to the Registrant's Registration Statement on Form 8-A dated February 14, 1994. 5.1 Opinion of Lowenstein Sandler PC* 12.1 Statement regarding the computation of ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends. -42- 23.1 Consent of Lowenstein Sandler PC (to be included in Exhibit 5.1). 23.2 Consent of Deloitte & Touche LLP 24.1 Powers of Attorney. 25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee under the Indenture (Senior Debt Securities) (incorporated by reference from Exhibit 25.1 to Bergen's Registration Statement on Form S-3 (File No.333-631), filed with the Commission on March 19, 1996). 25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee under the Indenture (Subordinated Debt Securities) (incorporated by reference from Exhibit 25.1 to Bergen's Registration Statement on Form S-3 (File No.333-631), filed with the Commission on March 19, 1996). 25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Property Trustee--Bergen Capital Trust I.* 25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Property Trustee--Bergen Capital Trust II.* 25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Property Trustee--Bergen Capital Trust III.* 25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee under the Preferred Securities Guarantee--BBC Capital Trust I.* 25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee under the Preferred Securities Guarantee--BBC Capital Trust II.* 25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee under the Preferred Securities Guarantee--BBC Capital Trust III.* * To be filed by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference in the Registration Statement. -43- ITEM 17. 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 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. (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 the 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 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 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) Bergen Capital Trust I, Bergen Capital Trust II and Bergen Capital Trust III each hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser. (e) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act ("Act") in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act. -44- SIGNATURES Pursuant to the requirements of the Securities Act, Bergen Brunswig Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Orange, State of California, on March 11, 1999. BERGEN BRUNSWIG CORPORATION By: /s/ Donald R. Roden -------------------------------- Donald R. Roden, President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. /s/ Robert E. Martini* Chairman of the March 11, 1999 - ---------------------------- Board and Director Robert E. Martini /s/ Donald R. Roden President, Chief March 11, 1999 - ---------------------------- Executive Officer and Director Donald R. Roden /s/ Neil F. Dimick Executive Vice President, March 11, 1999 - ---------------------------- Chief Financial Officer Neil F. Dimick and Director (Principal Financial Officer and Principal Accounting Officer) /s/ Director March __, 1999 - ---------------------------- Jose E. Blanco, Sr. /s/ Rodney H. Brady* Director March 11, 1999 - ---------------------------- Rodney H. Brady /s/ Director March __, 1999 - ---------------------------- Charles C. Edwards, M.D. /s/ Charles J. Lee* Director March 11, 1999 - ---------------------------- Charles J. Lee /s/ Director March __, 1999 - ---------------------------- George R. Liddle /s/ Director March __, 1999 - ---------------------------- James R. Mellor -45- /s/ George E. Reinhardt, Jr.* Director March 11, 1999 - ---------------------------- George E. Reinhardt, Jr. /s/ Director March __, 1999 - ---------------------------- Francis G. Rodgers *By: /s/ Milan A. Sawdei ------------------------ Milan A. Sawdei, Attorney-in-Fact -46- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Bergen Capital Trust I certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Amendment to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Orange, State of California, on March 11, 1999. BERGEN CAPITAL TRUST I By: /s/ Donald R. Roden ---------------------------------------------- Donald R. Roden, Regular Trustee By: /s/ Neil F. Dimick ---------------------------------------------- Neil F. Dimick, Regular Trustee By: /s/ Milan A. Sawdei ---------------------------------------------- Milan A. Sawdei, Regular Trustee -47- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Bergen Capital Trust II certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Amendment to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Orange, State of California, on March 11, 1999. BERGEN CAPITAL TRUST II By: /s/ Donald R. Roden ---------------------------------------------- Donald R. Roden, Regular Trustee By: /s/ Neil F. Dimick ---------------------------------------------- Neil F. Dimick, Regular Trustee By: /s/ Milan A. Sawdei ---------------------------------------------- Milan A. Sawdei, Regular Trustee -48- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Bergen Capital Trust III certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Amendment to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Orange, State of California, on March 11, 1999. BERGEN CAPITAL TRUST III By: /s/ Donald R. Roden ---------------------------------------------- Donald R. Roden, Regular Trustee By: /s/ Neil F. Dimick ---------------------------------------------- Neil F. Dimick, Regular Trustee By: /s/ Milan A. Sadei ---------------------------------------------- Milan A. Sawdei, Regular Trustee -49- EXHIBIT INDEX 1.1 Form of Underwriting Agreement (Preferred Securities).* 1.2 Form of Underwriting Agreement (Debt Securities)* 3.1 Certificate of Trust of Bergen Capital Trust I. 3.2 Certificate of Trust of Bergen Capital Trust II. 3.3 Certificate of Trust of Bergen Capital Trust III. 4.1 Declaration of Trust of Bergen Capital Trust I. 4.2 Declaration of Trust of Bergen Capital Trust II. 4.3 Declaration of Trust of Bergen Capital Trust III. 4.4 Form of Amended and Restated Declaration of Trust. 4.5 Form of Indenture (Senior Debt Securities), dated as of March 1, 1996, between Bergen and Chase Manhattan Bank and Trust Company, National Association, as Trustee (incorporated by reference from Exhibit 4.4 to Bergen's Registration Statement on Form S-3 (File No. 333-631), filed with the Commission on March 19, 1996). 4.6 Form of Indenture (Subordinated Debt Securities), dated as of March 1, 1996, between Bergen and Chase Manhattan Bank and Trust Company, National Association, as Trustee (incorporated by reference from Exhibit 4.5 to Bergen's Registration Statement on Form S-3 (File No. 333-631), filed with the Commission on March 19, 1996). 4.7 Form of Preferred Security (included in Exhibit 4.4). 4.8 Form of Preferred Securities Guarantee. 4.9 Form of Common Securities Guarantee. 4.10 The Restated Certificate of Incorporation dated November 13, 1998 is incorporated by reference to Exhibit 4.1 to the Registrant's Post Effective Amendment No. 2 to Form S-3 dated December 17, 1998 (file no.333-63441). 4.11 The By-Laws, as amended and restated, dated November 13, 1998 are incorporated by reference to Exhibit 4.2 to the Registrant's Post Effective Amendment No. 2 to Form S-3 dated December 17, 1998 (file no.333-63441). 4.12 Rights Agreement, dated as of February 8, 1994, between the Registrant and Chase Manhattan Bank and Trust Company, National Association, as Rights Agent, is incorporated by reference herein to Exhibit 1 to the Registrant's Registration Statement on Form 8-A dated February 14, 1994. 5.1 Opinion of Lowenstein Sandler PC* 12.1 Statement regarding the computation of ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends. -50- 23.1 Consent of Lowenstein Sandler PC (to be included in Exhibit 5.1). 23.2 Consent of Deloitte & Touche LLP 24.1 Powers of Attorney. 25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee under the Indenture (Senior Debt Securities) (incorporated by reference from Exhibit 25.1 to Bergen's Registration Statement on Form S-3 (File No.333-631), filed with the Commission on March 19, 1996). 25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee under the Indenture (Subordinated Debt Securities) (incorporated by reference from Exhibit 25.1 to Bergen's Registration Statement on Form S-3 (File No.333-631), filed with the Commission on March 19, 1996). 25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Property Trustee--Bergen Capital Trust I.* 25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Property Trustee--Bergen Capital Trust II.* 25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Property Trustee--Bergen Capital Trust III.* 25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee under the Preferred Securities Guarantee--BBC Capital Trust I.* 25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee under the Preferred Securities Guarantee--BBC Capital Trust II.* 25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee under the Preferred Securities Guarantee--BBC Capital Trust III.* * To be filed by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference in the Registration Statement. -51- EX-3.1 2 CERTIFICATE OF TRUST BERGEN CAPITAL TRUST I Exhibit 3.1 CERTIFICATE OF TRUST OF BERGEN CAPITAL TRUST I THIS Certificate of Trust of Bergen Capital Trust I (the "Trust"), dated March __, 1999 is being duly executed and filed on behalf of the Trust by the undersigned, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. Sec 3801 et seq.) (the "Act"). 1. Name. The name of the business trust formed by this Certificate of Trust is Bergen Capital Trust I. 2. Delaware Trustee. The name and business address of the trustee of the Trust in the State of Delaware are Chase Manhattan Bank Delaware. 3. Effective Date. This Certificate of Trust shall be effective upon filing. IN WITNESS WHEREOF, the undersigned, being all of the trustees of the trust, have duly executed this Certificate of Trust in accordance with Section 3811(a)(1) of the Act. - ------------------------------- Donald R. Roden, as a Regular Trustee - ------------------------------- Neil F. Dimick, as a Regular Trustee - ------------------------------- Milan A. Sawdei, as a Regular Trustee CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee By: ____________________________ Name: _________________________ Title: __________________________ CHASE MANHATTAN BANK DELAWARE As Delaware Trustee By: ____________________________ Name: _________________________ Title: __________________________ -52- EX-3.2 3 CERTIFICATE OF TRUST OF BERGEN CAPITAL TRUST II Exhibit 3.2 CERTIFICATE OF TRUST OF BERGEN CAPITAL TRUST II THIS Certificate of Trust of Bergen Capital Trust II (the "Trust"), dated March __, 1999 is being duly executed and filed on behalf of the Trust by the undersigned, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. Sec 3801 et seq.) (the "Act"). 1. Name. The name of the business trust formed by this Certificate of Trust is Bergen Capital Trust II. 2. Delaware Trustee. The name and business address of the trustee of the Trust in the State of Delaware are Chase Manhattan Bank Delaware. 3. Effective Date. This Certificate of Trust shall be effective upon filing. IN WITNESS WHEREOF, the undersigned, being all of the trustees of the trust, have duly executed this Certificate of Trust in accordance with Section 3811(a)(1) of the Act. - ---------------------------------- Donald R. Roden, as a Regular Trustee - ---------------------------------- Neil F. Dimick , as a Regular Trustee - ---------------------------------- Milan A. Sawdei, as a Regular Trustee CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee By: _______________________________ Name: ____________________________ Title: _____________________________ CHASE MANHATTAN BANK DELAWARE As Delaware Trustee By: _______________________________ Name: _________________________ Title: ________________________ -53- EX-3.3 4 CERTIFICATE OF TRUST OF BERGEN CAPITAL TRUST III Exhibit 3.3 CERTIFICATE OF TRUST OF BERGEN CAPITAL TRUST III THIS Certificate of Trust of Bergen Capital Trust III (the "Trust"), dated March __, 1999 is being duly executed and filed on behalf of the Trust by the undersigned, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. Sec 3801 et seq.) (the "Act"). 1. Name. The name of the business trust formed by this Certificate of Trust is Bergen Capital Trust III. 2. Delaware Trustee. The name and business address of the trustee of the Trust in the State of Delaware are Chase Manhattan Bank Delaware. 3. Effective Date. This Certificate of Trust shall be effective upon filing. IN WITNESS WHEREOF, the undersigned, being all of the trustees of the trust, have duly executed this Certificate of Trust in accordance with Section 3811(a)(1) of the Act. - ---------------------------------- Donald R. Roden, as a Regular Trustee - ---------------------------------- Neil F. Dimick, as a Regular Trustee - ---------------------------------- Milan A. Sawdei, as a Regular Trustee CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee By: _______________________________ Name: _____________________________ Title: ______________________________ CHASE MANHATTAN BANK DELAWARE As Delaware Trustee By: _______________________________ Name: _________________________ Title: ________________________ -54- EX-4.1 5 DECLARATION OF TRUST OF BERGEN CAPITAL TRUST I Exhibit 4.1 DECLARATION OF TRUST OF BERGEN CAPITAL TRUST I This DECLARATION OF TRUST ("Declaration"), dated and effective as of March __, 1999, by the undersigned trustees (together with all other Persons (as defined herein) from time to time duly appointed and serving as trustees in accordance with the provisions of this Declaration, the "Trustees") and the Parent (as defined herein) as trust sponsor (the "Sponsor"), WITNESSETH THAT WHEREAS, the Trustees and the Sponsor desire to establish a trust (the "Trust") pursuant to the Delaware Business Trust Act (as defined herein) for the sole purpose of issuing and selling certain securities representing undivided beneficial interests in the assets of the Trust and investing the proceeds thereof in certain Subordinated Debt Securities (as defined herein) of the Parent; NOW, THEREFORE, it being the intention of the parties hereto that the Trust constitute a business trust under the Delaware Business Trust Act and that this Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the benefit of the holders, from time to time, of the securities representing undivided beneficial interests issued hereunder, subject to the provisions of this Declaration. ARTICLE I DEFINITIONS Section 1.1 Definitions; Interpretation (a) Capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1. (b) A term defined anywhere in this Declaration has the same meaning throughout. (c) All references to "the Declaration" or "this Declaration" are to this Declaration of Trust as modified, supplemented or amended from time to time. (d) All references in this Declaration to Articles and Sections and to Exhibits are to Articles and Sections of and Exhibits to this Declaration unless otherwise specified. (e) A reference to the singular includes the plural and vice versa. (f) The following terms shall have the following meanings: -55- "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act of 1933, as amended. "Certificate of Trust" means a certificate of trust substantially in the form of Exhibit A annexed hereto to be filed pursuant to the Delaware Business Trust Act. "Business Day" means any day other than a day on which banking institutions in New York, New York are authorized or required by law to close. "Common Security" means a security representing an undivided beneficial interest in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. "Covered Person" means any employee or agent of the Trust or its Affiliates. "Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time. "Delaware Secretary of State" means the Office of the Secretary of State of the State of Delaware. "Delaware Trustee" has the meaning set forth in Section 3.1. "Indemnified Person" means any Trustee (in its individual and trust capacities), any Affiliate of any Trustee or any officers, directors, shareholders, members, partners, employees, representatives or agents of any Trustee or any employee or agent of the Trust or its Affiliates. "Parent" means Bergen Brunswig Corporation, a New Jersey corporation. "Person" means any individual, joint venture, partnership, corporation, association, joint stock company, limited liability company, trust, unincorporated organization or other entity. "Preferred Security" means a security representing an undivided beneficial interest in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. "Property Trustee" has the meaning set forth in Section 3.1. "Regular Trustee" means any Trustee other than the Delaware Trustee or the Property Trustee. "Securities" means the Common Securities and the Preferred Securities. "Sponsor" means the Parent in its capacity as Sponsor of the Trust. "Subordinated Debt Securities" means the series of subordinated debt securities to be issued by the Parent. -56- "Trustee" or "Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and servicing as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. ARTICLE II ORGANIZATION Section 2.1 Name The Trust created by this Declaration is named "Bergen Capital Trust I." The Trust's activities may be conducted under the name of the Trust or any other name deemed advisable by the Regular Trustees. Section 2.2 Office The address of the principal office of the Trust is 4000 Metropolitan Drive, Orange California 92868. At any time, the Regular Trustees may designate another principal office. Section 2.3 Purpose The exclusive purposes and functions of the Trust are (a) to issue and sell Securities and use the proceeds from such sale to acquire the Subordinated Debt Securities, and (b) except as otherwise limited herein, to engage in only those other activities necessary or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments or, other than as permitted herein, pledge any of its assets. Section 2.4 Authority Subject to the limitations provided in this Declaration, the Regular Trustees shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust. In dealing with the Regular Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of the Regular Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Regular Trustees as set forth in this Declaration. Section 2.5 Title To Property of the Trust Legal title to all assets of the Trust shall be vested in the Trust. Section 2.6 Powers of the Trustees The Regular Trustees shall have the exclusive power and authority to cause the Trust to engage in the following activities: -57- (a) to issue and sell Preferred Securities and Common Securities in accordance with this Declaration and, in connection with such issue and sale, to cause the Trust to file with the Securities and Exchange Commission a registration statement on Form S-3 in relation to the Preferred Securities, including any pre-effective and post-effective amendments thereto (including any Registration Statement filed under Rule 462(b) of the Securities Act); provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities; (b) employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and provide for reasonable compensation for such services; (c) to incur expenses which are necessary or incidental to carry out any of the purposes of this Declaration; (d) execute and enter into an underwriting agreement in connection with the issuance of Preferred Securities; and (e) execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing. Section 2.7 Filing of Certificate of Trust On or after the date of execution of this Declaration, the Trustees shall cause the filing of a Certificate of Trust for the Trust with the Delaware Secretary of State. ARTICLE III TRUSTEES Section 3.1 Trustees The number of Trustees shall initially be five (5), and thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument signed by the Sponsor. The Sponsor is entitled to appoint or remove without cause any Trustee at any time; provided, however, that the number of Trustees shall in no event be less than five (5); and provided, further, that one Trustee, in the case of a natural person, shall be a person who is a resident of the State of Delaware or which, if not a natural person, has its principal place of business in the State of Delaware (the "Delaware Trustee"). Except as expressly set forth in this Declaration, any power of the Regular Trustees may be exercised by, or with the consent of, a majority of the Regular Trustees. The initial Regular Trustees shall be Donald R. Roden, Neil F. Dimick and Milan A. Sawdei, each having the same address as the Trust. The initial Delaware Trustee shall be Chase Manhattan Bank Delaware, having an address at 1201 Market Street, Wilmington, Delaware 19801. The initial -58- property trustee (the "Property Trustee") shall be Chase Manhattan Bank and Trust Company, National Association, having an address at 101 California Street, Suite 2725, San Francisco, California 94111. Each of the Delaware Trustee and the Property Trustee may resign as Trustee of the Trust by giving not less than thirty (30) days prior written notice of resignation to any Regular Trustee; provided, however, that no such resignation of the Delaware Trustee shall be effective until a successor Delaware Trustee has been appointed and has accepted such appointment by instrument executed by such successor Delaware Trustee and delivered to the Trust, the Sponsor and the resigning Delaware Trustee and that no such resignation of the Property Trustee shall be effective until a successor Property Trustee has been appointed and has accepted such appointment by instrument executed by such successor Property Trustee and delivered to the Trust, the Sponsor and the resigning Property Trustee. Section 3.2 Delaware Trustee and Property Trustee Notwithstanding any other provision of this Declaration, neither the Delaware Trustee nor the Property Trustee shall be entitled to exercise any of the powers or shall have any of the responsibilities described in this Declaration of the Regular Trustees. Further, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Delaware Business Trust Act. Section 3.3 Execution of Documents (a) Any two Regular Trustees are authorized to execute on behalf of the Trust the Registration Statement referred to in Section 2.6(a) and any amendments thereto and any other documents that the Regular Trustees have the power and authority to execute pursuant to Section 2.6. (b) A Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of signing the Registration Statement referred to in Section 2.6(a) and any amendment thereto or making any other governmental filing. ARTICLE IV LIMITATION OF LIABILITY OF SPONSOR, TRUSTEES OR OTHERS Section 4.1 Liability (a) Except as expressly set forth in this Declaration, the Sponsor shall not be: (i) personally liable for the return of any portion of the capital contributions (or any return thereon) of the holders of the Securities which shall be made solely from assets of the Trust; or (ii) required to pay to the Trust or to any holder of Securities any deficit upon dissolution or otherwise. -59- (b) The Sponsor shall be liable for all fees and expenses related to the Trust and each offering of the Securities and shall be liable for all ongoing costs and expenses of the Trust, except the Trust's obligations under the Securities (such exception to include, without limitation, the returns described in Section 4.1(a)(i) and the deficit payment described in Section 4.1(a)(ii)). Section 4.2 Exculpation (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's gross negligence or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which distributions to holders of Securities might properly be paid. Section 4.3 Fiduciary Duty (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the Trust or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person. (b) Unless otherwise expressly provided herein, whenever (i) a conflict of interest exists or arises between Covered Persons or (ii) this Declaration or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any holder of Securities, the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise. -60- (c) Whenever in this Declaration an Indemnified Person is permitted or required to make a decision in its "discretion" or under a grant of similar authority, the Indemnified Person (a) shall be entitled to consider such interests and factors as it desires, including its own interests, (b) shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person and (c) shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law. Whenever in this Declaration an Indemnified Person is permitted or required to make a decision in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law. Section 4.4 Indemnification. (a) To the fullest extent permitted by applicable law, the Sponsor shall indemnify and hold harmless each Indemnified Person from and against any loss, liability, action, suit, cost, expense, damage or claim incurred by such Indemnified Person by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Declaration, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of gross negligence or willful misconduct with respect to such acts or omissions. (b) To the fullest extent permitted by applicable law, expenses (including, without limitation, legal fees) incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Sponsor prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified as authorized in Section 4.4(a). (c) The Sponsor agrees to pay the Property Trustee and the Delaware Trustee from time to time such compensation for all services rendered by the Property Trustee and the Delaware Trustee hereunder as may be mutually agreed upon in writing by the Sponsor and the Property Trustee and the Delaware Trustee, as the case may be, and, except as otherwise expressly provided herein, to reimburse the Property Trustee and the Delaware Trustee upon its or their request for all reasonable expenses, disbursements and advances incurred or made by the Property Trustee or the Delaware Trustee, as the case may be, in accordance with the provisions of this Declaration, except any such expense, disbursement or advance as may be attributable to its or their negligence or bad faith. Section 4.5 Outside Businesses Any Covered Person, the Delaware Trustee and the Property Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the holders of Securities shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived therefrom and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. No Covered Person, the Property Trustee or the Delaware Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the -61- Trust, could be taken by the Trust, and any Covered Person, the Property Trustee and the Delaware Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS Section 5.1 Amendments At any time before the issue of any Securities, this Declaration may be amended by, and only by, a written instrument executed by all of the Regular Trustees and the Sponsor; provided no amendment may alter or affect the Delaware Trustee's or the Property Trustee's rights or duties hereunder without such trustee's prior written consent. Section 5.2 Termination of Trust (a) The Trust shall terminate and be of no further force or effect: (i) upon the bankruptcy of the Sponsor; (ii) upon the filing of a certificate of dissolution or its equivalent with respect to the Sponsor or the revocation of the Sponsor's charter or of the Trust's certificate of trust; (iii) upon the entry of a decree of judicial dissolution of the Sponsor or the Trust; and (iv) before the issue of any Securities, with the consent of all of the Regular Trustees and the Sponsor. (b) as soon as is practicable after the occurrence of an event referred to in Section 5.2(a), the Regular Trustees shall file a certificate of cancellation with the Secretary of State of the State of Delaware. Section 5.3 Governing Law This Declaration and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws. Section 5.4 Headings Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof. Section 5.5 Partial Enforceability -62- If any provision of this Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. Section 5.6 Counterparts This Declaration may contain more than one counterpart of the signature page and this Declaration may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. -63- IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. BERGEN BRUNSWIG CHASE MANHATTAN BANK, CORPORATION, as Sponsor as Delaware Trustee By: /s/_____________________ By: /s/ ____________________ Name: Donald R. Roden Name: Title: President and Chief Executive Title: Authorized Signatory Officer /s/_______________________________ Donald R. Roden, as Regular Trustee /s/_______________________________ Neil F. Dimick, as Regular Trustee /s/_______________________________ Milan A. Sawdei, as regular Trustee CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee By: /s/ ___________________________ Name: ___________________________ Title: Assistant Vice President -64- EX-4 6 DECLARATION OF TRUST OF BERGEN CAPITAL TRUST II Exhibit 4.2 DECLARATION OF TRUST OF BERGEN CAPITAL TRUST II This DECLARATION OF TRUST ("Declaration"), dated and effective as of March __, 1999, by the undersigned trustees (together with all other Persons (as defined herein) from time to time duly appointed and serving as trustees in accordance with the provisions of this Declaration, the "Trustees") and the Parent (as defined herein) as trust sponsor (the "Sponsor"), WITNESSETH THAT WHEREAS, the Trustees and the Sponsor desire to establish a trust (the "Trust") pursuant to the Delaware Business Trust Act (as defined herein) for the sole purpose of issuing and selling certain securities representing undivided beneficial interests in the assets of the Trust and investing the proceeds thereof in certain Subordinated Debt Securities (as defined herein) of the Parent; NOW, THEREFORE, it being the intention of the parties hereto that the Trust constitute a business trust under the Delaware Business Trust Act and that this Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the benefit of the holders, from time to time, of the securities representing undivided beneficial interests issued hereunder, subject to the provisions of this Declaration. ARTICLE I DEFINITIONS Section 1.1 Definitions; Interpretation (a) Capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1. (b) A term defined anywhere in this Declaration has the same meaning throughout. (c) All references to "the Declaration" or "this Declaration" are to this Declaration of Trust as modified, supplemented or amended from time to time. (d) All references in this Declaration to Articles and Sections and to Exhibits are to Articles and Sections of and Exhibits to this Declaration unless otherwise specified. (e) A reference to the singular includes the plural and vice versa. (f) The following terms shall have the following meanings: "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act of 1933, as amended. -65- "Business Day" means any day other than a day on which banking institutions in New York, New York are authorized or required by law to close. "Certificate of Trust" means a certificate of trust substantially in the form of Exhibit A annexed hereto to be filed pursuant to the Delaware Business Trust Act. "Common Security" means a security representing an undivided beneficial interest in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. "Covered Person" means any employee or agent of the Trust or its Affiliates. "Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time. "Delaware Secretary of State" means the Office of the Secretary of State of the State of Delaware. "Delaware Trustee" has the meaning set forth in Section 3.1. "Indemnified Person" means any Trustee (in its individual and trust capacities), any Affiliate of any Trustee or any officers, directors, shareholders, members, partners, employees, representatives or agents of any Trustee or any employee or agent of the Trust or its Affiliates. "Parent" means Bergen Brunswig Corporation, a New Jersey corporation. "Person" means any individual, joint venture, partnership, corporation, association, joint stock company, limited liability company, trust, unincorporated organization or other entity. "Preferred Security" means a security representing an undivided beneficial interest in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. "Property Trustee" has the meaning set forth in Section 3.1. "Regular Trustee" means any Trustee other than the Delaware Trustee or the Property Trustee. "Securities" means the Common Securities and the Preferred Securities. "Sponsor" means the Parent in its capacity as Sponsor of the Trust. "Subordinated Debt Securities" means the series of subordinated debt securities to be issued by the Parent. "Trustee" or "Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and servicing as Trustees in accordance with -66- the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. ARTICLE II ORGANIZATION Section 2.1 Name The Trust created by this Declaration is named "Bergen Capital Trust II." The Trust's activities may be conducted under the name of the Trust or any other name deemed advisable by the Regular Trustees. Section 2.2 Office The address of the principal office of the Trust is 4000 Metropolitan Drive, Orange California 92868. At any time, the Regular Trustees may designate another principal office. Section 2.3 Purpose The exclusive purposes and functions of the Trust are (a) to issue and sell Securities and use the proceeds from such sale to acquire the Subordinated Debt Securities, and (b) except as otherwise limited herein, to engage in only those other activities necessary or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments or, other than as permitted herein, pledge any of its assets. Section 2.4 Authority Subject to the limitations provided in this Declaration, the Regular Trustees shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust. In dealing with the Regular Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of the Regular Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Regular Trustees as set forth in this Declaration. Section 2.5 Title To Property of the Trust Legal title to all assets of the Trust shall be vested in the Trust. Section 2.6 Powers of the Trustees The Regular Trustees shall have the exclusive power and authority to cause the Trust to engage in the following activities: (a) to issue and sell Preferred Securities and Common Securities in accordance with this Declaration and, in connection with such issue and sale, to -67- cause the Trust to file with the Securities and Exchange Commission a registration statement on Form S-3 in relation to the Preferred Securities, including any pre-effective and post-effective amendments thereto (including any Registration Statement filed under Rule 462(b) of the Securities Act); provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities; (b) employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and provide for reasonable compensation for such services; (c) to incur expenses which are necessary or incidental to carry out any of the purposes of this Declaration; (d) execute and enter into an underwriting agreement in connection with the issuance of Preferred Securities; and (e) execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing. Section 2.7 Filing of Certificate of Trust On or after the date of execution of this Declaration, the Trustees shall cause the filing of a Certificate of Trust for the Trust with the Delaware Secretary of State. ARTICLE III TRUSTEES Section 3.1 Trustees The number of Trustees shall initially be five (5), and thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument signed by the Sponsor. The Sponsor is entitled to appoint or remove without cause any Trustee at any time; provided, however, that the number of Trustees shall in no event be less than five (5); and provided, further, that one Trustee, in the case of a natural person, shall be a person who is a resident of the State of Delaware or which, if not a natural person, has its principal place of business in the State of Delaware (the "Delaware Trustee"). Except as expressly set forth in this Declaration, any power of the Regular Trustees may be exercised by, or with the consent of, a majority of the Regular Trustees. The initial Regular Trustees shall be Donald R. Roden, Neil F. Dimick and Milan A. Sawdei, each having the same address as the Trust. The initial Delaware Trustee shall be Chase Manhattan Bank Delaware, having an address at 1201 Market Street, Wilmington, Delaware 19801. The initial property trustee (the "Property Trustee") shall be Chase Manhattan Bank and Trust Company, National Association, having an address at 101 California Street, Suite 2725, San Francisco, California 94111. -68- Each of the Delaware Trustee and the Property Trustee may resign as Trustee of the Trust by giving not less than thirty (30) days prior written notice of resignation to any Regular Trustee; provided, however, that no such resignation of the Delaware Trustee shall be effective until a successor Delaware Trustee has been appointed and has accepted such appointment by instrument executed by such successor Delaware Trustee and delivered to the Trust, the Sponsor and the resigning Delaware Trustee and that no such resignation of the Property Trustee shall be effective until a successor Property Trustee has been appointed and has accepted such appointment by instrument executed by such successor Property Trustee and delivered to the Trust, the Sponsor and the resigning Property Trustee. Section 3.2 Delaware Trustee and Property Trustee Notwithstanding any other provision of this Declaration, neither the Delaware Trustee nor the Property Trustee shall be entitled to exercise any of the powers or shall have any of the responsibilities described in this Declaration of the Regular Trustees. Further, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Delaware Business Trust Act. Section 3.3 Execution of Documents (a) Any two Regular Trustees are authorized to execute on behalf of the Trust the Registration Statement referred to in Section 2.6(a) and any amendments thereto and any other documents that the Regular Trustees have the power and authority to execute pursuant to Section 2.6. (b) A Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of signing the Registration Statement referred to in Section 2.6(a) and any amendment thereto or making any other governmental filing. ARTICLE IV LIMITATION OF LIABILITY OF SPONSOR, TRUSTEES OR OTHERS Section 4.1 Liability (a) Except as expressly set forth in this Declaration, the Sponsor shall not be: (i) personally liable for the return of any portion of the capital contributions (or any return thereon) of the holders of the Securities which shall be made solely from assets of the Trust; or (ii) required to pay to the Trust or to any holder of Securities any deficit upon dissolution or otherwise. (b) The Sponsor shall be liable for all fees and expenses related to the Trust and each offering of the Securities and shall be liable for all -69- ongoing costs and expenses of the Trust, except the Trust's obligations under the Securities (such exception to include, without limitation, the returns described in Section 4.1(a)(i) and the deficit payment described in Section 4.1(a)(ii)). Section 4.2 Exculpation (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's gross negligence or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which distributions to holders of Securities might properly be paid. Section 4.3 Fiduciary Duty (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the Trust or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person. (b) Unless otherwise expressly provided herein, whenever (i) a conflict of interest exists or arises between Covered Persons or (ii) this Declaration or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any holder of Securities, the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise. (c) Whenever in this Declaration an Indemnified Person is permitted or required to make a decision in its "discretion" or under a grant of similar authority, the Indemnified Person (a) shall be entitled to consider such -70- interests and factors as it desires, including its own interests, (b) shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person and (c) shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law. Whenever in this Declaration an Indemnified Person is permitted or required to make a decision in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law. Section 4.4 Indemnification. (a) To the fullest extent permitted by applicable law, the Sponsor shall indemnify and hold harmless each Indemnified Person from and against any loss, liability, action, suit, cost, expense, damage or claim incurred by such Indemnified Person by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Declaration, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of gross negligence or willful misconduct with respect to such acts or omissions. (b) To the fullest extent permitted by applicable law, expenses (including, without limitation, legal fees) incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Sponsor prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified as authorized in Section 4.4(a). (c) The Sponsor agrees to pay the Property Trustee and the Delaware Trustee from time to time such compensation for all services rendered by the Property Trustee and the Delaware Trustee hereunder as may be mutually agreed upon in writing by the Sponsor and the Property Trustee and the Delaware Trustee, as the case may be, and, except as otherwise expressly provided herein, to reimburse the Property Trustee and the Delaware Trustee upon its or their request for all reasonable expenses, disbursements and advances incurred or made by the Property Trustee or the Delaware Trustee, as the case may be, in accordance with the provisions of this Declaration, except any such expense, disbursement or advance as may be attributable to its or their negligence or bad faith. Section 4.5 Outside Businesses Any Covered Person, the Delaware Trustee and the Property Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the holders of Securities shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived therefrom and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. No Covered Person, the Property Trustee or the Delaware Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Property Trustee and the Delaware Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. -71- ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS Section 5.1 Amendments At any time before the issue of any Securities, this Declaration may be amended by, and only by, a written instrument executed by all of the Regular Trustees and the Sponsor; provided no amendment may alter or affect the Delaware Trustee's or the Property Trustee's rights or duties hereunder without such trustee's prior written consent. Section 5.2 Termination of Trust (a) The Trust shall terminate and be of no further force or effect: (i) upon the bankruptcy of the Sponsor; (ii) upon the filing of a certificate of dissolution or its equivalent with respect to the Sponsor or the revocation of the Sponsor's charter or of the Trust's certificate of trust; (iii) upon the entry of a decree of judicial dissolution of the Sponsor or the Trust; and (iv) before the issue of any Securities, with the consent of all of the Regular Trustees and the Sponsor. (b) as soon as is practicable after the occurrence of an event referred to in Section 5.2(a), the Regular Trustees shall file a certificate of cancellation with the Secretary of State of the State of Delaware. Section 5.3 Governing Law This Declaration and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws. Section 5.4 Headings Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof. Section 5.5 Partial Enforceability If any provision of this Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. -72- Section 5.6 Counterparts This Declaration may contain more than one counterpart of the signature page and this Declaration may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. -73- IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. BERGEN BRUNSWIG CHASE MANHATTAN BANK, CORPORATION, as Sponsor as Delaware Trustee By: /s/_____________________ By: /s/ ____________________ Name: Donald R. Roden Name: Title: President and Chief Executive Title: Authorized Signatory Officer /s/_______________________________ Donald R. Roden, as Regular Trustee /s/_______________________________ Neil F. Dimick, as Regular Trustee /s/_______________________________ Milan A. Sawdei, as regular Trustee CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee By: /s/ ___________________________ Name: ___________________________ Title: Assistant Vice President -74- EX-4.3 7 DECLARATION OF TRUST OF BERGEN CAPITAL TRUST III Exhibit 4.3 DECLARATION OF TRUST OF BERGEN CAPITAL TRUST III This DECLARATION OF TRUST ("Declaration"), dated and effective as of March __, 1999, by the undersigned trustees (together with all other Persons (as defined herein) from time to time duly appointed and serving as trustees in accordance with the provisions of this Declaration, the "Trustees") and the Parent (as defined herein) as trust sponsor (the "Sponsor"), WITNESSETH THAT WHEREAS, the Trustees and the Sponsor desire to establish a trust (the "Trust") pursuant to the Delaware Business Trust Act (as defined herein) for the sole purpose of issuing and selling certain securities representing undivided beneficial interests in the assets of the Trust and investing the proceeds thereof in certain Subordinated Debt Securities (as defined herein) of the Parent; NOW, THEREFORE, it being the intention of the parties hereto that the Trust constitute a business trust under the Delaware Business Trust Act and that this Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the benefit of the holders, from time to time, of the securities representing undivided beneficial interests issued hereunder, subject to the provisions of this Declaration. ARTICLE I DEFINITIONS Section 1.1 Definitions; Interpretation (a) Capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1. (b) A term defined anywhere in this Declaration has the same meaning throughout. (c) All references to "the Declaration" or "this Declaration" are to this Declaration of Trust as modified, supplemented or amended from time to time. (d) All references in this Declaration to Articles and Sections and to Exhibits are to Articles and Sections of and Exhibits to this Declaration unless otherwise specified. (e) A reference to the singular includes the plural and vice versa. (f) The following terms shall have the following meanings: "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act of 1933, as amended. -75- "Business Day" means any day other than a day on which banking institutions in New York, New York are authorized or required by law to close. "Certificate of Trust" means a certificate of trust substantially in the form of Exhibit A annexed hereto to be filed pursuant to the Delaware Business Trust Act. "Common Security" means a security representing an undivided beneficial interest in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. "Covered Person" means any employee or agent of the Trust or its Affiliates. "Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time. "Delaware Secretary of State" means the office of the Secretary of State of the State of Delaware. "Delaware Trustee" has the meaning set forth in Section 3.1. "Indemnified Person" means any Trustee (in its individual and trust companies), any Affiliate of any Trustee or any officers, directors, shareholders, members, partners, employees, representatives or agents of any Trustee or any employee or agent of the Trust or its Affiliates. "Parent" means Bergen Brunswig Corporation, a New Jersey corporation. "Person" means any individual, joint venture, partnership, corporation, association, joint stock company, limited liability company, trust, unincorporated organization or other entity. "Preferred Security" means a security representing an undivided beneficial interest in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. "Property Trustee" has the meaning set forth in Section 3.1. "Regular Trustee" means any Trustee other than the Delaware Trustee or the Property Trustee. "Securities" means the Common Securities and the Preferred Securities. "Sponsor" means the Parent in its capacity as Sponsor of the Trust. "Subordinated Debt Securities" means the series of subordinated debt securities to be issued by the Parent. "Trustee" or "Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to -76- time be duly appointed, qualified and servicing as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. ARTICLE II ORGANIZATION Section 2.1 Name The Trust created by this Declaration is named "Bergen Capital Trust III." The Trust's activities may be conducted under the name of the Trust or any other name deemed advisable by the Regular Trustees. Section 2.2 Office The address of the principal office of the Trust is 4000 Metropolitan Drive, Orange California 92868. At any time, the Regular Trustees may designate another principal office. Section 2.3 Purpose The exclusive purposes and functions of the Trust are (a) to issue and sell Securities and use the proceeds from such sale to acquire the Subordinated Debt Securities, and (b) except as otherwise limited herein, to engage in only those other activities necessary or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments or, other than as permitted herein, pledge any of its assets. Section 2.4 Authority Subject to the limitations provided in this Declaration, the Regular Trustees shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust. In dealing with the Regular Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of the Regular Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Regular Trustees as set forth in this Declaration. Section 2.5 Title To Property of the Trust Legal title to all assets of the Trust shall be vested in the Trust. Section 2.6 Powers of the Trustees The Regular Trustees shall have the exclusive power and authority to cause the Trust to engage in the following activities: (a) to issue and sell Preferred Securities and Common Securities in accordance with this Declaration and, in connection with such issue and sale, to -77- cause the Trust to file with the Securities and Exchange Commission a registration statement on Form S-3 in relation to the Preferred Securities, including any pre-effective and post-effective amendments thereto (including any Registration Statement filed under Rule 462(b) of the Securities Act); provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities; (b) employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and provide for reasonable compensation for such services; (c) to incur expenses which are necessary or incidental to carry out any of the purposes of this Declaration; (d) execute and enter into an underwriting agreement in connection with the issuance of Preferred Securities; and (e) execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing. Section 2.7 Filing of Certificate of Trust On or after the date of execution of this Declaration, the Trustees shall cause the filing of a Certificate of Trust for the Trust with the Delaware Secretary of State. ARTICLE III TRUSTEES Section 3.1 Trustees The number of Trustees shall initially be five (5), and thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument signed by the Sponsor. The Sponsor is entitled to appoint or remove without cause any Trustee at any time; provided, however, that the number of Trustees shall in no event be less than five (5); and provided, further, that one Trustee, in the case of a natural person, shall be a person who is a resident of the State of Delaware or which, if not a natural person, has its principal place of business in the State of Delaware (the "Delaware Trustee"). Except as expressly set forth in this Declaration, any power of the Regular Trustees may be exercised by, or with the consent of, a majority of the Regular Trustees. The initial Regular Trustees shall be Donald R. Roden, Neil F. Dimick and Milan A. Sawdei, each having the same address as the Trust. The initial Delaware Trustee shall be Chase Manhattan Bank Delaware, having an address at 1201 Market Street, Wilmington, Delaware 19801. The initial property trustee (the "Property Trustee") shall be Chase Manhattan Bank and Trust Company, National Association, having an address at 101 California Street, Suite 2725, San Francisco, California 94111. -78- Each of the Delaware Trustee and the Property Trustee may resign as Trustee of the Trust by giving not less than thirty (30) days prior written notice of resignation to any Regular Trustee; provided, however, that no such resignation of the Delaware Trustee shall be effective until a successor Delaware Trustee has been appointed and has accepted such appointment by instrument executed by such successor Delaware Trustee and delivered to the Trust, the Sponsor and the resigning Delaware Trustee and that no such resignation of the Property Trustee shall be effective until a successor Property Trustee has been appointed and has accepted such appointment by instrument executed by such successor Property Trustee and delivered to the Trust, the Sponsor and the resigning Property Trustee. Section 3.2 Delaware Trustee and Property Trustee Notwithstanding any other provision of this Declaration, neither the Delaware Trustee nor the Property Trustee shall be entitled to exercise any of the powers or shall have any of the responsibilities described in this Declaration of the Regular Trustees. Further, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Delaware Business Trust Act. Section 3.3 Execution of Documents (a) Any two Regular Trustees are authorized to execute on behalf of the Trust the Registration Statement referred to in Section 2.6(a) and any amendments thereto and any other documents that the Regular Trustees have the power and authority to execute pursuant to Section 2.6. (b) A Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of signing the Registration Statement referred to in Section 2.6(a) and any amendment thereto or making any other governmental filing. ARTICLE IV LIMITATION OF LIABILITY OF SPONSOR, TRUSTEES OR OTHERS Section 4.1 Liability (a) Except as expressly set forth in this Declaration, the Sponsor shall not be: (i) personally liable for the return of any portion of the capital contributions (or any return thereon) of the holders of the Securities which shall be made solely from assets of the Trust; or (ii) required to pay to the Trust or to any holder of Securities any deficit upon dissolution or otherwise. (b) The Sponsor shall be liable for all fees and expenses related to the Trust and each offering of the Securities and shall be liable for all -79- ongoing costs and expenses of the Trust, except the Trust's obligations under the Securities (such exception to include, without limitation, the returns described in Section 4.1(a)(i) and the deficit payment described in Section 4.1(a)(ii)). Section 4.2 Exculpation (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's gross negligence or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which distributions to holders of Securities might properly be paid. Section 4.3 Fiduciary Duty (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the Trust or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person. (b) Unless otherwise expressly provided herein, whenever (i) a conflict of interest exists or arises between Covered Persons or (ii) this Declaration or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any holder of Securities, the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise. (c) Whenever in this Declaration an Indemnified Person is permitted or required to make a decision in its "discretion" or under a grant of similar authority, the Indemnified Person (a) shall be entitled to consider such interests and factors as it desires, including its own interests, (b) shall have no duty or obligation to give any consideration to any interest of or factors -80- affecting the Trust or any other Person and (c) shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law. Whenever in this Declaration an Indemnified Person is permitted or required to make a decision in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law. Section 4.4 Indemnification and Compensation. (a) To the fullest extent permitted by applicable law, the Sponsor shall indemnify and hold harmless each Indemnified Person from and against any loss, liability, action, suit, cost, expense, damage or claim incurred by such Indemnified Person by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Declaration, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of gross negligence or willful misconduct with respect to such acts or omissions. (b) To the fullest extent permitted by applicable law, expenses (including, without limitation, legal fees) incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Sponsor prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified as authorized in Section 4.4(a). (c) The Sponsor agrees to pay the Property Trustee and the Delaware Trustee from time to time such compensation for all services rendered by the Property Trustee and the Delaware Trustee hereunder as may be mutually agreed upon in writing by the Sponsor and the Property Trustee and the Delaware Trustee, as the case may be, and, except as otherwise expressly provided herein, to reimburse the Property Trustee and the Delaware Trustee upon its or their request for all reasonable expenses, disbursements and advances incurred or made by the Property Trustee or the Delaware Trustee, as the case may be, in accordance with the provisions of this Declaration, except any such expense, disbursement or advance as may be attributable to its or their negligence or bad faith. Section 4.5 Outside Businesses Any Covered Person, the Delaware Trustee and the Property Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the holders of Securities shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived therefrom and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. No Covered Person, the Property Trustee or the Delaware Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Property Trustee and the Delaware Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. -81- ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS Section 5.1 Amendments At any time before the issue of any Securities, this Declaration may be amended by, and only by, a written instrument executed by all of the Regular Trustees and the Sponsor; provided no amendment may alter or affect the Delaware Trustee's or the Property Trustee's rights or duties hereunder without such trustee's prior written consent. Section 5.2 Termination of Trust (a) The Trust shall terminate and be of no further force or effect: (i) upon the bankruptcy of the Sponsor; (ii) upon the filing of a certificate of dissolution or its equivalent with respect to the Sponsor or the revocation of the Sponsor's charter or of the Trust's certificate of trust; (iii) upon the entry of a decree of judicial dissolution of the Sponsor or the Trust; and (iv) before the issue of any Securities, with the consent of all of the Regular Trustees and the Sponsor. (b) as soon as is practicable after the occurrence of an event referred to in Section 5.2(a), the Regular Trustees shall file a certificate of cancellation with the Secretary of State of the State of Delaware. Section 5.3 Governing Law This Declaration and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws. Section 5.4 Headings Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof. Section 5.5 Partial Enforceability If any provision of this Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. -82- Section 5.6 Counterparts This Declaration may contain more than one counterpart of the signature page and this Declaration may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. -83- IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. BERGEN BRUNSWIG CHASE MANHATTAN BANK, CORPORATION, as Sponsor as Delaware Trustee By: /s/_____________________ By: /s/ ____________________ Name: Donald R. Roden Name: Title: President and Chief Executive Title: Authorized Signatory Officer /s/______________________________ Donald R. Roden, as Regular Trustee /s/______________________________ Neil F. Dimick, as Regular Trustee /s/______________________________ Milan A. Sawdei, as regular Trustee CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee By: /s/ ___________________________ Name: ___________________________ Title: Assistant Vice President -84- EX-4.4 8 AMENDED AND RESTATED DECLARATION OF TRUST EXHIBIT 4.4 AMENDED AND RESTATED DECLARATION OF TRUST BERGEN CAPITAL TRUST [ ] Dated as of [ ], [ ] -85- Table of Contents Page ARTICLE I INTERPRETATION AND DEFINITIONS Section 1.1 Definitions............................................. ARTICLE II TRUST INDENTURE ACT Section 2.1 Trust Indenture Act; Application........................ Section 2.2 Lists of Holders of Securities.......................... Section 2.3 Reports by the Property Trustee......................... Section 2.4 Periodic Reports to the Property Trustee................ Section 2.5 Evidence of Compliance with Conditions Precedent........ Section 2.6 Events of Default; Waiver............................... Section 2.7 Event of Default; Notice................................ ARTICLE III ORGANIZATION Section 3.1 Name.................................................... Section 3.2 Office.................................................. Section 3.3 Purpose................................................. Section 3.4 Authority............................................... Section 3.5 Title to Property of the Trust.......................... Section 3.6 Powers and Duties of the Regular Trustees............... Section 3.7 Prohibition of Actions by the Trust and the Trustees.... Section 3.8 Powers and Duties of the Property Trustee............... Section 3.9 Certain Duties and Responsibilities of the Property Trustee.............................................. Section 3.10 Certain Rights of the Property Trustee.................. Section 3.11 Delaware Trustee........................................ Section 3.12 Execution of Documents.................................. Section 3.13 Not Responsible for Recitals or Issuance of Securities.. Section 3.14 Duration of Trust....................................... Section 3.15 Mergers................................................. ARTICLE IV SPONSOR Section 4.1 Sponsor's Purchase of Common Securities................. Section 4.2 Responsibilities of the Sponsor......................... Section 4.3 Right to Proceed........................................ -86- ARTICLE V TRUSTEES Section 5.1 Number of Trustees...................................... Section 5.2 Delaware Trustee........................................ Section 5.3 Property Trustee; Eligibility........................... Section 5.4 Qualifications of Regular Trustees and Delaware Trustee Generally............................................... Section 5.5 Regular Trustees........................................ Section 5.6 Appointment, Removal and Resignation of Trustees........ Section 5.7 Vacancies Among Trustees................................ Section 5.8 Effect of Vacancies..................................... Section 5.9 Meetings................................................ Section 5.10 Delegation of Power..................................... Section 5.11 Merger, Conversion, Consolidation or Succession to Business................................................ ARTICLE VI DISTRIBUTIONS Section 6.1 Distributions........................................... ARTICLE VII ISSUANCE OF SECURITIES Section 7.1 General Provisions Regarding Securities................. ARTICLE VIII DISSOLUTION AND TERMINATION OF TRUST Section 8.1 Dissolution and Termination of Trust.................... ARTICLE IX TRANSFER OF INTERESTS Section 9.1 Transfer of Securities.................................. Section 9.2 Transfer of Certificates................................ Section 9.3 Deemed Security Holders................................. Section 9.4 Book Entry Interests.................................... Section 9.5 Notices to Clearing Agency.............................. Section 9.6 Appointment of Successor Clearing Agency................ Section 9.7 Definitive Preferred Security Certificates Under Certain Circumstances........................................... Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates....... -87- ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS Section 10.1 Liability............................................... Section 10.2 Exculpation............................................. Section 10.3 Fiduciary Duty.......................................... Section 10.4 Indemnification and Compensation........................ Section 10.5 Outside Businesses...................................... ARTICLE XI ACCOUNTING Section 11.1 Fiscal Year............................................. Section 11.2 Certain Accounting Matters.............................. Section 11.3 Banking................................................. Section 11.4 Withholding............................................. ARTICLE XII AMENDMENTS AND MEETINGS Section 12.1 Amendments.............................................. Section 12.2 Meetings of the Holders of Securities; Action by Written Consent................................................. ARTICLE XIII REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE Section 13.1 Representations and Warranties of the Property Trustee.. Section 13.2 Representations and Warranties of the Delaware Trustee.. ARTICLE XIV MISCELLANEOUS Section 14.1 Notices................................................. Section 14.2 Governing Law........................................... Section 14.3 Intention of the Parties................................ Section 14.4 Headings................................................ Section 14.5 Successors and Assigns.................................. Section 14.6 Partial Enforceability.................................. Section 14.7 Counterparts............................................ -88- AMENDED AND RESTATED DECLARATION OF TRUST OF BERGEN CAPITAL TRUST [ ] [ ], [ ] THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration"), dated and effective as of [ ], [ ], by the undersigned trustees (together with all other Persons from time to time duly appointed and serving as trustees in accordance with the provisions of this Declaration, the "Trustees"), Bergen Brunswig Corporation, a New Jersey corporation, as trust sponsor (the "Sponsor"), and by the holders, from time to time, of the securities representing undivided beneficial interests in the assets of the Bergen Capital Trust [ ] (the "Trust") to be issued pursuant to this Declaration; WITTNESSETH THAT WHEREAS, the Trustees and the Sponsor established the Trust under the Business Trust Act (as defined herein) pursuant to a Declaration of Trust, dated as of [ ], [ ] (the "Original Declaration") and a Certificate of Trust filed with the Secretary of State of Delaware on [ ], [ ], for the sole purpose of issuing and selling certain securities representing undivided beneficial interests in the assets of the Trust and investing the proceeds thereof in certain Subordinated Notes (as defined herein) of the Subordinated Notes Issuer (as defined herein); WHEREAS, as of the date hereof, no interests in the Trust have been issued; and WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend and restate each and every term and provision of the Original Declaration, NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a business trust under the Business Trust Act and that this Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the benefit of the holders, from time to time, of the securities representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to the provisions of this Declaration. ARTICLE I INTERPRETATION AND DEFINITIONS Section 1.1 Definitions. Unless the context otherwise requires: (a) Capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1; -89- (b) a term defined anywhere in this Declaration has the same meaning throughout; (c) all references to "the Declaration" or "this Declaration" are to this Amended and Restated Declaration of Trust as modified, supplemented or amended from time to time; (d) all references in this Declaration to Articles and Sections and Exhibits are to Articles and Sections of and Exhibits to this Declaration unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Declaration unless otherwise defined in this Declaration; and (f) a reference to the singular includes the plural and vice versa. The following terms shall have the following meanings: "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act as in effect on the date of this Declaration. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Book Entry Interest" means a beneficial interest in a Global Certificate, ownership and transfers of which shall be maintained and made through book entries by a Clearing Agency as described in Section 9.4. "Business Day" means any day other than a day on which banking institutions in New York, New York are authorized or required by law to close. "Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Sections 3801 et seq., as it may be amended from time to time, or any successor legislation. "Certificate" means a Common Security Certificate or a Preferred Security Certificate. "Clearing Agency" means an organization registered as a "Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary for the Preferred Securities and in whose name, or in the name of a nominee of that organization, shall be registered a Global Certificate and which shall undertake to effect book entry transfers and pledges of the Preferred Securities. "Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Clearing Agency effects book entry transfers and pledges of securities deposited with the Clearing Agency. "Closing Date" means [ ], [ ]. "Code" means the Internal Revenue Code of 1986, as amended, or any successor legislation. -90- "Commission" means the Securities and Exchange Commission. "Common Security" has the meaning specified in Section 7.1. "Common Securities Guarantee" means the guarantee agreement to be dated as of [ ], [ ] of the Sponsor in respect of the Common Securities. "Common Security Certificate" means a definitive certificate in fully registered form representing a Common Security substantially in the form of Annex II to Exhibit A attached hereto. "Covered Person" means: (a) any officer, director, shareholder, partner, member, representative, employee or agent of: (i) the Trust; or (ii) the Trust's Affiliates; and (b) any Holder of Securities. "Definitive Preferred Security Certificates" has the meaning set forth in Section 9.4. "Delaware Secretary of State" means the Office of the Secretary of State of the State of Delaware. "Delaware Trustee" has the meaning set forth in Section 5.1. "Direct Action" has the meaning set forth in Section 3.8(e). "Distribution" means a distribution payable to Holders of Securities in accordance with Section 6.1. "DTC" means The Depository Trust Company, the initial Clearing Agency. "Event of Default" in respect of the Securities means an Event of Default (as defined in the Indenture) has occurred and is continuing in respect of the Subordinated Notes. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time or any successor legislation. "Global Certificate" has the meaning set forth in Section 9.4. "Holder" means a Person in whose name a Certificate representing a Security is registered, such Person being a beneficial owner within the meaning of the Business Trust Act. "Indemnified Person" means (i) any Trustee; (ii) any Affiliate of any Trustee; (iii) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Trustee; or -91- (iv) any employee or agent of the Trust or its Affiliates. "Indenture" means the Indenture dated as o March 1, 1996 among the Subordinated Notes Issuer and Chase Manhattan Bank and Trust Company, National Association, as trustee, as supplemented by [an Officers' Certificate (as defined in the Indenture) dated as of [ ], [ ] pursuant to Section 301 of the Indenture] [a supplemental indenture, dated as of [ ], [ ] pursuant to Section 9.01 of the Indenture. "Investment Company" means an investment company as defined in the Investment Company Act. "Investment Company Act" means the Investment Company Act of 1940, as amended from time to time or any successor legislation. "Legal Action" has the meaning set forth in Section 3.6(h). "Majority in liquidation amount of the Securities" means, except as provided in the terms of the Preferred Securities and by the Trust Indenture Act, Holder(s) of Securities voting together as a single class or, as the context may require, Holder(s) of Preferred Securities or Common Securities voting separately as a class, who vote Securities of a relevant class and the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of the Securities voted by such Holders represents more than 50% of the above stated aggregate liquidation amount of all Securities of such class. "Officers' Certificate" means, with respect to any Person, a certificate signed by two Authorized Officers of such Person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Declaration shall include: (a) a statement that each officer signing the Certificate has read the covenant or condition and the definition relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Certificate; (c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with. "Paying Agent" has the meaning specified in Section 3.8(h). -92- "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Preferred Securities Guarantee" means the guarantee agreement to be dated as of [ ], [ ] of the Sponsor in respect of the Preferred Securities. "Preferred Security" has the meaning specified in Section 7.1. "Preferred Security Beneficial Owner" or "Beneficial Owner of Preferred Securities" means, with respect to a Book Entry Interest, a Person who is the beneficial owner of such Book Entry Interest, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of such Clearing Agency). "Preferred Security Certificate" means a certificate representing a Preferred Security substantially in the form of Annex I to Exhibit A attached hereto. "Property Trustee" means the Trustee meeting the eligibility requirements set forth in Section 5.3. "Property Trustee Account" has the meaning set forth in Section 3.8(c). "Purchase Agreement" means the purchase agreement or underwriting agreement for the offering and sale of Preferred Securities, substantially in the form of Exhibit B attached hereto. "Quorum" means a majority of the Regular Trustees or if there are only two Regular Trustees, both of them. "Regular Trustee" means any Trustee other than the Property Trustee or the Delaware Trustee. "Related Party" means, with respect to the Sponsor, any direct or indirect wholly owned subsidiary of the Sponsor or any other Person that owns, directly or indirectly, 100% of the outstanding voting securities of the Sponsor. "Responsible Officer" means, with respect to the Property Trustee, any officer of the Property Trustee with direct responsibility for the administration of this declaration, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. "Securities" means the Common Securities and the Preferred Securities. "Securities Act" means the Securities Act of 1933, as amended, or any successor legislation. "Special Event" has the meaning set forth in the terms of the Securities. -93- "Sponsor" means Bergen Brunswig Corporation, a New Jersey corporation, or any permitted successor thereof under the Indenture, in its capacity as sponsor of the Trust. "Subordinated Notes" means the series of Subordinated Notes to be issued by the Subordinated Notes Issuer under the Indenture to be held by the Property Trustee pursuant to Section 3.6(d), a specimen certificate for such series of Subordinated Notes being attached hereto as Exhibit C. "Subordinated Notes Issuer" means Bergen Brunswig Corporation, a New Jersey corporation. "Subordinated Notes Trustee" means Chase Manhattan Bank and Trust Company, National Association, as trustee under the Indenture until a successor is appointed thereunder and thereafter means such successor trustee. "Successor Property Trustee" means a successor Trustee possessing the qualifications to act as Property Trustee under Section 5.3(a). "25% in liquidation amount of the Securities" means, except as provided in the terms of the Preferred Securities and by the Trust Indenture Act, Holder(s) of Securities voting together as a single class or, as the context may require, Holder(s) of Preferred Securities or Common Securities, voting separately as a class, who vote Securities of a relevant class and the liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of the Securities voted by such Holders represents 25% of the above stated aggregate liquidation amount of all Securities of such class. "Treasury Regulations" means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation. "Trustee" or "Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue to serve as a trustee in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. -94- ARTICLE II TRUST INDENTURE ACT Section 2.1 Trust Indenture Act; Application. (a) This Declaration is subject to the provisions of the Trust Indenture Act that are required to be part of this Declaration and shall, to the extent applicable, be governed by such provisions; (b) the Property Trustee shall be the only Trustee which is a trustee for the purposes of the Trust Indenture Act; (c) if and to the extent that any provision of this Declaration limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control; and (d) the application of the Trust Indenture Act to this Declaration shall not affect the nature of the Securities as equity securities representing undivided beneficial interests in the assets of the Trust. Section 2.2 Lists of Holders of Securities. (a) Each of the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide the Property Trustee (i) semiannually, not later than June 30 and December 31 in each year, a list, in such form as the Property Trustee may reasonably require, containing all the information in the possession or control of the Sponsor, or any of its Paying Agents other than the Property Trustee, as to the names and addresses of the Holders of Securities ("List of Holders") as of the preceding June 15 or December 15, as the case may be, and (ii) at such other times as the Property Trustee may request in writing, within 30 days after the receipt by the Trust of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished. The Property Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in each List of Holders given to it or which it receives in its capacity as Paying Agent (if acting in such capacity) provided that the Property Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Property Trustee shall comply with its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act. Section 2.3 Reports by the Property Trustee. Within 60 days after May 15 of each year, commencing May 15 [ ], the Property Trustee shall provide to the Holders of the Securities such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Property Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. -95- Section 2.4 Periodic Reports to the Property Trustee. Each of the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to the Property Trustee such documents, reports and information as required by Section 314 of the Trust Indenture Act (if any) and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. Section 2.5 Evidence of Compliance with Conditions Precedent. Each of the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Declaration which relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. Section 2.6 Events of Default; Waiver. (a) The Holders of a Majority in liquidation amount of Preferred Securities may, by vote, on behalf of the Holders of all of the Preferred Securities, waive any past Event of Default in respect of the Preferred Securities and its consequences, provided that, if the underlying Event of Default under the Indenture: (i) is not waivable under the Indenture, the Event of Default under this Declaration shall also not be waivable; or (ii) requires the consent or vote of greater than a majority in principal amount of the holders of Subordinated Notes affected thereby (a "Super Majority") to be waived under the Indenture, the Event of Default under this Declaration may only be waived by the vote of the Holders of at least the proportion in liquidation amount of the Preferred Securities which the relevant Super Majority represents of the aggregate principal amount of the Subordinated Notes outstanding. The foregoing provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration and the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such default shall cease to exist, and any Event of Default with respect to the Preferred Securities arising therefrom shall be deemed to have been cured, for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Preferred Securities or impair any right consequent thereon. Any waiver by the Holders of the Preferred Securities of an Event of Default with respect to the Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Event of Default with respect to the Common Securities for all purposes of this Declaration without any further act, vote or consent of the Holders of the Common Securities. (b) The Holders of a Majority in liquidation amount of the Common Securities may, by vote, on behalf of the Holders of all of the Common Securities, waive any past Event of Default with respect to the Common Securities and its consequences, provided that, if the underlying Event of Default under the Indenture: -96- (i) is not waivable under the Indenture, except where the Holders of the Common Securities are deemed to have waived such Event of Default under this Declaration as provided below in the proviso to this Section 2.6(b), the Event of Default under this Declaration shall also be not waivable; or (ii) requires the consent or vote of a Super Majority to be waived, except where the Holders of the Common Securities are deemed to have waived such Event of Default under this Declaration as provided below in the proviso to this Section 2.6(b), the Event of Default under this Declaration may only be waived by the vote of the Holders of at least the proportion in liquidation amount of the Common Securities which the relevant Super Majority represents of the aggregate principal amount of the Subordinated Notes outstanding, provided further, each Holder of Common Securities will be deemed to have waived any such Event of Default and all Events of Default with respect to the Common Securities and its consequences until all Events of Default with respect to the Preferred Securities have been cured, waived or otherwise eliminated and until such Events of Default have been so cured, waived or otherwise eliminated, the Property Trustee will be deemed to be acting solely on behalf of the Holders of the Preferred Securities and only the Holders of the Preferred Securities will have the right to direct the Property Trustee in accordance with the terms of the Securities; and provided, further, that any waiver by the Holders of the Preferred Securities of an Event of Default with respect to the Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Event of Default with respect to the Common Securities for all purposes of this Declaration without any further act, vote or consent of the Holder of the Common Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of Section 316(a)(1)(A) and Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(A) and Section 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Declaration and the Securities, as permitted by the Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon such waiver, any such default shall cease to exist and any Event of Default with respect to the Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Common Securities or impair any right consequent thereon. (c) A waiver of any Event of Default under the Indenture by the Property Trustee at the direction of the Holders of the Preferred Securities constitutes a waiver of the corresponding Event of Default with respect to the Preferred Securities under this Declaration. Any waiver of an Event of Default under the Indenture by the Property Trustee at the direction of the Holders of the Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of the corresponding Event of Default under this Declaration with respect to the Common Securities for all purposes of this Declaration without further act, vote or consent of the Holders of the Common Securities. The foregoing provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration and the Securities, as permitted by the Trust Indenture Act. -97- Section 2.7 Event of Default; Notice. (a) The Property Trustee shall, within 90 days after the occurrence of an Event of Default with respect to the Securities known to the Property Trustee, transmit by mail, first class postage prepaid, to the Holders of the Securities, notices of all such Events of Default unless such Events of Default have been cured before the giving of such notice; provided, that, except for an Event of Default in the payment of principal of (or premium, if any) or interest on any of the Subordinated Notes or in the payment of any sinking fund installment established for the Subordinated Notes, the Property Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or Responsible Officers, of the Property Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities. (b) The Property Trustee shall not be deemed to have knowledge of any Event of Default except: (i) an Event of Default under Sections 501(1) and 501(2) of the Indenture; or (ii) any Event of Default as to which the Property Trustee shall have received written notice or of which a Responsible Officer of the Property Trustee charged with the administration of the Declaration shall have actual knowledge. ARTICLE III ORGANIZATION Section 3.1 Name. The Trust is named "BBC Capital Trust [ ]", as such name may be modified from time to time by the Regular Trustees following written notice to the Property Trustee, the Delaware Trustee and the Holders of Securities. The Trust's activities may be conducted under the name of the Trust or any other name deemed advisable by the Regular Trustees. Section 3.2 Office. The address of the principal office of the Trust is c/o Bergen Brunswig Corporation, 4000 Metropolitan Drive, Orange, California 98680 Attention: Chief Legal Officer. On ten Business Days written notice to the Property Trustee, the Delaware Trustee and the Holders of Securities, the Regular Trustees may designate another principal office. Section 3.3 Purpose. The exclusive purposes and functions of the Trust are (a) to issue and sell Securities and use the proceeds from such sale to acquire the Subordinated Notes, and (b) except as otherwise limited herein, to engage in only those other activities necessary or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its -98- assets, or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust not to be classified for United States federal income tax purposes as a grantor trust. It is the intention of all of the parties hereto that the Trust created hereunder constitutes a "grantor trust" for United States federal income tax purposes under the Code, and all parties hereto, and the Holders of the Preferred Securities by the purchase of the Preferred Securities, agree to treat the Trust in a manner consistent with such characterization. The provisions of this Agreement shall be interpreted consistently with such characterization. Unless otherwise required by law, by the acceptance of this Trust, the Trustees, the Sponsor and the Holders of the Preferred Securities and the Holders of the Common Securities each agrees that it will not take any position which is contrary to the classification of the Trust as a grantor trust for United States federal income tax purposes. Section 3.4 Authority. (a) Subject to the limitations provided in this Declaration and to the specific duties of the Property Trustee, the Regular Trustees shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust and an action taken by the Property Trustee on behalf of the Trust in accordance with its powers shall constitute the act of and serve to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of the Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Declaration. (b) Except as expressly set forth in this Declaration and except if a meeting of the Regular Trustees is called with respect to any matter over which the Regular Trustees have power to act, any power of the Regular Trustees may be exercised by, or with the consent of, any one such Regular Trustee. (c) Unless otherwise determined by the Regular Trustees, and except as otherwise required by the Business Trust Act or applicable law, any Regular Trustee is authorized to execute on behalf of the Trust any documents which the Regular Trustees have the power and authority to cause the Trust to execute pursuant to Section 3.6, provided that the registration statement referred to in Section 3.6, including any amendments thereto, shall, subject to Section 3.4(d), be signed by at least two of the Regular Trustees. (d) A Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of executing any documents which the Regular Trustees have power and authority to cause the Trust to execute pursuant to Section 3.6. Section 3.5 Title to Property of the Trust. Except as provided in Section 3.8 with respect to the Subordinated Notes and the Property Trustee Account or as otherwise provided in this Declaration, legal title to all assets of the Trust shall be vested in the Trust. A Holder shall not have legal title to any part of the assets of the Trust, but shall have an undivided beneficial interest in the assets of the Trust. -99- Section 3.6 Powers and Duties of the Regular Trustees. The Regular Trustees shall have the exclusive power, duty and authority to cause the Trust to engage in the following activities: (a) to execute, issue and sell the Preferred Securities and the Common Securities in accordance with this Declaration; provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided further, there shall be no interests in the Trust other than the Securities, and the issuance of Securities shall be limited to a simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date and any other date Preferred Securities and Common Securities are sold pursuant to any overallotment option granted in the Purchase Agreement; (b) in connection with the issue and sale of the Preferred Securities, at the direction of the Sponsor, to: (i) execute and file with the Commission, at such time as determined by the Sponsor, a registration statement on Form S-3 prepared by the Sponsor in relation to the Preferred Securities, including any pre- and post-effective amendments thereto and any related registration statement to be filed pursuant to Rule 462(b) of the Securities Act prepared by the Sponsor; (ii) execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor as necessary in order to qualify or register all or part of the Preferred Securities in any State in which the Sponsor has determined to qualify or register such Preferred Securities for sale; (iii) execute and file an application prepared by the Sponsor, at such time as determined by the Sponsor, to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities; (iv) execute and file with the Commission, at such time as determined by the Sponsor, a registration statement on Form 8-A prepared by the Sponsor relating to the registration of the Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto prepared by the Sponsor; (v) execute and enter into, and perform its obligations under, the Purchase Agreement providing for the sale of the Preferred Securities; (vi) execute and deliver letters, documents, or instruments with DTC relating to the Preferred Securities; (vii) execute and enter into agreements relating to the Purchase Agreement providing for the sale of the Securities; (viii) execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary in order to qualify or register all or part of the Preferred Securities in any State in which the Sponsor has determined to qualify or register such Preferred Securities for sale or resale, as the case may be; and -100- (ix) take all actions and perform such duties as may be required of the Regular Trustees to open checking, deposit or similar banking accounts as may be necessary in connection with the issuance and sale of the Securities. (c) in connection with the issue and sale of Common Securities, to execute and enter into, and perform its obligations under, the Common Securities Subscription Agreement dated as of [ ], [ ] between the Trust and the Sponsor (the "Common Securities Subscription Agreement"); (d) to execute and enter into, and perform its obligations under, the Subordinated Notes Subscription Agreement dated as of [ ], [ ] between the Trust and the Sponsor (the "Subordinated Notes Subscription Agreement") to acquire the Subordinated Notes with the proceeds of the sale of the Preferred Securities and the Common Securities; provided, however, that the Regular Trustees shall cause legal title to the Subordinated Notes to be owned by and held of record in the name of the Property Trustee for the benefit of the Holders of the Preferred Securities and the Common Securities; (e) to give the Sponsor and the Property Trustee prompt written notice of the occurrence of a Special Event; (f) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including for the purposes of Section 316(c) of the Trust Indenture Act and with respect to Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Preferred Securities and Common Securities as to such actions and applicable record dates; (g) to take all actions and perform such duties as may be required of the Regular Trustees pursuant to the terms of the Securities and this Declaration; (h) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 3.8, the Property Trustee has the power to bring such Legal Action; (i) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services; (j) to cause the Trust to comply with the Trust's obligations under the Trust Indenture Act; (k) to give the certificate to the Property Trustee required by Section 314(a)(4) of the Trust Indenture Act, which certificate may be executed by any Regular Trustee; (l) to incur expenses which are necessary or incidental to carrying out any of the purposes of the Trust; -101- (m) to act as, or appoint another Person to act as, registrar and transfer agent for the Securities; (n) to give prompt written notice to the Holders of the Securities of any notice received from the Subordinated Notes Issuer of its election to defer payments of interest on the Subordinated Notes by extending the interest payment period under the Indenture; (o) to take all action which may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Securities or to enable the Trust to effect the purposes for which the Trust was created; (p) to take any action, not inconsistent with this Declaration or with applicable law, which the Regular Trustees determine in their discretion to be necessary or desirable in carrying out the activities of the Trust as set out in this Section 3.6 including, but not limited to: (i) causing the Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act; (ii) causing the Trust to be classified for United States federal income tax purposes as a grantor trust; and (iii) cooperating with the Subordinated Notes Issuer to ensure that the Subordinated Notes will be treated as indebtedness of the Subordinated Notes Issuer for United States federal income tax purposes, provided that such action relating to this clause (iii) does not adversely affect the interests of Holders of the Securities; (q) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of the Trust; (r) to take all actions and perform such duties as may be required of the Regular Trustees pursuant to Section 11.2 herein; (s) to the extent provided in this Declaration, to cause the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of a Certificate of Cancellation with the Secretary of State of the State of Delaware; and (t) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing. The Regular Trustees shall exercise the powers set forth in this Section 3.6 in a manner which is consistent with the purposes, functions and characterization for United States federal income tax purposes of the Trust set out in Section 3.3 and the Regular Trustees shall not take any action which is inconsistent with or contrary to the purposes, functions and characterization for United States federal income tax purposes of the Trust set forth in Section 3.3. -102- Subject to this Section 3.6, the Regular Trustees shall have none of the powers or the authority of the Property Trustee set forth in Section 3.8. Section 3.7 Prohibition of Actions by the Trust and the Trustees. (a) Notwithstanding any provision herein to the contrary, the Trust shall not, and none of the Trustees (including the Property Trustee) shall cause the Trust to, engage in any activity other than as required or authorized by this Declaration. In particular, the Trust shall not and none of the Trustees (including the Property Trustee) shall cause the Trust to: (i) invest any proceeds received by the Trust from holding the Subordinated Notes, but shall distribute all such proceeds to Holders of Securities pursuant to the terms of this Declaration and of the Securities; (ii) acquire any assets other than the Subordinated Notes and any cash proceeds received with respect thereto; (iii) possess Trust property for other than a Trust purpose; (iv) make any loans or incur any indebtedness other than loans represented by the Subordinated Notes; (v) possess any power or otherwise act in such a way as to vary the assets of the Trust or the terms of the Securities in any way whatsoever; (vi) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Securities; or (vii) other than as expressly provided in this Declaration and Exhibit A hereto, (A) direct the time, method and place of exercising any trust or power conferred upon the Subordinated Notes Trustee with respect to the Subordinated Notes, (B) waive any past default that is waivable under Section 513 of the Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all the Subordinated Notes shall be due and payable or (D) consent to any amendment, modification or termination of the Indenture or the Subordinated Notes, where such consent shall be required, unless the Trust shall have received an opinion of counsel to the effect that such modification will not cause more than an insubstantial risk that for United States federal income tax purposes the Trust will not be classified as a grantor trust. Section 3.8 Powers and Duties of the Property Trustee. (a) The legal title to the Subordinated Notes shall be owned by and held of record in the name of the Property Trustee for the benefit of the Trust and the Holders of the Securities. The right, title and interest of the Property Trustee to the Subordinated Notes shall vest automatically in each Person who may hereafter be appointed as Property Trustee as set forth in Section 5.6. Such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered. -103- (b) The Property Trustee shall not transfer its right, title and interest in the Subordinated Notes to the Regular Trustees or to the Delaware Trustee (if the Property Trustee does not also act as Delaware Trustee). (c) The Property Trustee shall: (i) establish and maintain a segregated non-interest bearing trust account (the "Property Trustee Account") in the name of and under the exclusive control of the Property Trustee on behalf of the Trust and the Holders of the Securities and, upon the receipt of payments of funds made in respect of the Subordinated Notes held by the Property Trustee, deposit such funds into the Property Trustee Account and make payments to the Holders of the Preferred Securities and the Common Securities from the Property Trustee Account in accordance with Section 6.1. Funds in the Property Trustee Account shall be held uninvested until disbursed in accordance with this Declaration. The Property Trustee Account shall be an account which is maintained with a banking institution the rating on whose long term unsecured indebtedness is at least equal to the rating assigned to the Preferred Securities by a "nationally recognized statistical rating organization", as that term is defined for purposes of Rule 436(g)(2) under the Securities Act; (ii) engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Preferred Securities and the Common Securities to the extent the Subordinated Notes are redeemed or mature; and (iii) upon notice of distribution issued by the Regular Trustees in accordance with the terms of the Preferred Securities and the Common Securities, engage in such ministerial activities as shall be necessary or appropriate to effect the distribution of the Subordinated Notes to Holders of Securities upon the Sponsor's election to dissolve the Trust in accordance with Section 8.1(a)(v). (d) The Property Trustee shall take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of the Securities and this Declaration. (e) The Property Trustee shall have the power to take any Legal Action which arises out of or in connection with an Event of Default or the Property Trustee's duties and obligations under this Declaration, the Business Trust Act or the Trust Indenture Act. If the Property Trustee fails to enforce its rights under the Subordinated Notes after a Holder of Preferred Securities has made a written request, such Holder may, to the extent permitted by applicable law, institute a legal proceeding against the Subordinated Notes Issuer, to enforce the Property Trustee's rights under the Subordinated Notes, without first instituting any legal proceeding against the Property Trustee or any other Person. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Subordinated Notes Issuer to pay interest, premium, if any, or principal on the Subordinated Notes on the date such interest, premium, if any, or principal is otherwise payable (or in the case of redemption, on the redemption date), then a Holder of -104- Preferred Securities may directly institute a proceeding for enforcement of payment to such Holder of the principal of, premium, if any, or interest on, the Subordinated Notes having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such Holder (a "Direct Action"). Notwithstanding any payments made to such Holder of Preferred Securities by the Subordinated Notes Issuer in connection with a Direct Action, the Subordinated Notes Issuer shall remain obligated to pay the principal of, premium, if any, or interest on the Subordinated Notes held by the Trust or the Property Trustee of the Trust, and the Subordinated Notes Issuer shall be subrogated to the rights of the Holder of such Preferred Securities with respect to payments on the Preferred Securities. Except as provided in the preceding sentences and in the Preferred Securities Guarantee, the Holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Subordinated Notes. (f) No resignation of the Property Trustee shall be effective unless either: (i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders of Securities pursuant to the terms of the Securities; or (ii) a Successor Property Trustee has been appointed and accepted that appointment in accordance with Section 5.6. (g) The Property Trustee shall have the legal power to exercise all of the rights, powers and privileges of a holder of Subordinated Notes under the Indenture and, if an Event of Default occurs and is continuing, the Property Trustee shall, for the benefit of Holders of the Securities, enforce its rights as holder of the Subordinated Notes subject to the rights of the Holders pursuant to the terms of such Securities and this Declaration. (h) The Property Trustee may authorize one or more Persons (each, a "Paying Agent") to pay Distributions, redemption payments or liquidation payments on behalf of the Trust with respect to the Preferred Securities and any such Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed by the Property Trustee at any time and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Property Trustee. (i) Subject to this Section 3.8, the Property Trustee shall have none of the powers or the authority of the Regular Trustees set forth in Section 3.6. (j) The Property Trustee must exercise the powers set forth in this Section 3.8 in a manner which is consistent with the purposes, functions and characterization for United States federal income tax purposes of the Trust set forth in Section 3.3 and the Property Trustee shall not take any action which is inconsistent with or contrary to the purposes, functions and characterization for United States federal income tax purposes of the Trust set out in Section 3.3. (k) The Trust initially appoints the Property Trustee as transfer agent and registrar for the Preferred Securities. Section 3.9 Certain Duties and Responsibilities of the Property Trustee. (a) The Property Trustee, before the occurrence of any Event of Default and after the curing or waiver of all Events of Default that may have occurred: -105- (i) shall undertake to perform only such duties as are specifically set forth in this Declaration and in the terms of the Securities, and no implied covenants, duties or obligations shall be read into this Declaration against the Property Trustee; and (ii) in the absence of bad faith on the part of the Property Trustee, the Property Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Property Trustee and conforming to the requirements of this Declaration; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Declaration. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6), the Property Trustee shall exercise such of the rights and powers vested in it by this Declaration, and use the same degree of care and skill in their exercise or use, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs; (b) no provision of this Declaration shall be construed to relieve the Property Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) this Subsection shall not be construed to limit Subsection (a) of this Section; (ii) the Property Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Property Trustee, unless it shall be proved that the Property Trustee was negligent in ascertaining the pertinent facts; (iii) the Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in liquidation amount of the Securities at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under this Declaration including, without limitation, with respect to the Securities; and (iv) no provision of this Declaration shall require the Property Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) Whether or not therein expressly so provided, every provision of this Declaration relating to the conduct or affecting the liability of or affording protection to the Property Trustee shall be subject to the provisions of this Section. -106- Section 3.10 Certain Rights of the Property Trustee. Subject to the provisions of Section 3.9: (a) the Property Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any act of the Sponsor or the Regular Trustees contemplated by this Declaration shall be sufficiently evidenced by an Officers' Certificate; (c) whenever in the administration of this Declaration, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor or the Regular Trustees; (d) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (or any recording, refiling or registration thereof); (e) the Property Trustee may consult with counsel of its selection and the written advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. Such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees; (f) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Declaration at the request or direction of any Holder, unless such Holder shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in complying with such request or direction; (g) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the Property Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Trust, personally or by agent or attorney; (h) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (i) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action; and no third party shall be required to inquire as to the authority of the Property Trustee to so act, or as to its compliance with any of the terms and provisions of this Declaration, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; -107- (j) whenever in the administration of this Declaration the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the Securities as would be entitled to direct the Property Trustee under the terms of the Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions; and (k) the Property Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Declaration. Section 3.11 Delaware Trustee. Notwithstanding any other provision of this Declaration other than Section 5.1, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Trustees described in this Declaration, except as mandated by the Business Trust Act. Except as set forth in Section 5.1, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807(a) of the Business Trust Act. In the event that the Delaware Trustee shall at any time be required to take any action or perform any duty hereunder, the Delaware Trustee shall be entitled to the benefits of Section 3.10. No implied covenants or obligations shall be read into this Declaration against the Delaware Trustee. Section 3.12 Execution of Documents. Unless otherwise determined by the Regular Trustees and except as otherwise required by the Business Trust Act, each of the Regular Trustees are authorized to execute on behalf of the Trust any documents which the Regular Trustees have the power and authority to execute pursuant to Section 3.6. Section 3.13 Not Responsible for Recitals or Issuance of Securities. The recitals contained in this Declaration and the Securities shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof. The Trustees make no representations as to the validity or sufficiency of this Declaration or the Securities. Section 3.14 Duration of Trust. The Trust, unless terminated pursuant to the provisions of Article VIII hereof, shall have existence for [ ] years from the Closing Date. -108- Section 3.15 Mergers. (a) The Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any corporation or other body, except as described in Sections 3.15(b) and (c). (b) The Trust may, with the consent of a majority of the Regular Trustees and without the consent of the Holders of the Securities, the Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or be replaced by a trust organized as such under the laws of any State; provided, that if the Trust is not the surviving entity: (i) such successor entity (the "Successor Entity") either: (A) expressly assumes all of the obligations of the Trust under the Securities; or (B) substitutes for the Preferred Securities other securities having substantially the same terms as the Preferred Securities (the "Successor Securities") so long as the Successor Securities rank the same as the Preferred Securities rank with respect to Distributions and payments upon liquidation, redemption and maturity and substitutes for the Common Securities other securities having substantially the same terms as the Common Securities (the "Successor Common Securities"), so long as the Successor Common Securities rank the same as the Common Securities rank with respect to Distributions and payments upon liquidation, redemption, repayment and otherwise; (ii) the Subordinated Notes Issuer expressly acknowledges a trustee of the Successor Entity which possesses the same powers and duties as the Property Trustee as the Holder of the Subordinated Notes; (iii) such merger, consolidation, amalgamation or replacement does not cause the Preferred Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization; (iv) such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the Holders of the Securities (including any Successor Securities and any Successor Common Securities) in any material respect (other than with respect to any dilution of the Holders' interest in the new entity); (v) such Successor Entity has a purpose identical to that of the Trust; (vi) prior to such merger, consolidation, amalgamation or replacement, the Sponsor has received an opinion of counsel to the Trust experienced in such matters to the effect that: (A) such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the Holders of the Securities (including any Successor Securities and Successor Common Securities) in any material respect (other than with respect to any dilution of the Holders' interest in the new entity); -109- (B) following such merger, consolidation, amalgamation or replacement, neither the Trust nor the Successor Entity will be required to register as an Investment Company; and (C) following such merger, consolidation, amalgamation or replacement, the Successor Entity will continue to be classified as a grantor trust for United States federal income tax purposes; and (vii) the Sponsor guarantees the obligations of such Successor Entity under the Successor Securities and Successor Common Securities at least to the extent provided by the Preferred Securities Guarantee and the Common Securities Guarantee, respectively. (c) Notwithstanding Section 3.15(b), the Trust shall not (except with the written consent of Holders of 100% of the outstanding Preferred Securities) consolidate, amalgamate, merge with or into, or be replaced by any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it if such consolidation, amalgamation, merger or replacement would cause the Trust or Successor Entity to be classified as other than a grantor trust for United States federal income tax purposes. Prior to such merger, consolidation, amalgamation, or replacement, the Sponsor shall have received an opinion of tax counsel to the Trust, experienced in such matters, to the effect that following such merger, consolidation, amalgamation or replacement, the Trust will continue to be classified as a grantor trust for United States federal income tax purposes. ARTICLE IV SPONSOR Section 4.1 Sponsor's Purchase of Common Securities. On the Closing Date [and any other date Preferred Securities and Common Securities are sold pursuant to the overallotment option granted in the Purchase Agreement] the Sponsor will purchase all the Common Securities issued by the Trust, at the same time as the Preferred Securities are sold, in an amount at least equal to 3% of the capital of the Trust. Section 4.2 Responsibilities of the Sponsor. In connection with the issue and sale of the Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities: (a) to prepare for filing by the Trust with the Commission, at such time as determined by the Sponsor, a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto; (b) if necessary, to determine the States in which to take appropriate action to qualify the Trust or to qualify or register for sale all or part of the Preferred Securities and to take any and all such acts, other than actions which must be taken by the Trust, and advise the Trust of actions it must take, -110- and prepare for execution and filing any documents to be executed and filed by the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States; (c) if necessary, to prepare for filing by the Trust an application, at such time as determined by the Sponsor, to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing or quotation upon notice of issuance, of any Preferred Securities; (d) if necessary, to prepare for filing by the Trust with the Commission, at such time as determined by the Sponsor, a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto; (e) if necessary, to negotiate the terms of the Purchase Agreement providing for the sale of the Preferred Securities; (f) execute and enter into the Purchase Agreement, the Subordinated Notes Subscription Agreement and the Common Securities Subscription Agreement to be entered into with the Sponsor; and (g) prepare for execution and filing by the Trust of documents or instruments to be delivered to DTC relating to the Preferred Securities. Section 4.3 Right to Proceed. The Sponsor acknowledges the rights of Holders to institute a Direct Action as set forth in Section 3.8(e) hereto. ARTICLE V TRUSTEES Section 5.1 Number of Trustees. (a) The number of Trustees shall initially be five (5). (b) At any time before the issuance of any Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees. (c) After the issuance of any Securities, the number of Trustees may be increased or decreased by vote of the Holders of a Majority in liquidation amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities; provided, however, that the number of Trustees shall in no event be less than three (3); provided further that (1) if required by the Business Trust Act, one Trustee (the "Delaware Trustee") shall be: (a) a natural person who is a resident of the State of Delaware; or (b) if not a natural person, an entity which has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law (provided that if the Property Trustee has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, then the -111- Property Trustee shall also be the Delaware Trustee and Section 3.11 shall have no application); (2) there shall be at least two Trustees who are employees or officers of, or are affiliated with, the Sponsor; and (3) one Trustee shall be the Property Trustee for so long as this Declaration is required to qualify as an indenture under the Trust Indenture Act, and such Trustee may also serve as Delaware Trustee if it meets the applicable requirements. Section 5.2 Delaware Trustee. The initial Delaware Trustee under this Declaration shall be: Chase Manhattan Bank Delaware, 1201 North Market Street, Wilmington, Delaware 19801 Attn: Corporate Trust Administration. If the Delaware Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Delaware Trustee and the Holder of the Common Securities (as if it were the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. Section 5.3 Property Trustee; Eligibility. The initial Property Trustee shall be: Chase National Bank and Trust Company, National Association, 101 California Street, Suite 2725, San Francisco, California 94111 Attn:Corporate Trust Administration. (a) There shall at all times be one Trustee which shall act as Property Trustee which shall: (i) not be an Affiliate of the Sponsor; and (ii) be a corporation organized and doing business under the laws of the United States of America or any State thereof or of the District of Columbia, or a corporation or Person permitted by the Commission to act as an institutional trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by Federal, State or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then for the purposes of this Section 5.3(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. (b) If at any time the Property Trustee shall cease to be eligible to so act under Section 5.3(a), the Property Trustee shall immediately resign in the manner and with the effect set forth in Section 5.6(c). (c) If the Property Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the -112- Property Trustee and the Holder of the Common Securities (as if it were the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. (d) The Preferred Securities Guarantee, the Common Securities Guarantee and the Indenture shall be deemed to be specifically described in this Declaration and the Indenture for purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. Section 5.4 Qualifications of Regular Trustees and Delaware Trustee Each Regular Trustee and the Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee) shall be either a natural person who is at least 21 years of age or a legal entity which shall act through one or more Authorized Officers. Section 5.5 Regular Trustees. The initial Regular Trustees under this Declaration shall be: Donald R. Roden, Neil F. Dimick and Milan A. Sawdei, c/o Bergen Brunswig Corporation, 4000 Metropolitan Drive, Orange, California 98680; (a) Except as expressly set forth in this Declaration and except if a meeting of the Regular Trustees is called with respect to any matter over which the Regular Trustees have power to act, any power of the Regular Trustees may be exercised by, or with the consent of, any one such Regular Trustee. (b) Unless otherwise determined by the Regular Trustees, and except as otherwise required by the Business Trust Act or applicable law, any Regular Trustee is authorized to execute on behalf of the Trust any documents which the Regular Trustees have the power and authority to cause the Trust to execute pursuant to Section 3.6. Section 5.6 Appointment, Removal and Resignation of Trustees. (a) Subject to Section 5.6(b), Trustees may be appointed or removed without cause at any time: (i) until the issuance of any Securities, by written instrument executed by the Sponsor; and (ii) after the issuance of any Securities, by vote of the Holders of a Majority in liquidation amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities. (b) The following provisions shall apply: (i) The Trustee that acts as Property Trustee shall not be removed in accordance with Section 5.6(a) until a Successor Property Trustee has -113- been appointed and has accepted such appointment by written instrument executed by such Successor Property Trustee and delivered to the Regular Trustees and the Sponsor. (ii) So long as a Delaware Trustee is required pursuant to Section 5.1, the Trustee that acts as Delaware Trustee shall not be removed in accordance with Section 5.6(a) until a successor Trustee possessing the qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has accepted such appointment by written instrument executed by such Successor Delaware Trustee and delivered to the Regular Trustees and the Sponsor. (c) A Trustee appointed to office shall hold office until his successor shall have been appointed or until such Trustee's death, bankruptcy, dissolution, termination, removal or resignation. Any Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing signed by the Trustee and delivered to the Sponsor and the Trust, which resignation shall take effect upon such delivery or upon such later date as is specified therein; provided, however, that: (i) no such resignation of the Trustee that acts as the Property Trustee shall be effective (A) until a Successor Property Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Property Trustee and delivered to the Trust, the Sponsor and the resigning Property Trustee; or (B) until the assets of the Trust have been completely liquidated and the proceeds thereof distributed to the holders of the Securities; and (ii) so long as a Delaware Trustee is required pursuant to Section 5.1, no such resignation of the Trustee that acts as the Delaware Trustee shall be effective until a Successor Delaware Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Delaware Trustee and delivered to the Trust, the Sponsor and the resigning Delaware Trustee. (d) The Holders of the Common Securities shall use their best efforts to promptly appoint a Successor Delaware Trustee (so long as a Delaware Trustee is required pursuant to Section 5.1) or Successor Property Trustee, as the case may be, if the Delaware Trustee or the Property Trustee delivers an instrument of resignation in accordance with this Section 5.6. (e) If no Successor Property Trustee or Successor Delaware Trustee shall have been appointed and accepted appointment as provided in this Section 5.6 within 60 days after delivery of an instrument of resignation or removal, the Property Trustee or Delaware Trustee resigning or being removed may petition any court of competent jurisdiction for appointment of a Successor Property Trustee or Successor Delaware Trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee, as the case may be. (f) Any Successor Delaware Trustee appointed hereunder shall promptly file an amendment to the Certificate of Trust with the Delaware Secretary of State identifying its name and residence or principal place of business in the State of Delaware. -114- Section 5.7 Vacancies Among Trustees. If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A resolution certifying the existence of such vacancy by a majority of the Regular Trustees shall be conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section 5.6. Section 5.8 Effect of Vacancies. The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee, or any one of them, shall not operate to annul the Trust. Whenever a vacancy in the number of Regular Trustees shall occur, until such vacancy is filled by the appointment of a Regular Trustee in accordance with Section 5.6, the Regular Trustees in office, regardless of their number, shall have all the powers granted to the Regular Trustees and shall discharge all the duties imposed upon the Regular Trustees by this Declaration. Section 5.9 Meetings. Meetings of the Regular Trustees shall be held from time to time upon the call of any Regular Trustee. Regular meetings of the Regular Trustees may be held at a time and place fixed by resolution of the Regular Trustees. Notice of any in-person meetings of the Regular Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 48 hours before such meeting. Notice of any telephonic meetings of the Regular Trustees or any committee thereof shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting. Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice of such meeting except where a Regular Trustee attends a meeting for the express purpose of objecting to the transaction of any activity on the ground that the meeting has not been lawfully called or convened. Unless provided otherwise in this Declaration, any action of the Regular Trustees may be taken at a meeting by vote of a majority of the Regular Trustees present (whether in person or by telephone) and eligible to vote with respect to such matter, provided that a Quorum is present, or without a meeting by the unanimous written consent of the Regular Trustees. Section 5.10 Delegation of Power. (a) Any Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purpose of executing any documents contemplated in Section 3.6 including any registration statement or amendment thereto filed with the Commission or making any other governmental filing. (b) The Regular Trustees shall have power to delegate from time to time to such of their number or to officers of the Trust the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Regular Trustees or otherwise as the Regular Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Trust, as set forth herein. -115- Section 5.11 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Property Trustee or the Delaware Trustee, as the case may be, may be merged or converted or with which either may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Property Trustee or the Delaware Trustee, as the case may be, may be subject shall be bound by this Declaration, or any corporation succeeding to all or substantially all the corporate trust business of the Property Trustee or the Delaware Trustee, as the case may be, shall be the successor of the Property Trustee or the Delaware Trustee, as the case may be, hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided, however, that the Delaware Trustee shall file an amendment to the Certificate of Trust with the Delaware Secretary of State in accordance with Section 5.6(f). ARTICLE VI DISTRIBUTIONS Section 6.1 Distributions. Holders shall receive Distributions in accordance with the applicable terms of the relevant Holder's Securities. Distributions shall be made on the Preferred Securities and the Common Securities in accordance with the preferences set forth in their respective terms. If and to the extent that the Subordinated Notes Issuer makes a payment of interest (including Additional Interest (as defined in the Indenture)), premium, if any, and principal on the Subordinated Notes held by the Property Trustee (the amount of any such payment being a "Payment Amount"), the Property Trustee shall and is directed, to the extent funds are available for that purpose, to make a Distribution of the Payment Amount to Holders. In the event the Sponsor shall defer any payment of principal, premium, if any, or interest on the Subordinated Notes, the Trust shall, in like manner, defer payments of Distributions on the Securities, and Additional Distributions (as defined in the Indenture) shall accrue on such Securities for so long as the payment of principal, premium, if any, or interest on the Subordinated Notes is deferred. ARTICLE VII ISSUANCE OF SECURITIES Section 7.1 General Provisions Regarding Securities. (a) The Regular Trustees shall, on behalf of the Trust, issue one class of preferred securities representing undivided beneficial interests in the assets of the Trust having such terms as are set forth in Exhibit A and incorporated herein by reference (the "Preferred Securities"), and one class of common securities representing undivided beneficial interests in the assets of the Trust having such terms as are set forth in Exhibit A and incorporated herein by reference (the "Common Securities"). The Trust shall have no -116- securities or other interests in the assets of the Trust other than the Preferred Securities and the Common Securities. (b) The Certificates shall be signed on behalf of the Trust by the Regular Trustees (or if there are more than two Regular Trustees by any two of the Regular Trustees). Such signatures may be the manual or facsimile signatures of the present or any future Regular Trustee. Typographical and other minor errors or defects in any such reproduction of any such signature shall not affect the validity of any Certificate. In case any Regular Trustee of the Trust who shall have signed any of the Certificates shall cease to be such Regular Trustee before the Certificate so signed shall be delivered by the Trust, such Certificate nevertheless may be delivered as though the person who signed such Certificate had not ceased to be such Regular Trustee; and any Certificate may be signed on behalf of the Trust by such persons who shall at the actual date of execution of such Security, be the Regular Trustees of the Trust, although at the date of the execution and delivery of this Declaration any such person was not such a Regular Trustee. Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation of any stock exchange on which Securities may be listed, or to conform to usage. A Preferred Security shall not be valid until authenticated by the manual signature of an authorized signatory of the Property Trustee. The signature shall be conclusive evidence that the Preferred Security has been authenticated under this Declaration. Upon a written order of the Trust signed by one Regular Trustee, the Property Trustee shall authenticate the Preferred Securities for original issue. The Property Trustee may appoint an authenticating agent acceptable to the Trust to authenticate Preferred Securities. An authenticating agent may authenticate Preferred Securities whenever the Property Trustee may do so. Each reference in this Declaration to authentication by the Property Trustee includes authentication by such agent. An authenticating agent has the same rights as the Property Trustee to deal with the Trust or an Affiliate. (c) The consideration received by the Trust for the issuance of the Securities shall constitute a contribution to the capital of the Trust and shall not constitute a loan to the Trust. (d) Upon issuance of the Securities as provided in this Declaration, the Securities so issued shall be deemed to be validly issued, fully paid and nonassessable. (e) Every Person, by virtue of having become a Holder or a Preferred Security Beneficial Owner in accordance with the terms of this Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration. -117- ARTICLE VIII DISSOLUTION AND TERMINATION OF TRUST Section 8.1 Dissolution and Termination of Trust. (a) The Trust shall dissolve and its affairs shall be wound up, upon the earliest to occur of the following: (i) upon the bankruptcy of the Sponsor or the Holder of the Common Securities; (ii) upon the filing of a certificate of dissolution or its equivalent with respect to the Sponsor, the filing of a certificate of cancellation with respect to the Trust upon the consent (other than in connection with a dissolution of the Trust pursuant to clause (v) of this Section 8.1(a)) of the Holders of at least a Majority in liquidation amount of the Securities, voting together as a single class, to file such certificate of cancellation, or the revocation of the charter of the Sponsor or the Holder of the Common Securities and the expiration of 90 days after the date of revocation without a reinstatement thereof; (iii) upon the entry of a decree of judicial dissolution of the Sponsor or the Trust or the Holder of the Common Securities; (iv) when all of the Securities shall have been called for redemption and the amounts necessary for redemption thereof shall have been paid to the Holders in accordance with the terms of the Securities; (v) upon the election by the Sponsor, effective upon notice to the Trust, the Property Trustee and the Delaware Trustee, to dissolve the Trust in accordance with the terms of the Securities and all of the Subordinated Notes held by the Property Trustee shall have been distributed to the Holders of Securities in exchange for all of the Securities; (vi) upon the written direction to the Property Trustee from the Sponsor at any time to terminate the Trust and, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, the distribution of Subordinated Notes to Holders in exchange for the Securities, subject to the Regular Trustees' receipt of an opinion of counsel experienced in such matters to the effect that the Holders of the Preferred Securities will not recognize any income, gain or loss for United States federal income tax purposes as a result of the dissolution of the Trust and such distribution to Holders; (vii) before the issuance of any Securities, with the consent of all of the Regular Trustees and the Sponsor; or (viii) if the Subordinated Notes are convertible into the Sponsor's Class A Common Stock, upon the exchange of [all of the Securities for Subordinated Notes and the concurrent conversion of all of the Subordinated Notes into the Sponsor's Class A Common Stock] [alternative language if less than 100% conversion can give rise to dissolution]. -118- (b) As soon as is practicable after the occurrence of an event referred to in Section 8.1(a) or dissolution pursuant to Section 3.14 and upon the completion of the winding up of the Trust, one of the Regular Trustees (each Regular Trustee being hereby authorized to take such action) shall file a certificate of cancellation with the Delaware Secretary terminating the Trust. (c) The provisions of Section 3.9 and Article X shall survive the termination of the Trust. ARTICLE IX TRANSFER OF INTERESTS Section 9.1 Transfer of Securities. (a) Securities may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Declaration and in the terms of the Securities. Any transfer or purported transfer of any Security not made in accordance with this Declaration shall be null and void; (b) subject to this Article IX, Preferred Securities shall be freely transferable; and (c) subject to this Article IX, the Sponsor and any Related Party may only transfer Common Securities to the Sponsor or a Related Party of the Sponsor; provided that, any such transfer shall not violate the Securities Act and is subject to the condition precedent that the transferor obtain the written opinion of counsel experienced in such matters that such transfer would not cause more than an insubstantial risk that: (i) the Trust would not be classified for United States federal income tax purposes as a grantor trust; and (ii) the Trust would be an Investment Company required to register under the Investment Company Act or the transferee would become an Investment Company required to register under the Investment Company Act. (d) Each Common Security that bears or is required to bear the legend set forth in this Section 9.1(d) shall be subject to the restrictions on transfer provided in the legend set forth in this Section 9.1(d), unless such restrictions on transfer shall be waived by the written consent of the Regular Trustees, and the Holder of each such Common Security, by such security holder's acceptance thereof, agrees to be bound by such restrictions on transfer. As used in this Section 9.1(d) and in Section 9.1(c), the term "transfer" encompasses any sale, pledge, transfer or other disposition of any such Common Security. Any certificate evidencing a Common Security shall bear a legend in substantially the following form, unless otherwise agreed by the Regular Trustees (with written notice thereof to the Property Trustee): -119- THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE REGISTERED UNDER OR ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT. THE TRANSFER OF THE SECURITY EVIDENCED HEREBY IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO BELOW. Section 9.2 Transfer of Certificates. (a) The Regular Trustees shall provide for the registration of Common Securities and of transfers of Common Securities, which will be effected without charge but only upon payment (with such indemnity as the Regular Trustees may require) in respect of any tax or other government charges which may be imposed in relation to it. Upon surrender for registration of transfer of any Common Security, the Regular Trustees shall cause one or more new Common Securities to be issued in the name of the designated transferee or transferees. Every Common Security surrendered for registration of transfer shall be accompanied by a written instrument of transfer in form satisfactory to the Regular Trustees duly executed by the Holder or such Holder's attorney duly authorized in writing. Each Common Security surrendered for Common Security shall be entitled to the rights and subject to the obligations of a Holder hereunder upon the receipt by such transferee of a Certificate representing such Common Security. By acceptance of a Certificate representing a Common Security, each transferee shall be deemed to have agreed to be bound by this Declaration and the documents incorporated by referenced herein. (b) The Property Trustee shall provide for the registration of Preferred Securities and of transfers of Preferred Securities, which will be effected without charge but only upon payment (with such indemnity as the Property Trustee may require) in respect of any tax or other government charges which may be imposed in relation to it. Upon surrender for registration of transfer of any Preferred Security, the Regular Trustees shall execute, and the Property Trustee shall authenticate and deliver, one or more new Certificates representing Preferred Securities to be issued in the name of the designated transferee or transferees. Every Preferred Security surrendered for registration of transfer shall be accompanied by a written instrument of transfer in form satisfactory to the Property Trustee duly executed by the Holder or such Holder's attorney duly authorized in writing. Each Preferred Security surrendered for registration of transfer shall be canceled by the Property Trustee. A transferee of a Preferred Security shall be entitled to the rights and subject to the obligations of a Holder hereunder upon the receipt by such transferee of a Certificate representing such Preferred Security. By acceptance of a Preferred Security, each transferee shall be deemed to have agreed to be bound by this Declaration and the documents incorporated by referenced herein. (c) Notwithstanding any other provisions of this Declaration, a Global Certificate may not be transferred as a whole, except by the Clearing Agency to a nominee of the Clearing Agency or by the Clearing Agency or any such nominee to a successor Clearing Agency or a nominee of such successor Clearing Agency. -120- Section 9.3 Deemed Security Holders. The Trustees may treat the Person in whose name any Certificate shall be registered on the books and records of the Trust as the sole holder of such Certificate and of the Securities represented by such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Certificate or in the Securities represented by such Certificate on the part of any Person, whether or not the Trustees shall have actual or other notice thereof. Section 9.4 Book Entry Interests. (a) So long as Preferred Securities are eligible for book entry settlement with the Clearing Agency or unless otherwise required by law, all Preferred Securities that are so eligible may be represented by one or more fully registered global Preferred Security Certificates (each a "Global Certificate"), to be delivered to DTC, the initial Clearing Agency, or its custodian, by, or on behalf of, the Trust. Such Global Certificates shall initially be registered on the books and records of the Trust in the name of Cede & Co., the nominee of DTC, and no Preferred Security Beneficial Owner will receive a definitive Preferred Security Certificate representing such Preferred Security Beneficial Owner's interests in such Global Certificates, except as provided in Section 9.7. The transfer and exchange of beneficial interests in any such Security in global form shall be effected through the Clearing Agency in accordance with this Declaration and the procedures of the Clearing Agency therefor. (b) Except as provided below, Beneficial Owners of a Preferred Security in global form shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered the Holder of such Preferred Security in global form. (c) Any Global Certificate may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Declaration as may be required by the Clearing Agency, by any national securities exchange or by the National Association of Securities Dealers, Inc. as may be required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or interdealer quotation system upon which the Preferred Securities may be listed or traded or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Preferred Securities are subject. (d) Unless and until definitive, fully registered Preferred Security Certificates (the "Definitive Preferred Security Certificates") have been issued to the Preferred Security Beneficial Owners pursuant to Section 9.7: (i) the provisions of this Section 9.4 shall be in full force and effect with respect to such Preferred Securities; (ii) the Trust and the Trustees shall be entitled to deal with the Clearing Agency for all purposes of this Declaration (including the payment of Distributions on the Global Certificates and receiving approvals, votes or consents hereunder) as the Holder of the Preferred Securities and the sole -121- holder of the Global Certificates and shall have no obligation to the Preferred Security Beneficial Owners; (iii) to the extent that the provisions of this Section 9.4 conflict with any other provisions of this Declaration, the provisions of this Section 9.4 shall control; and (iv) the rights of the Beneficial Owners of Preferred Securities in global form shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Preferred Security Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants. The Clearing Agency will make book entry transfers among the Clearing Agency Participants and receive and transmit payments of Distributions on the Global Certificates to such Clearing Agency Participants. DTC will make book entry transfers among the Clearing Agency Participants, provided that solely for the purposes of determining whether the Holders of the requisite amount of Preferred Securities have voted on any matter provided for in this Declaration, so long as Definitive Preferred Security Certificates have not been issued, the Trustees may conclusively rely on, and shall be protected in relying on, any written instrument (including a proxy) delivered to the Trustees by the Clearing Agency setting forth the Preferred Securities Beneficial Owners' votes or assigning the right to vote on any matter to any other Persons either in whole or in part. Notwithstanding any other provisions of this Declaration (other than the provisions set forth in this Section 9.4(d)), a Preferred Security in global form may not be transferred as a whole except by the Clearing Agency to a nominee of the Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency or another nominee of the Clearing Agency or to a successor Clearing Agency or a nominee of such successor Clearing Agency. Section 9.5 Notices to Clearing Agency. Whenever a notice or other communication to the Preferred Security Holders is required under this Declaration, unless and until Definitive Preferred Security Certificates shall have been issued to the Preferred Security Beneficial Owners pursuant to Section 9.7, the Trustees shall give all such notices and communications specified herein to be given to the Preferred Security Holders, to the Clearing Agency, and shall have no notice obligations to the Preferred Security Beneficial Owners. Section 9.6 Appointment of Successor Clearing Agency. If any Clearing Agency notifies the Trust that it is unwilling or unable to continue its services as securities depositary with respect to the Preferred Securities, if such Clearing Agency ceases to perform such services, or if at any time such Clearing Agency ceases to be a clearing agency registered as such under the Exchange Act when such Clearing Agency is required to be so registered to act as such depositary, then the Regular Trustees may, in their sole discretion, appoint a successor Clearing Agency with respect to such Preferred Securities. -122- 1 Section 9.7 Definitive Preferred Security Certificates Under Certain Circumstances. If: (a) a Clearing Agency notifies the Trust that it is unwilling or unable to continue its services as securities depositary with respect to the Preferred Securities, if such Clearing Agency ceases to perform such services, or if at any time such Clearing Agency ceases to be a clearing agency registered as such under the Exchange Act when such Clearing Agency is required to be so registered to act as such depositary, and a successor Clearing Agency is not appointed within 90 days after such discontinuance pursuant to Section 9.6; or (b) the Regular Trustees (with the consent of the Sponsor) in their sole discretion determine that the Preferred Securities in global form shall be exchanged for certificated Preferred Securities; then: (i) Definitive Preferred Security Certificates shall be prepared by the Regular Trustees on behalf of the Trust with respect to such Preferred Securities; and (ii) upon surrender of the Global Certificates by the Clearing Agency, accompanied by registration instructions, the Regular Trustees shall cause Definitive Preferred Security Certificates to be delivered to Preferred Security Beneficial Owners of such Preferred Securities in accordance with the instructions of the Clearing Agency. Neither the Trustees nor the Trust shall be liable for any delay in delivery of such instructions and each of them may conclusively rely on, and shall be protected in relying on, said instructions of the Clearing Agency. The Definitive Preferred Security Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which Preferred Securities may be listed, or to conform to usage. At such time as all interests in a Preferred Security in global form have been redeemed, exchanged, repurchased or canceled, such Preferred Security in global form shall be, upon receipt thereof, canceled by the Trust in accordance with standing procedures and instructions of the Clearing Agency. Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates. If: (a) any mutilated Certificates should be surrendered to the Regular Trustees, or if the Regular Trustees shall receive evidence to their satisfaction of the destruction, loss or theft of any Certificate; and -123- (b) there shall be delivered to the Property Trustee or the Regular Trustees such security or indemnity as may be required by them to keep each of them harmless, then, in the absence of notice that such Certificate shall have been acquired by a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute and, in the case of a Common Security, deliver, or, in the case of a Preferred Security, the Property Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like denomination. In connection with the issuance of any new Certificate under this Section 9.8, the Property Trustee or the Regular Trustees may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Certificate issued pursuant to this Section shall constitute conclusive evidence of an ownership interest in the relevant Securities, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time. ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS Section 10.1 Liability. (a) Except as expressly set forth in this Declaration, the Preferred Securities Guarantee, the Common Securities Guarantee and the terms of the Securities, the Sponsor shall not be: (i) personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders of the Securities, which shall be made solely from assets of the Trust; or (ii) required to pay to the Trust or to any Holder of Securities any deficit upon dissolution of the Trust or otherwise. (b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of the Securities, in their capacity as such, shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. (c) The Sponsor shall be liable for all fees and expenses related to the Trust and each offering of the Securities and shall be liable for all ongoing costs and expenses of the Trust, except the Trust's obligations under the Securities (such exception to include, without limitation, the returns described in Section 10.1(a)(i) and the deficit payment described in Section 10.1(a)(ii)). Section 10.2 Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such -124- 3 Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's gross negligence (or, in the case of the Property Trustee, except as otherwise set forth in Section 3.9) or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Securities might properly be paid. Section 10.3 Fiduciary Duty. (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the Trust or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than duties imposed on the Property Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person; (b) Unless otherwise expressly provided herein: (i) whenever a conflict of interest exists or arises between an Indemnified Person and any Covered Persons; or (ii) whenever this Declaration or any other agreement contemplated herein or therein provide that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any Holder of Securities, the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise. (c) Whenever in this Declaration an Indemnified Person is permitted or required to make a decision in its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty -125- or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person. Whenever in this Declaration an Indemnified Person is permitted or required to make a decision in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law. Section 10.4 Indemnification and Compensation. (a) To the fullest extent permitted by law, the Sponsor shall indemnify each Indemnified Person for, and hold each Indemnified Person harmless from and against any loss, damage or claim incurred by such Indemnified Person by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such person by this Declaration, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of gross negligence (or, in the case of the Property Trustee, except as otherwise set forth in Section 3.9) or willful misconduct with respect to such act or omissions. (b) Reasonable expenses (including reasonable legal fees and expenses) incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Sponsor prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified as authorized in Section 10.4(a). (c) The provisions of this Section 10.4 shall survive the termination of this Declaration or resignation or removal of any Trustee. (d) The Sponsor agrees to pay the Property Trustee and the Delaware Trustee from time to time such compensation for all services rendered by the Property Trustee and the Delaware Trustee hereunder as may be mutually agreed upon in writing by the Sponsor and the Property Trustee and the Delaware Trustee, as the case may be, and, except as otherwise expressly provided herein, to reimburse the Property Trustee and the Delaware Trustee upon its or their request for all reasonable expenses, disbursements and advances incurred or made by the Property Trustee or the Delaware Trustee, as the case may be, in accordance with the provisions of this Declaration, except any such expense, disbursement or advance as may be attributable to its or their negligence or bad faith. Section 10.5 Outside Businesses. Any Covered Person, the Sponsor, the Delaware Trustee (subject to Section 5.02(c)) and the Property Trustee (subject to Section 5.03(c)) may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the Holders of Securities shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or -126- 6 improper. No Covered Person, the Sponsor, the Delaware Trustee, or the Property Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. ARTICLE XI ACCOUNTING Section 11.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or such other year as is required by the Code. Section 11.2 Certain Accounting Matters. (a) At all times during the existence of the Trust, the Trust shall keep, or cause to be kept, full books of account, records and supporting documents, which shall reflect in reasonable detail, each transaction of the Trust. The books of account shall be maintained in accordance with generally accepted accounting principles, consistently applied. The books of account and the records of the Trust shall be examined by and reported upon, as of the end of each Fiscal Year, by a firm of independent certified public accountants selected by the Regular Trustees of the Trust. (b) The Trust shall cause to be duly prepared and delivered to each of the Holders of Securities, any annual United States federal income tax information statement, required by the Code, containing such information with regard to the Securities held by each Holder as is required by the Code and the Treasury Regulations. Notwithstanding any right under the Code to deliver any such statement at a later date, the Trust shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the Trust. (c) The Trust shall cause to be duly prepared and filed with the appropriate taxing authority, an annual United States federal income tax return, on a Form 1041 or such other form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Trust on behalf of the Trust with any state or local taxing authority. Section 11.3 Banking. The Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Trust; provided, however, that all payments of funds in respect of the Subordinated Notes held by the Property Trustee shall be made directly to the Property Trustee Account and no other funds of the Trust shall be deposited in the Property Trustee Account. The sole signatories for such accounts shall be designated by the Regular Trustees; provided, however, that the Property Trustee shall designate the signatories for the Property Trustee Account. -127- 7 Section 11.4 Withholding. The Trust shall comply with all withholding requirements under United States federal, state and local law. The Holders shall provide to the Trust such forms or certificates as are necessary to establish an exemption from withholding with respect to each Holder, and any representations and forms as shall reasonably be requested by the Trust to assist it in determining the extent of, and in fulfilling, its withholding obligations. The Trust shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Trust is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Holder, the amount withheld shall be deemed to be a distribution in the amount of the withholding to the Holder. In the event of any claimed over-withholding, Holders shall be limited to an action against the applicable jurisdiction. If the amount required to be withheld was not withheld from actual Distributions made, the Trust may reduce subsequent Distributions by the amount of such required withholding. ARTICLE XII AMENDMENTS AND MEETINGS Section 12.1 Amendments. (a) Except as otherwise provided in this Declaration or by any applicable terms of the Securities, this Declaration may be amended by, and only by, a written instrument approved and executed by the Regular Trustees (or, if there are more than two Regular Trustees, a majority of the Regular Trustees); provided, however, that: (i) no amendment shall be made, and any such purported amendment shall be void and ineffective, to the extent the result thereof would be to: (A) cause the Trust to fail to be classified for the purposes of United States federal income taxation as a grantor trust; (B) affect the powers or the rights of the Property Trustee or the Delaware Trustee without the written consent of the Property Trustee or the Delaware Trustee, as the case may be; or (C) cause the Trust to be deemed to be an Investment Company which is required to be registered under the Investment Company Act; (ii) at such time after the Trust has issued any Securities which remain outstanding, any amendment which would adversely affect the rights, privileges or preferences of any Holder of Securities may be effected only with such additional requirements as may be set forth in the terms of such Securities; -128- (iii) Section 9.1 (c) and this Section 12.1 shall not be amended without the consent of all of the Holders of the Securities; (iv) Article IV shall not be amended without the consent of the Holders of a Majority in liquidation amount of the Common Securities; and (v) the rights of the holders of the Common Securities under Article V to increase or decrease the number of, and appoint and remove Trustees shall not be amended without the consent of the Holders of a Majority in liquidation amount of the Common Securities. (b) Notwithstanding Section 12.1(a)(ii), this Declaration may be amended from time to time by the Holders of a Majority in liquidation amount of the Common Securities and the Property Trustee, without the consent of the Holders of the Preferred Securities, to: (i) cure any ambiguity; (ii) correct or supplement any provision in this Declaration that may be defective or inconsistent with any other provision or to make any other provisions with respect to matters or questions arising under this Declaration, which shall not be inconsistent with the other provisions of this Declaration; (iii) add to the covenants, restrictions or obligations of the Sponsor; (iv) to ensure the Trust's classification as a grantor trust for United States federal income tax purposes; and (v) to modify, eliminate or add to any provisions of this Declaration to such extent as shall be necessary to ensure that the Trust will not be required to register as an Investment Company under the Investment Company Act. (c) Subject to Section 12.1(a), this Declaration may be amended by the Holders of a Majority in liquidation amount of the Common Securities and the Property Trustee if: (i) the Holders of a Majority in liquidation amount of the Preferred Securities consent to such amendment; and (ii) the Regular Trustees have received an opinion of counsel experienced in such matters to the effect that such amendment or the exercise of any power granted to the Regular Trustees in accordance with such amendment will not affect the Trust's status as a grantor trust for United States federal income tax purposes or the Trust's exemption from status as an Investment Company under the Investment Company Act. (d) Any amendments of this Declaration shall become effective when notice thereof is given to the Holders of Securities. (e) The Regular Trustees shall promptly furnish to each of the Property Trustee and the Delaware Trustee a copy of each amendment to this Declaration. -129- Section 12.2 Meetings of the Holders of Securities; Action by Written Consent. (a) Meetings of the Holders of any class of Securities may be called at any time by the Regular Trustees (or as provided in the terms of the Securities) to consider and act on any matter on which Holders of such class of Securities are entitled to act under the terms of this Declaration, the terms of the Securities or the rules of any stock exchange on which the Preferred Securities are listed or admitted for trading. The Regular Trustees shall call a meeting of the Holders of such class of Holders, if directed to do so by the Holders of at least 25% in liquidation amount of the Securities of such class. Such direction shall be given by delivering to the Regular Trustees one or more calls in a writing stating that the signing Holders of Securities wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called. Any Holders of Securities calling a meeting shall specify in writing the Security Certificates held by the Holders of Securities exercising the right to call a meeting and only those Securities specified shall be counted for purposes of determining whether the required percentage set forth in the second sentence of this paragraph has been met. (b) Except to the extent otherwise provided in the terms of the Securities, the following provisions shall apply to meetings of Holders of Securities: (i) Notice of any such meeting shall be given to all of the Holders of Securities having a right to vote thereat at least 7 days and not more than 60 days before the date of such meeting. Whenever a vote, consent or approval of the Holders of Securities is permitted or required under this Declaration, the terms of the Securities or the rules of any stock exchange on which the Preferred Securities are listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders of Securities. Any action that may be taken at a meeting of the Holders of Securities may be taken without a meeting if a consent in writing setting forth the action so taken is signed by the Holders of Securities owning not less than the minimum amount of Securities in liquidation amount that would be necessary to authorize or take such action at a meeting at which all Holders of Securities having a right to vote thereon were present and voting. Prompt notice of the taking of action without a meeting shall be given to the Holders of Securities entitled to vote who have not consented in writing. The Regular Trustees may specify that any written ballot submitted to the Holders of Securities for the purpose of taking any action without a meeting shall be returned to the Trust within the time specified by the Regular Trustees. (ii) Each Holder of a Security may authorize any Person to act for it by proxy on all matters in which a Holder of Securities is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Holder of Securities executing it. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the General Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Trust were a Delaware corporation and the Holders of the Securities were stockholders of a Delaware corporation. (iii) Each meeting of the Holders of the Securities shall be conducted by the Regular Trustees or by such other Person that the Regular Trustees may designate. -130- (iv) Except to the extent that the Business Trust Act, the Trust Indenture Act, this Declaration, the terms of the Securities or the listing rules of any stock exchange on which the Preferred Securities are then listed or trading otherwise provides, the Regular Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders of Securities, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders of Securities, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote. ARTICLE XIII REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE Section 13.1 Representations and Warranties of the Property Trustee. The Trustee which acts as initial Property Trustee represents and warrants to the Trust and to the Sponsor at the date of this Declaration, and each Successor Property Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Property Trustee's acceptance of its appointment as Property Trustee that: (a) the Property Trustee is a national banking association with power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration; (b) this Declaration has been duly executed and delivered by the Property Trustee, and it constitutes a legal, valid and binding obligation of the Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); (c) the execution, delivery and performance of this Declaration by the Property Trustee does not conflict with or constitute a breach of the Articles of Organization or Bylaws of the Property Trustee; and (d) no consent, approval or authorization of, or registration with or notice to, any State or Federal banking authority is required for the execution, delivery or performance by the Property Trustee of this Declaration, other than the filing of the Certificate of Trust with the Delaware Secretary of State. Section 13.2 Representations and Warranties of the Delaware Trustee. The Trustee which acts as initial Delaware Trustee represents and warrants to the Trust and to the Sponsor at the date of this Declaration, and -131- each Successor Delaware Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee that: (a) the Delaware Trustee is a Delaware banking corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware; (b) the Delaware Trustee satisfies the requirements set forth in Section 5.1(c) and has the power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration and, if it is not a natural person, is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (c) this Declaration under Delaware law constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); (d) no consent, approval or authorization of, or registration with or notice to, any Delaware State or Federal banking authority is required for the execution, delivery or performance by the Delaware Trustee of this Declaration other than the filing of the Certificate of Trust with the Delaware Secretary of State; and (e) the execution, delivery and performance of this Declaration by the Delaware Trustee do not conflict with, or constitute a violation or breach of, the charter or bylaws of the Delaware Trustee. ARTICLE XIV MISCELLANEOUS Section 14.1 Notices. All notices provided for in this Declaration shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, postage prepaid, as follows: (a) if given to the Trust, in care of the Regular Trustees at the Trust's mailing address set forth below (or such other address as the Trust may give notice of to the Trustees and the Holders of the Securities): Bergen Capital Trust [ ] c/o Bergen Brunswig Corporation, 4000 Metropolitan Drive, Orange, California, 98680 Attention: Chief Legal Officer (telecopy number: 714-385-6815), with a copy (which shall not constitute notice) to Peter H. Ehrenberg, Esq., Lowenstein Sandler PC, 65 Livingston Avenue, Roseland, New Jersey 07068 (telecopy number: 973-597-2400). -132- (b) if given to the Delaware Trustee, at the mailing address set forth below (or such other address as the Delaware Trustee may give notice of to the Regular Trustees, the Property Trustee and the Holders of the Securities): Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801 Attn: Corporate Trust Administration (telecopy number: 302-428-3390) (c) if given to the Property Trustee, at the mailing address set forth below (or such other address as the Property Trustee may give notice of to the Regular Trustees, the Delaware Trustee and the Holders of the Securities): Chase Manhattan Bank and Trust Company, National Association, 101 California Street, Suite 2725, San Francisco, California 94111 Attention: Corporate Trust Administration (telecopy number:415-693-8850) (d) if given to the Holder of the Common Securities, at the mailing address of the Sponsor set forth below (or such other address as the Holder of the Common Securities may give notice of to the Trustees and the Trust): Bergen Brunswig Corporation, 4000 Metropolitan Drive, Orange, California, 98680 Attention: Chief Legal Officer, with a copy (which shall not constitute notice) to Peter H. Ehrenberg, Esq., Lowenstein Sandler PC, 65 Livingston Avenue, Roseland, New Jersey 07068. (e) if given to any other Holder, at the address set forth on the books and records of the Trust. (f) All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. Section 14.2 Governing Law. This Declaration and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws. Section 14.3 Intention of the Parties. It is the intention of the parties hereto that the Trust be classified for United States federal income tax purposes as a grantor trust. The provisions of this Declaration shall be interpreted to further this intention of the parties. -133- Section 14.4 Headings. Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof. Section 14.5 Successors and Assigns. Whenever in this Declaration any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether or not so expressed. Section 14.6 Partial Enforceability. If any provision of this Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. Section 14.7 Counterparts. This Declaration may contain more than one counterpart of the signature page and this Declaration may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. -134- IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. ---------------------- Donald R. Roden, as Regular Trustee ---------------------- Neil F. Dimick, as Regular Trustee ---------------------- Milan A. Sawdei, as Regular Trustee CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee By:___________________________ Name: Title: CHASE MANHATTAN BANK AND TRUST COMPANY, National Association, as Property Trustee By:___________________________ Name: Title: BERGEN BRUNSWIG CORPORATION, as Sponsor By:___________________________ Name: Milan A. Sawdei Title: Executive Vice President -135- EXHIBIT A TERMS OF [ ]% PREFERRED SECURITIES [ ]% COMMON SECURITIES Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust, dated as of [ ],[] (as amended from time to time, the "Declaration"), the designation, rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities and the Common Securities are set out below (each capitalized term used but not defined herein has the meaning set forth in the Declaration or, if not defined in such Declaration, as defined in the Prospectus referred to below): 1. Designation and Number. a. Preferred Securities. [ ] Preferred Securities [(including [ ] Preferred Securities of the Trust sold pursuant to an overallotment option provided for in the Purchase Agreement)] of the Trust with an aggregate liquidation amount with respect to the assets of the Trust of [ ] Dollars ($[ ]) [(plus up to an additional [ ] Preferred Securities with an aggregate liquidation amount with the respect to the assets of the Trust of [ ] Dollars ($[ ]) solely to cover overallotments, as provided for in the Purchase Agreement (the "Additional Preferred Securities")),] and a liquidation amount with respect to the assets of the Trust of $[ ] per Preferred Security, are hereby designated for the purposes of identification only as "[ ]% Preferred Securities" (the "Preferred Securities"). The Preferred Security Certificates evidencing the Preferred Securities shall be substantially in the form attached hereto as Annex I, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock exchange on which the Preferred Securities are listed. b. Common Securities. [ ] Common Securities [(including [ ] Common Securities of the Trust sold pursuant to an overallotment option)] of the Trust with an aggregate liquidation amount with respect to the assets of the Trust of [ ] Dollars ($[ ]) [(plus up to an additional [ ] Common Securities of the Trust with an aggregate liquidation amount with respect to the assets of the Trust of [ ] Dollars ($[ ])] to meet capital requirements of the Trust in the event of an issuance of Additional Preferred Securities), and a liquidation amount with respect to the assets of the Trust of $[ ] per Common Security, are hereby designated for the purposes of identification only as "[ ]% Common Securities" (the "Common Securities"). The Common Security Certificates evidencing the Common Securities shall be substantially in the form attached hereto as Annex II, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice. 2. Distributions. a. Periodic Distributions payable on each Security will be fixed at a rate per annum of [ ]% (the "Coupon Rate") of the stated liquidation amount of $[ ] per Security, such rate being the rate of interest payable on the Subordinated Notes to be held by the Property Trustee. Distributions in arrears for more than one quarterly period will bear interest thereon at the Coupon Rate (to the extent permitted by applicable law). The term "Distributions" as used in these terms includes such periodic cash distributions and any such interest payable unless otherwise stated. A Distribution is payable only to the extent -136- that payments are made in respect of the Subordinated Notes held by the Property Trustee. The amount of Distributions payable for any period will be computed for any full quarterly Distribution period on the basis of a 360-day year of twelve 30-day months, and for any period shorter than a full quarterly Distribution period for which Distributions are computed, Distributions will be computed on the basis of the actual number of days elapsed in such a 30-day month. b. Distributions on the Securities will be cumulative, will accrue from [ ], [ ] and will be payable quarterly in arrears, on [ ], [ ], [ ] and [ ] of each year, commencing on [ ], [ ], except as otherwise described below. The Subordinated Notes Issuer has the right under the Indenture to defer payments of interest by extending the interest payment period from time to time on the Subordinated Notes for a period not exceeding 20 consecutive quarterly periods (each, an "Extension Period") but not beyond the maturity date of the Subordinated Notes and, as a consequence of such extension, Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon Rate during any such Extension Period. Prior to the termination of any such Extension Period, the Subordinated Notes Issuer may further extend such Extension Period; provided that such Extension Period together with all such previous and further extensions thereof may not exceed 20 consecutive quarterly periods. Payments of accrued Distributions will be payable to Holders as they appear on the books and records of the Trust on the first record date after the end of the Extension Period. Upon the termination of any Extension Period and the payment of all amounts then due, the Subordinated Notes Issuer may commence a new Extension Period, subject to the above requirements. c. Distributions on the Securities will be payable to the Holders thereof as they appear on the books and records of the Trust on the relevant record dates. While the Preferred Securities remain in book entry only form, the relevant record dates shall be one Business Day prior to the relevant payment dates which payment dates correspond to the interest payment dates on the Subordinated Notes. Subject to any applicable laws and regulations and the provisions of the Declaration, each such payment in respect of the Preferred Securities will be made as described under the heading ["Certain Terms of the Preferred Securities-- Book Entry-Only Issuance -- The Depository Trust Company"] in the Prospectus Supplement dated [ ], [ ] (the "Prospectus Supplement") to the Prospectus dated [ ], 199[ ] (as so supplemented, the "Prospectus") of the Trust included in the Registration Statement on Form S-3 of the Sponsor, the Trust and certain other business trusts. The relevant record dates for the Common Securities shall be the same record dates as for the Preferred Securities. If the Preferred Securities shall not continue to remain in book entry only form, the relevant record dates for the Preferred Securities shall conform to the rules of any securities exchange on which the securities are listed and, if none, shall be selected by the Regular Trustees, which dates shall be at least one Business Day but less than 60 Business Days before the relevant payment dates, which payment dates correspond to the interest payment dates on the Subordinated Notes. Distributions payable on any Securities that are not punctually paid on any Distribution payment date, as a result of the Subordinated Notes Issuer having failed to make a payment under the Subordinated Notes, will cease to be payable to the Person in whose name such Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Securities are registered on the special record date or other specified date determined in accordance with the Indenture. If any date on which Distributions are payable on the Securities is not a Business Day, then payment of the Distribution payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such -137- Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date. d. In the event that there is any money or other property held by or for the Trust that is not accounted for hereunder, such property shall be distributed Pro Rata (as defined herein) among the Holders of the Securities. 3. Liquidation Distribution Upon Dissolution. In the event of any voluntary or involuntary dissolution, winding-up or termination of the Trust, the Holders of the Securities on the date of the dissolution, winding-up or termination, as the case may be, will be entitled to receive out of the assets of the Trust available for distribution to Holders of Securities, after paying or making reasonable provision to pay all claims and obligations of the Trust in accordance with Section 3808(e) of the Business Trust Act, an amount equal to the aggregate of the stated liquidation amount of $[ ] per Security plus accrued and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"), unless, in connection with such dissolution, winding-up or termination, Subordinated Notes in an aggregate principal amount equal to the aggregate stated liquidation amount of such Securities, with an interest rate equal to the Coupon Rate of, and bearing accrued and unpaid interest in an amount equal to the accrued and unpaid Distributions on, such Securities, shall be distributed on a Pro Rata basis to the Holders of the Securities in exchange for such Securities, after paying or making reasonable provision to pay all claims and obligations of the Trust in accordance with Section 3808(e) of the Business Trust Act. If, upon any such dissolution, the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the amounts payable directly by the Trust on the Securities shall be paid on a Pro Rata basis. 4. Redemption and Distribution. a. Upon the repayment of the Subordinated Notes in whole or in part, whether at maturity or upon redemption, the proceeds from such repayment or payment shall be simultaneously applied to redeem Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Subordinated Notes so repaid or redeemed, at the redemption price for the Subordinated Notes, payable in cash (the "Redemption Price"). Holders will be given not less than 30 nor more than 60 days notice of such redemption. b. If fewer than all the outstanding Securities are to be so redeemed, the Common Securities and the Preferred Securities will be redeemed Pro Rata and the Preferred Securities to be redeemed will be as described in Paragraph 4(h)(ii) below. c. The Subordinated Notes are redeemable, in whole or in part, at the option of the Subordinated Notes Issuer, on or after [ ], 20[ ], at a redemption price equal to [100%] of the principal amount per Subordinated Notes, plus, in each case, accrued and unpaid interest thereon at the date of the redemption for the Subordinated Notes. d. If, at any time, a Tax Event or an Investment Company Event (each as defined below, and each a "Special Event") shall occur and be continuing, the Subordinated Notes Issuer shall have the right, upon not less than 30 nor more -138- than 60 days notice, to redeem the Subordinated Notes in whole or in part, for cash within 90 days following the occurrence of such Special Event, at a redemption price equal to [100%] of the principal amount to be redeemed plus any accrued and unpaid interest thereon to the date of such redemption and, following such redemption, Securities with an aggregate liquidation amount equal to the aggregate principal amount of the Subordinated Notes so redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata basis in accordance with paragraph 8 hereof. The Common Securities will be redeemed Pro Rata with the Preferred Securities, except that if an Event of Default has occurred and is continuing, the Preferred Securities will have priority over the Common Securities with respect to payment of the Redemption Price. e. The following terms used herein shall be defined as follows: ..................(i) "Investment Company Event" means that the Trust shall have received an opinion of counsel experienced in practice under the Investment Company Act that, as a result of the occurrence of a change in law or regulation or a change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority (a "Change in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or will be considered an Investment Company which is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after the date of the Prospectus Supplement. .........(ii) "Tax Event" means that the Trust shall have received an opinion of counsel experienced in such matters to the effect that on or after the date of the Prospectus Supplement, as a result of (a) any amendment to, or change (including any announced proposed change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority therefore or therein, or (b) any amendment to, or change in, an interpretation or application of any such laws or regulations by any legislative body, court, governmental agency or regulatory authority, which amendment or change is enacted, promulgated, issued, proposed or announced or which interpretation or pronouncement is issued, proposed or announced or which action is taken, in each case on or after the date of the Prospectus Supplement, there is more than an insubstantial risk that (i) the Trust is or will be within 90 days of the date of such opinion, subject to United States federal income tax with respect to interest accrued or received on the Subordinated Notes, (ii) the Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of taxes, duties or other governmental charges, or (iii) interest payable by the Subordinated Note Issuer to the Trust on the Subordinated Notes is not, or within 90 days of the date of such opinion will not be, deductible, in whole or in part, by the Subordinated Note Issuer for United States federal income tax purposes. f. The Trust may not redeem fewer than all the outstanding Securities unless all accrued and unpaid Distributions have been paid on all Securities for all quarterly Distribution periods terminating on or before the date of redemption. g. In the event that the Sponsor makes the election referred to in Section 8.1(a)(v) of the Declaration, the Regular Trustees shall dissolve the Trust and, after paying or making reasonable provision to pay all claims and obligations of the Trust in accordance with Section 3808(e) of the Business Trust Act, cause Subordinated Notes, held by the Property Trustee, having an aggregate stated liquidation amount of, with an interest rate identical to the Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid -139- Distributions on and having the same record date for payment, as the Securities, to be distributed to the Holders of the Securities in liquidation of such Holders' interests in the Trust on a Pro Rata basis in accordance with paragraph 8 hereof. On and from the date fixed by the Regular Trustees for any distribution of Subordinated Notes and dissolution of the Trust: (i) the Securities will no longer be deemed to be outstanding, (ii) if the Preferred Securities are held in book entry form, The Depository Trust Company (the "Depository") or its nominee (or any successor Clearing Agency or its nominee), as the record Holder of the Preferred Securities, will receive a registered global certificate or certificates representing the Subordinated Notes to be delivered upon such distribution and (iii) any certificates representing Securities, except for certificates representing Preferred Securities held by the Depository or its nominee (or any successor Clearing Agency or its nominee), will be deemed to represent beneficial interests in the Subordinated Notes having an aggregate principal amount equal to the aggregate stated liquidation amount of, with an interest rate identical to the Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid Distributions on, such Securities until such certificates are presented to the Subordinated Notes Issuer or its agent for transfer or reissue. If the Subordinated Notes are distributed to Holders of the Securities and the Preferred Securities were listed on the New York Stock Exchange or any other exchange immediately prior to the distribution of the distribution of the Subordinated Notes, pursuant to the terms of the Indenture, the Subordinated Notes Issuer will use its best efforts to have the Subordinated Notes listed on the New York Stock Exchange or on such other exchange as the Preferred Securities were listed immediately prior to the distribution of the Subordinated Notes. h. Redemption or Distribution Procedures. (i) Notice of any redemption of, or notice of distribution of, Subordinated Notes in exchange for the Securities (a "Redemption/Distribution Notice") will be given by the Trust by mail to each Holder of Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date fixed for redemption or exchange thereof which, in the case of a redemption, will be the date fixed for redemption of the Subordinated Notes. For purposes of the calculation of the date of redemption or exchange and the dates on which notices are given pursuant to this paragraph 4(h)(i), a Redemption/Distribution Notice shall be deemed to be given on the day such notice is first mailed, by first-class mail, postage prepaid, to Holders of Securities. Each Redemption/Distribution Notice shall be addressed to the Holders of Securities at the address of each such Holder appearing in the books and records of the Trust. No defect in the Redemption/Distribution Notice or in the mailing of either thereof with respect to any Holder shall affect the validity of the redemption or exchange proceedings with respect to any other Holder. (ii) In the event that fewer than all the outstanding Securities are to be redeemed, the Securities to be redeemed will be redeemed Pro Rata from each Holder of Securities, it being understood that, in respect of Preferred Securities registered in the name of and held of record by the Depository (or any successor Clearing Agency) or any other nominee, the distribution of the proceeds of such redemption will be made to each Clearing Agency Participant (or person on whose behalf such nominee holds such securities) in accordance with the procedures applied by such agency or nominee. (iii) If Securities are to be redeemed and the Trust gives a Redemption/Distribution Notice which notice may only be issued if the -140- Subordinated Notes are redeemed as set out in this paragraph 4 (which notice will be irrevocable) then (A) while the Preferred Securities are in book entry only form, with respect to the Preferred Securities, by 12:00 noon, New York City time, on the redemption date, provided that the Subordinated Notes Issuer has paid the Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the Subordinated Notes, the Property Trustee will deposit irrevocably with the Depository (or successor Clearing Agency) funds sufficient to pay the Redemption Price with respect to the Preferred Securities and will give the Depository irrevocable instructions and authority to pay the Redemption Price to the Holders of the Preferred Securities, and (B) if the Preferred Securities are issued in definitive form, with respect to the Preferred Securities, and with respect to the Common Securities, provided that the Subordinated Notes Issuer has paid the Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the Subordinated Notes, the Property Trustee will pay the Redemption Price to the Holders of such Securities by check mailed to the address of the relevant Holder appearing on the books and records of the Trust on the redemption date. If a Redemption/Distribution Notice shall have been given and funds deposited as required, if applicable, then immediately prior to the close of business on the date of such deposit, or on the redemption date, as applicable, Distributions will cease to accrue on the Securities so called for redemption and all rights of Holders of such Securities so called for redemption will cease, except the right of the Holders of such Securities to receive the Redemption Price, but without interest on such Redemption Price. Neither the Regular Trustees nor the Trust shall be required to register or cause to be registered the transfer of any Securities which have been so called for redemption. If any date fixed for redemption of Securities is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date fixed for redemption. If payment of the Redemption Price in respect of Securities is improperly withheld or refused and not paid either by the Property Trustee or by the Sponsor as guarantor pursuant to the relevant Securities Guarantee, Distributions on such Securities will continue to accrue, from the original redemption date to the actual date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating the Redemption Price. (iv) Redemption/Distribution Notices shall be sent by the Regular Trustees on behalf of the Trust to (A) in respect of the Preferred Securities, the Depository or its nominee (or any successor Clearing Agency or its nominee) if the Global Certificates have been issued or if Definitive Preferred Security Certificates have been issued, to the Holder thereof, and (B) in respect of the Common Securities, to the Holder thereof. (v) Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws), provided the acquiror is not the Holder of the Common Securities or the obligor under the Indenture, the Sponsor or any of its subsidiaries may at any time and from time to time purchase outstanding Preferred Securities by tender, in the open market or by private agreement. 5. Voting Rights Applicable to Preferred Securities. a. Except as provided under paragraphs 5(b) and 7 and as otherwise required by law and the Declaration, the Holders of the Preferred Securities will have no voting rights. -141- b. Subject to the requirements of the third to last sentence of this paragraph, the Holders of a Majority in liquidation amount of the Preferred Securities, voting separately as a class, may direct the time, method, and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under the Declaration, including (i) directing the time, method, and place of conducting any proceeding for any remedy available to the Subordinated Notes Trustee, or exercising any trust or power conferred on the Subordinated Notes Trustee with respect to the Subordinated Notes, (ii) waiving any past default and its consequences that is waivable under Section 5.13 of the Indenture, (iii) exercising any right to rescind or annul a declaration that the principal of all the Subordinated Notes shall be due and payable or (iv) consenting to any amendment, modification or termination of the Indenture or the Subordinated Notes where such consent shall be required, provided, however, that where a waiver or consent under the Indenture would require the consent or act of the Holders of greater than a majority in principal amount of Subordinated Notes affected thereby (a "Super Majority"), the Property Trustee may only give such consent or take such action at the direction of the Holders of at least the proportion in liquidation amount of the Preferred Securities which the relevant Super Majority represents of the aggregate principal amount of the Subordinated Notes outstanding. The Property Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Preferred Securities. Other than with respect to directing the time, method and place of conducting any remedy available to the Property Trustee or the Subordinated Notes Trustee as set forth above, the Property Trustee shall not take any action in accordance with the directions of the Holders of the Preferred Securities under this paragraph unless the Property Trustee has obtained an opinion of tax counsel to the effect that for the purposes of United States federal income tax the Trust will not be classified as other than a grantor trust on account of such action. If the Property Trustee fails to enforce its rights under the Declaration, any Holder of Preferred Securities may, to the extent permitted by law, institute a legal proceeding directly against any Person to enforce the Property Trustee's rights under the Declaration, without first instituting a legal proceeding against the Property Trustee or any other Person. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing with respect to the Preferred Securities and such event is attributable to the failure of the Subordinated Notes Issuer to pay interest, premium, if any, or principal on the Subordinated Notes on the date such interest, premium, if any, or principal is otherwise payable (or in the case of redemption, on the redemption date), then a holder of Preferred Securities may institute a Direct Action for enforcement of payment to such holder of the principal of, premium, if any, or interest on, Subordinated Notes having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder on or after the respective due date specified in the Subordinated Notes. Notwithstanding any payments made to such Holder of Preferred Securities by the Subordinated Notes Issuer in connection with a Direct Action, the Subordinated Notes Issuer shall remain obligated to pay the principal of, premium, if any, and interest on the Subordinated Notes held by the Trust or the Property Trustee, and the Subordinated Notes Issuer shall be subrogated to the rights of the Holder of such Preferred Securities with respect to payments on the Preferred Securities to the extent of any payment made by the Subordinated Notes Issuer to such Holder in any Direct Action. Except as provided in the preceding sentences, the Holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Subordinated Notes. c. Any approval or direction of Holders of Preferred Securities may be given at a separate meeting of Holders of Preferred Securities convened for such purpose, at a meeting of all of the Holders of Securities in the Trust or -142- pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Preferred Securities. Each such notice will include a statement setting forth (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought and (iii) instructions for the delivery of proxies or consents. d. No vote or consent of the Holders of the Preferred Securities will be required for the Trust to redeem and cancel Preferred Securities or to distribute the Subordinated Notes in accordance with the Declaration and the terms of the Securities. e. Notwithstanding that Holders of Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Preferred Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if they were not outstanding. 6. Voting Rights With Respect to Common Securities. a. Except as provided under paragraphs 6(b), 6(c) and 7 and as otherwise required by law and the Declaration, the Holders of the Common Securities will have no voting rights. b. The Holders of the Common Securities are entitled, in accordance with Article V of the Declaration, to vote to appoint, remove or replace any Trustee or to increase or decrease the number of Trustees. c. Subject to Section 2.6 of the Declaration and only after all Events of Default with respect to the Preferred Securities have been cured, waived or otherwise eliminated and subject to the requirements of the second to last sentence of this paragraph, the Holders of a Majority in liquidation amount of the Common Securities, voting separately as a class, may direct the time, method, and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under the Declaration, including (i) directing the time, method, place of conducting any proceeding for any remedy available to the Subordinated Notes Trustee, or exercising any trust or power conferred on the Subordinated Notes Trustee with respect to the Subordinated Notes, (ii) waiving any past default and its consequences that is waivable under Section 513 of the Indenture, or (iii) exercising any right to rescind or annul a declaration that the principal of all the Subordinated Notes shall be due and payable, provided, however, that where a consent or action under the Indenture would require the consent or act of the Holders of greater than a majority in principal amount of Subordinated Notes affected thereby (a "Super Majority"), the Property Trustee may only give such consent or take such action at the direction of the Holders of at least the proportion in liquidation amount of the Common Securities which the relevant Super Majority represents of the aggregate principal amount of the Subordinated Notes outstanding. Pursuant to this paragraph 6(c), the Property Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Common Securities. Other than with respect to directing the time, method and place of conducting any remedy available to the Property Trustee or the Subordinated Notes Trustee as set forth above, the Property Trustee shall not take any action in accordance with the directions of the Holders of the Common Securities under this paragraph unless the Property Trustee has obtained an -143- opinion of tax counsel to the effect that for the purposes of United States federal income tax, the Trust will not be classified as other than a grantor trust on account of such action. If the Property Trustee fails to enforce its rights under the Declaration, any Holder of Common Securities may, to the extent permitted by law, institute a legal proceeding directly against any Person to enforce the Property Trustee's rights under the Declaration, without first instituting a legal proceeding against the Property Trustee or any other Person. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing with respect to the Common Securities and such event is attributable to the failure of the Subordinated Notes Issuer to pay interest or principal on the Subordinated Notes on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a holder of Common Securities may institute a proceeding for enforcement of payment to such holder of the principal of, or interest on, Subordinated Notes having a principal amount equal to the aggregate liquidation amount of the Common Securities of such holder on or after the respective due date specified in the Subordinated Notes. d. Any approval or direction of Holders of Common Securities may be given at a separate meeting of Holders of Common Securities convened for such purpose, at a meeting of all of the Holders of Securities in the Trust or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Common Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Common Securities. Each such notice will include a statement setting forth (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought and (iii) instructions for the delivery of proxies or consents. e. No vote or consent of the Holders of the Common Securities will be required for the Trust to redeem and cancel Common Securities or to distribute the Subordinated Notes in accordance with the Declaration and the terms of the Securities. 7. Amendments to Declaration and Indenture. a. In addition to any requirements under Section 12.1 of the Declaration, if any proposed amendment to the Declaration provides for, or the Regular Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the Securities, whether by way of amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up or termination of the Trust, other than as described in Section 8.1 or Section 3.14 of the Declaration, then the Holders of outstanding Securities as a class, will be entitled to vote on such amendment or proposal (but not on any other amendment or proposal) and such amendment or proposal shall not be effective except with the approval of the Holders of at least a Majority in liquidation amount of the Securities, voting together as a single class; provided, however, that if any amendment or proposal referred to in clause (i) above would adversely affect only the Preferred Securities or the Common Securities, then only the affected class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of a Majority in liquidation amount of such class of Securities. b. In the event the consent of the Property Trustee as the holder of the Subordinated Notes is required under the Indenture with respect to any amendment, modification or termination of the Indenture or the Subordinated Notes, the Property Trustee shall request the direction of the Holders of the -144- Securities with respect to such amendment, modification or termination and shall vote with respect to such amendment, modification or termination as directed by a Majority in liquidation amount of the Securities voting together as a single class; provided, however, that where a consent under the Indenture would require the consent of the Holders of greater than a majority in aggregate principal amount of the Subordinated Notes (a "Super Majority"), the Property Trustee may only give such consent at the direction of the Holders of at least the proportion in liquidation amount of the Securities which the relevant Super Majority represents of the aggregate principal amount of the Subordinated Notes outstanding; provided, further, that the Property Trustee shall not take any action in accordance with the directions of the Holders of the Securities under this paragraph 7(b) unless the Property Trustee has been furnished an opinion of tax counsel to the effect that for the purposes of United States federal income tax, the Trust will not be classified as other than a grantor trust on account of such action. 8. Pro Rata. A reference in these terms of the Securities to any payment, distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder of Securities according to the aggregate liquidation amount of the Securities held by the relevant Holder in relation to the aggregate liquidation amount of all Securities outstanding unless, in relation to a payment, an Event of Default under the Indenture has occurred and is continuing, in which case any funds available to make such payment shall be paid first to each Holder of the Preferred Securities pro rata according to the aggregate liquidation amount of Preferred Securities held by the relevant Holder relative to the aggregate liquidation amount of all Preferred Securities outstanding, and only after satisfaction of all amounts owed to the Holders of the Preferred Securities, to each Holder of Common Securities pro rata according to the aggregate liquidation amount of Common Securities held by the relevant Holder relative to the aggregate liquidation amount of all Common Securities outstanding. 9. Ranking. The Preferred Securities rank pari passu and payment thereon shall be made Pro Rata with the Common Securities except that, where an Event of Default occurs and is continuing under the Indenture in respect of the Subordinated Notes held by the Property Trustee, the rights of Holders of the Common Securities to payment in respect of Distributions and payments upon liquidation, redemption and otherwise are subordinated to the rights to payment of the Holders of the Preferred Securities. 10. Acceptance of Securities Guarantee and Indenture. Each Holder of Preferred Securities and Common Securities, by the acceptance thereof, agrees to the provisions of the Preferred Securities Guarantee and the Common Securities Guarantee, respectively, including the subordination provisions therein and to the provisions of the Indenture. 11. No Preemptive Rights. The Holders of the Securities shall have no preemptive rights to subscribe for any additional Securities. -145- 12. Miscellaneous. These terms constitute a part of the Declaration. The Sponsor will provide a copy of the Declaration, the Preferred Securities Guarantee and the Indenture to a Holder without charge on written request to the Trust at its principal place of business. [The following language would be added if the Preferred Securities are convertible into the Sponsor's Class A Common Stock: In order to convert all or a portion of the Subordinated Notes, the holder thereof shall deliver to the Conversion Agent (as defined under the Indenture) an irrevocable Notice of Conversion setting forth the principal amount of Subordinated Notes to be converted, together with the name or names, if other than the holder, in which the shares of Common Stock should be issued upon conversion and, if such Subordinated Notes are definitive Subordinated Notes, surrender to the Conversion Agent the Subordinated Notes to be converted, duly endorsed or assigned to the Subordinated Notes Issuer or in blank. A Holder of Preferred Securities may exercise its right under the Declaration to convert such Preferred Securities into Common Stock by delivering to the Conversion Agent an irrevocable Notice of Conversion setting forth the information called for by the preceding sentence and directing the Conversion Agent (i) to exchange such Preferred Security for a portion of the Subordinated Notes held by the Trust (at an exchange rate of [$__] principal amount of Subordinated Notes for each Preferred Security) and (ii) to immediately convert such Subordinated Notes, on behalf of such Holder, into Common Stock of the Subordinated Notes Issuer pursuant to the Indenture and, if such Preferred Securities are in definitive form, surrendering such Preferred Securities, duly endorsed or assigned to the Subordinated Notes Issuer or in blank. So long as any Preferred Securities are outstanding, the Trust shall not convert any Subordinated Notes except pursuant to a Notice of Conversion delivered to the Conversion Agent by a holder of Preferred Securities.] -146- Annex I [IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT This Preferred Security is a Global Certificate within the meaning of the Declaration hereinafter referred to and is registered in the name of The Depository Trust Company (the "Depository") or a nominee of the Depository. This Preferred Security is exchangeable for Preferred Securities registered in the name of a person other than the Depository or its nominee only in the limited circumstances described in the Declaration and no transfer of this Preferred Security (other than a transfer of this Preferred Security as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository) may be registered except in limited circumstances. Unless this Preferred Security is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York) to the Trust or its agent for registration of transfer, exchange or payment, and any Preferred Security issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.] Certificate Number _______ Number of Preferred Securities _______ CUSIP NO.__________ Certificate Evidencing Preferred Securities of BERGEN CAPITAL TRUST [ ] [ ]% Preferred Securities (liquidation amount $[ ] per Preferred Security) BERGEN CAPITAL TRUST [ ], a business trust formed under the laws of the State of Delaware (the "Trust"), hereby certifies that CEDE & CO. (the "Holder") is the registered owner of preferred securities of the Trust representing undivided beneficial interests in the assets of the Trust designated the [ ]% Preferred Securities (liquidation amount $[ ] per Preferred Security) (the "Preferred Securities"). The transfer of Preferred Securities is registrable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for registration of transfer. The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Declaration of Trust of the Trust dated as of [ ], [ ], as the same may be amended from time to time (the "Declaration") including the designation of the terms of the Preferred Securities as set forth in Exhibit A to the Declaration. Capitalized terms used herein but not defined shall have the respective meanings given them in the Declaration. The Holder is entitled to the benefits of the Preferred Securities Guarantee to the extent provided therein. The Sponsor will provide a copy of the Declaration, the Preferred Securities Guarantee and the Indenture to a Holder without charge upon written request to the Trust at its principal place of business. -147- Upon receipt of this certificate, the Holder is bound by the Declaration and is entitled to the benefits thereunder. By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Subordinated Notes as indebtedness and the Preferred Securities as evidence of indirect beneficial ownership in the Subordinated Notes. IN WITNESS WHEREOF, the Regular Trustees of the Trust have duly executed this certificate. Dated:____________ ________________________ as Trustee ________________________ as Trustee ________________________ as Trustee CERTIFICATE OF AUTHENTICATION This is one of the Securities issued under the Amended and Restated Declaration of Trust described herein. CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee By: __________________________ Name: Title: -148- ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred Security Certificate to: (Insert assignee's social security or tax identification number) (Insert address and zip code of assignee) and irrevocably appoints agent to transfer this Preferred Security Certificate on the books of the Trust. The agent may substitute another to act for him or her. Date: Signature: (Sign exactly as your name appears on the other side of this Preferred Security Certificate) Signature Guarantor: A-14 -149- Annex II TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SET FORTH IN THE DECLARATION REFERRED TO BELOW THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE REGISTERED UNDER OR ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT. THE TRANSFER OF THE SECURITY EVIDENCED HEREBY IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO BELOW. Certificate Number _______ Number of Common Securities _______ Certificate Evidencing Common Securities of BERGEN CAPITAL TRUST [ ] Common Securities. (liquidation amount $[ ] per Common Security) BERGEN CAPITAL TRUST [ ], a business trust formed under the laws of the State of Delaware (the "Trust"), hereby certifies that Bergen Brunswig Corporation (the "Holder") is the registered owner of common securities of the Trust representing undivided beneficial interests in the assets of the Trust designated the [ ]% Common Securities (liquidation amount $[ ] per Common Security) (the "Common Securities"). The transfer of Common Securities is registerable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for registration of transfer. The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Declaration of Trust of the Trust dated as of [ ], [ ], as the same may be amended from time to time (the "Declaration"), including the designation of the terms of the Common Securities as set forth in Exhibit A to the Declaration. Capitalized terms used herein but not defined shall have the respective meanings given them in the Declaration. The Holder is entitled to the benefits of the Common Securities Guarantee to the extent provided therein. The Sponsor will provide a copy of the Declaration, the Common Securities Guarantee and the Indenture to a Holder without charge upon written request to the Trust at its principal place of business. Upon receipt of this certificate, the Holder is bound by the Declaration and is entitled to the benefits thereunder. By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Subordinated Notes as indebtedness and the Common Securities as evidence of indirect beneficial ownership in the Subordinated Notes. -150- IN WITNESS WHEREOF, the Trust has executed this certificate this day of [ ], [ ]. ________________________ as Trustee ________________________ as Trustee ________________________ as Trustee -151- ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security Certificate to: (Insert assignee's social security or tax identification number) (Insert address and zip code of assignee) and irrevocably appoints agent to transfer this Common Security Certificate on the books of the Trust. The agent may substitute another to act for him or her. Date: Signature: (Sign exactly as your name appears on the other side of this Common Security Certificate) Signature Guarantor: -152- EXHIBIT B PURCHASE AGREEMENT -153- EXHIBIT C SUBORDINATED NOTES CERTIFICATE -154- EX-4.8 9 PREFERRED SECURITIES GUARANTEE AGREMEENT EXHIBIT 4.8 BERGEN BRUNSWIG CORPORATION AND CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE PREFERRED SECURITIES GUARANTEE AGREEMENT Dated as of [ ], [ ] -155- Table of Contents Page ARTICLE I. DEFINITIONS AND INTERPRETATION Section 1.01. Definitions and Interpretation............................... ARTICLE II. TRUST INDENTURE ACT Section 2.01. Trust Indenture Act; Application............................. Section 2.02. Lists of Holders of Securities............................... Section 2.03. Reports by Preferred Guarantee Trustee....................... Section 2.04. Periodic Reports to Preferred Guarantee Trustee.............. Section 2.05. Evidence of Compliance with Conditions Precedent............. Section 2.06. Events of Default; Waiver.................................... Section 2.07. Event of Default; Notice..................................... Section 2.08. Conflicting Interests........................................ ........................................................................... ARTICLE III. POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE Section 3.01. Powers and Duties of Preferred Guarantee Trustee............. Section 3.02. Certain Rights of Preferred Guarantee Trustee................ Section 3.03. Not Responsible for Recitals or Issuance of Guarantee........ ARTICLE IV. PREFERRED GUARANTEE TRUSTEE Section 4.01. Preferred Guarantee Trustee; Eligibility..................... Section 4.02. Appointment, Removal and Resignation of Preferred Guarantee Trustee.................................................. ARTICLE V. GUARANTEE Section 5.01. Guarantee.................................................... Section 5.02. Waiver of Notice and Demand.................................. Section 5.03. Obligations Not Affected..................................... Section 5.04. Rights of Holders............................................ Section 5.05. Guarantee of Payment......................................... Section 5.06. Subrogation.................................................. Section 5.07. Independent Obligations...................................... -156- ARTICLE VI. LIMITATION OF TRANSACTIONS; RANKING Section 6.01. Limitation of Transactions................................... Section 6.02. Ranking...................................................... ARTICLE VII. TERMINATION Section 7.01. Termination.................................................. ARTICLE VIII. INDEMNIFICATION Section 8.01. Exculpation.................................................. Section 8.02. Indemnification.............................................. ARTICLE IX. MISCELLANEOUS Section 9.01. Successors and Assigns....................................... Section 9.02. Amendments................................................... Section 9.03. Notices...................................................... Section 9.04. Benefit...................................................... Section 9.05. Governing Law................................................ -157- PREFERRED SECURITIES GUARANTEE AGREEMENT This PREFERRED SECURITIES GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of [ ], [ ], is executed and delivered by Bergen Brunswig Corporation, a New Jersey corporation (the "Guarantor"), and Chase Manhattan Bank and Trust Company, National Association, as trustee (the "Preferred Guarantee Trustee"), for the benefit of the Holders (as defined herein) from time to time of the Preferred Securities (as defined herein) of Bergen Capital Trust [ ], a Delaware statutory business trust (the "Issuer"); WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the "Declaration"), dated as of [ ], [ ], among the trustees of the Issuer named therein, the Guarantor, as sponsor, and the holders from time to time of undivided beneficial interests in the assets of the Issuer, the Issuer is issuing on the date hereof $[ ][(including $[ ] issued pursuant to an over-allotment option provided for in the Purchase Agreement)][(or up to $[ ] if the over-allotment option is exercised in full)] aggregate stated liquidation amount of Preferred Securities designated the [ ]% Preferred Securities (the "Preferred Securities"); WHEREAS, as incentive for the Holders to purchase the Preferred Securities, the Guarantor desires to irrevocably and unconditionally agree, to the extent set forth in this Guarantee Agreement, to pay to the Holders of the Preferred Securities the Guarantee Payments (as defined herein) and to make certain other payments on the terms and conditions set forth herein; WHEREAS, the Guarantor is also executing and delivering a guarantee agreement (the "Common Securities Guarantee Agreement") in substantially identical terms to this Guarantee Agreement for the benefit of the holders of the Common Securities (as defined herein) except that if an Event of Default (as defined in the Indenture (as defined herein)), has occurred and is continuing, the rights of holders of the Common Securities to receive Guarantee Payments under the Common Securities Guarantee Agreement are subordinated to the rights of Holders of Preferred Securities to receive Guarantee Payments under this Guarantee Agreement; NOW, THEREFORE, in consideration of the purchase by each Holder of Preferred Securities, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the benefit of the Holders. ARTICLE I. DEFINITIONS AND INTERPRETATION Section 1.01. Definitions and Interpretation. In this Guarantee Agreement, unless the context otherwise requires: (a) capitalized terms used in this Guarantee Agreement but not defined in the preamble above have the respective meanings assigned to them in this Section 1.01; (b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout; -158- (c) all references to "the Guarantee Agreement" or "this Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented or amended from time to time; (d) all references in this Guarantee Agreement to Articles and Sections are to Articles and Sections of this Guarantee Agreement unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee Agreement unless otherwise defined in this Guarantee Agreement or unless the context otherwise requires; (f) a reference to the singular includes the plural and vice versa; and (g) the following terms shall have the following meanings: "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act of 1933, as amended, as in effect on the date of this Guarantee Agreement. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Common Securities" means the securities representing common undivided beneficial interests in the assets of the Issuer. "Covered Person" means any Holder or beneficial owner of Preferred Securities. "Distribution" has the meaning specified in the Declaration. "Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Guarantee Agreement. "Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Preferred Securities, to the extent not paid or made by the Issuer: (i) any accrued and unpaid Distributions which are required to be paid on such Preferred Securities to the extent the Issuer shall have funds available therefore, (ii) the redemption price, including all accrued and unpaid Distributions to the date of redemption (the "Redemption Price"), to the extent the Issuer has funds available therefor, with respect to any Preferred Securities called for redemption by the Issuer, and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Issuer (other than in connection with the distribution of Subordinated Notes to the Holders in exchange for Preferred Securities as provided in the Declaration), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid Distributions on the Preferred Securities to the date of payment, to the extent the Issuer shall have funds available therefor, and (b) the amount of assets of the Issuer remaining available for distribution to Holders in liquidation of the Issuer (in either case, the "Liquidation Distribution"). If an Event of Default (as defined in the Indenture), has occurred and is continuing, the rights of the holders of the Common Securities to receive Guarantee Payments under the Common Securities Guarantee Agreement are subordinated to the rights of Holders of Preferred Securities to receive Guarantee Payments under this Guarantee Agreement. -159- "Guarantor" shall mean Bergen Brunswig Corporation, a New Jersey corporation, or any permitted successor thereof under the Indenture, in its capacity as guarantor under this Guarantee Agreement. "Holder" shall mean any holder, as registered on the books and records of the Issuer, of any Preferred Securities; provided, however, that in determining whether the holders of the requisite percentage of Preferred Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor or any Affiliate of the Guarantor. "Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate of the Preferred Guarantee Trustee, or any officers, directors, shareholders, members, partners, employees, representatives or agents of the Preferred Guarantee Trustee. "Indenture" means the Indenture dated as of [ ], [ ] among the Guarantor and Chase Manhattan Bank and Trust Company, National Association, as trustee, as supplemented by the Officers' Certificate (as defined in the Indenture) dated [ ],[]. "Majority in liquidation amount of the Preferred Securities" means, except as provided by the Trust Indenture Act, Holder(s) of Preferred Securities voting separately as a class, who vote Preferred Securities and the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of the Preferred Securities voted by such Holders represents more than 50% of the above stated liquidation amount of all Preferred Securities. "Officers' Certificate" means, with respect to any Person, a certificate signed by two Authorized Officers of such Person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee Agreement shall include: (a) a statement that each officer signing the Certificate has read the covenant or condition and the definition relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Certificate; (c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Preferred Guarantee Trustee" means Chase Manhattan Bank and Trust Company, National Association until a Successor Preferred Guarantee Trustee has -160- been appointed and has accepted such appointment pursuant to the terms of this Guarantee Agreement and thereafter means each such Successor Preferred Guarantee Trustee. "Responsible Officer" means, with respect to the Preferred Guarantee Trustee, any officer of the Preferred Guarantee Trustee with direct responsibility for the administration of this Declaration, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. "Subordinated Notes" means the series of subordinated debt securities of the Guarantor designated the [ ]% Subordinated Notes due 20[ ]. "Successor Preferred Guarantee Trustee" means a successor Preferred Guarantee Trustee possessing the qualifications to act as Preferred Guarantee Trustee under Section 4.01. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended. ARTICLE II. TRUST INDENTURE ACT Section 2.01. Trust Indenture Act; Application. (a) This Guarantee Agreement is subject to the provisions of the Trust Indenture Act that are required to be part of this Guarantee Agreement and shall, to the extent applicable, be governed by such provisions; and (b) if and to the extent that any provision of this Guarantee Agreement limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. Section 2.02. Lists of Holders of Securities. (a) The Guarantor shall provide the Preferred Guarantee Trustee (i) semiannually, not later than June 30 and December 31 of each year, a list, in such form as the Preferred Guarantee Trustee may reasonably require, containing all the information in the possession or control of the Guarantor, or any of its Paying Agents other than the Preferred Guarantee Trustee, as to the names and addresses of the Holders of Securities ("List of Holders") as of the preceding June 15 or December 15, as the case may be, and (ii) at such other times as the Preferred Guarantee Trustee may request in writing, within 30 days after the receipt by the Guarantor of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished. The Preferred Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders; and (b) the Preferred Guarantee Trustee shall comply with its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act. -161- Section 2.03. Reports by Preferred Guarantee Trustee. Within 60 days after May 15 of each year commencing May [ ], the Preferred Guarantee Trustee shall provide to the Holders of the Preferred Securities such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Preferred Guarantee Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. Section 2.04. Periodic Reports to Preferred Guarantee Trustee. The Guarantor shall provide to the Preferred Guarantee Trustee such documents, reports and information as required by Section 314 (if any) and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. Section 2.05. Evidence of Compliance with Conditions Precedent. The Guarantor shall provide to the Preferred Guarantee Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Guarantee Agreement which relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. Section 2.06. Events of Default; Waiver. The Holders of a Majority in liquidation amount of Preferred Securities may, by vote, on behalf of the Holders of all of the Preferred Securities, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Section 2.07. Event of Default; Notice. (a) The Preferred Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default known to the Preferred Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders of the Preferred Securities, notices of all such Events of Default, unless such defaults have been cured or waived before the giving of such notice, provided, that, the Preferred Guarantee Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or Responsible Officers, of the Preferred Guarantee Trustee in good faith determine that the withholding of such notice is in the interests of the Holders of the Preferred Securities. (b) The Preferred Guarantee Trustee shall not be deemed to have knowledge of any Event of Default except any Event of Default as to which the Preferred Guarantee Trustee shall have received written notice or a Responsible Officer charged with the administration of the Declaration shall have obtained written notice of. -162- Section 2.08. Conflicting Interests. The Declaration and the Indenture shall be deemed to be specifically described in this Guarantee Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. [Add all subsequent Declarations.] ARTICLE III. POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE Section 3.01. Powers and Duties of Preferred Guarantee Trustee. (a) This Guarantee Agreement shall be held by the Preferred Guarantee Trustee for the benefit of the Holders of the Preferred Securities, and the Preferred Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except a Holder of Preferred Securities exercising his or her rights pursuant to Section 5.04(b) or to a Successor Preferred Guarantee Trustee on acceptance by such Successor Preferred Guarantee Trustee of its appointment to act as Preferred Guarantee Trustee. The right, title and interest of the Preferred Guarantee Trustee shall automatically vest in any Successor Preferred Guarantee Trustee, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Preferred Guarantee Trustee. (b) If an Event of Default has occurred and is continuing, the Preferred Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the Holders of the Preferred Securities. (c) The Preferred Guarantee Trustee, before the occurrence of any Event of Default and after the curing or waiver of all Events of Default that may have occurred: (i) shall undertake to perform only such duties as are specifically set forth in this Guarantee Agreement and in the terms of the Preferred Securities, and no implied covenants, duties or obligations shall be read into this Guarantee Agreement against the Preferred Guarantee Trustee; and (ii) in the absence of bad faith on the part of the Preferred Guarantee Trustee, the Preferred Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Preferred Guarantee Trustee and conforming to the requirements of this Guarantee Agreement; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee Agreement. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.06), the Preferred Guarantee Trustee shall exercise such -163- of the rights and powers vested in it by this Guarantee Agreement, and use the same degree of care and skill in their exercise or use, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision of this Guarantee Agreement shall be construed to relieve the Preferred Guarantee Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) this subsection shall not be construed to limit subsection (c) of this Section; (ii) the Preferred Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Preferred Guarantee Trustee, unless it shall be proved that the Preferred Guarantee Trustee was negligent in ascertaining the pertinent facts; (iii) the Preferred Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in liquidation amount of the Preferred Securities at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Preferred Guarantee Trustee, or exercising any trust or power conferred upon the Preferred Guarantee Trustee under this Guarantee Agreement including, without limitation, with respect to the Preferred Securities; and -164- (iv) no provision of this Guarantee Agreement shall require the Preferred Guarantee Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (e) Whether or not therein expressly so provided, every provision of this Guarantee Agreement relating to the conduct or affecting the liability of or affording protection to the Preferred Guarantee Trustee shall be subject to the provisions of this Section. Section 3.02. Certain Rights of Preferred Guarantee Trustee. (a) Subject to the provisions of Section 3.01: (i) the Preferred Guarantee Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (ii) any act of the Guarantor contemplated by this Guarantee Agreement shall be sufficiently evidenced by an Officers' Certificate; (iii) whenever, in the administration of this Guarantee Agreement, the Preferred Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Preferred Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Guarantor; (iv) the Preferred Guarantee Trustee shall have no duty to see to any recording, filing or registration of any instrument (or any recording, refiling or registration thereof); (v) the Preferred Guarantee Trustee may consult with counsel of its selection and the written advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; such counsel may be counsel to the Guarantor or any of its Affiliates, and may include any of its employees; (vi) the Preferred Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee Agreement at the request or direction of any Holder, unless such Holder shall have offered to the Preferred Guarantee Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in complying with such request or direction; (vii) the Preferred Guarantee Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document, but the Preferred Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the Preferred Guarantee Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Guarantor, personally or by agent or attorney; (viii) the Preferred Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Preferred Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Preferred Guarantee Trustee or its agents hereunder shall bind the Trust and the Holders of the Preferred Securities and the signature of the Preferred Guarantee Trustee or its agents alone shall be sufficient and effective to perform any such action; and no third party shall be required to inquire as to the authority of the Preferred Guarantee Trustee to so act, or as to its compliance with any of the terms and provisions of this Guarantee Agreement, both of which shall be conclusively evidenced by the Preferred Guarantee Trustee's or its agent's taking such action; (x) whenever in the administration of this Guarantee Agreement the Preferred Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Preferred Guarantee Trustee (i) may request instructions from the Holders of the Preferred Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the Preferred Securities as would be entitled to direct the Preferred Guarantee Trustee under the terms of the Preferred Securities in respect of such remedy, right or action, (ii) may -165- refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions; (xi) the Preferred Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Preferred Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and (xii) the Preferred Guarantee Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Guarantee. (b) No provision of this Guarantee Agreement shall be deemed to empower the Preferred Guarantee Trustee to vary the investment of any Holder of the Preferred Securities or to act in a manner inconsistent with the status of the Issuer as a grantor trust for United States federal income tax purposes. Section 3.03. Not Responsible for Recitals or Issuance of Guarantee. The recitals contained in this Guarantee Agreement shall be taken as the statements of the Guarantor, and the Preferred Guarantee Trustee does not assume any responsibility for their correctness. The Preferred Guarantee Trustee makes no representations as to the validity or sufficiency of this Guarantee Agreement. ARTICLE IV. PREFERRED GUARANTEE TRUSTEE Section 4.01. Preferred Guarantee Trustee; Eligibility. (a) There shall at all times be a Preferred Guarantee Trustee which shall: (i) not be an Affiliate of the Guarantor; and (ii) be a corporation organized and doing business under the laws of the United States of America or any State thereof or of the District of Columbia, or a corporation or Person permitted by the Securities and Exchange Commission to act as an institutional trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by Federal, State or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then for the purposes of this Section 4.01(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published; -166- (b) if at any time the Preferred Guarantee Trustee shall cease to be eligible to so act under Section 4.01(a), the Preferred Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.02(c); and (c) if the Preferred Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. Section 4.02. Appointment, Removal and Resignation of Preferred Guarantee Trustee. (a) Subject to Section 4.02(b), the Preferred Guarantee Trustee may be appointed or removed without cause at any time by the Guarantor; (b) the Preferred Guarantee Trustee shall not be removed in accordance with Section 4.02(a) until a Successor Preferred Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Preferred Guarantee Trustee and delivered to the Guarantor; (c) the Preferred Guarantee Trustee appointed to office shall hold office until a Successor Preferred Guarantee Trustee shall have been appointed or until its removal or resignation. The Preferred Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Preferred Guarantee Trustee and delivered to the Guarantor, which resignation shall not take effect until a Successor Preferred Guarantee Trustee has been appointed and has accepted such appointment by instrument in writing executed by such Successor Preferred Guarantee Trustee and delivered to the Guarantor and the resigning Preferred Guarantee Trustee; and (d) if no Successor Preferred Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.02 within 60 days after delivery to the Guarantor of an instrument of resignation, the resigning Preferred Guarantee Trustee may petition any court of competent jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a Successor Preferred Guarantee Trustee. ARTICLE V. GUARANTEE Section 5.01. Guarantee. The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by the Issuer), as and when due, regardless of any defense, right of set-off or counterclaim which the Issuer may have or assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer to pay such amounts to the Holders. -167- Section 5.02. Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. Section 5.03. Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Guarantee Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer of any express or implied agreement, covenant, term or condition relating to the Preferred Securities to be performed or observed by the Issuer; (b) the extension of time for the payment by the Issuer of all or any portion of the Distributions, Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Preferred Securities (other than an extension of time for payment of Distributions, Redemption Price, Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Subordinated Notes or any extension of the maturity date of the Subordinated Notes permitted by the Indenture); (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Preferred Securities, or any action on the part of the Issuer granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer or any of the assets of the Issuer; (e) any invalidity of, or defect or deficiency in, the Preferred Securities or the Subordinated Notes; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 5.03 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation on the Holders or any other Person to give notice to, or obtain consent of, the Guarantor with respect to the happening of any of the foregoing. -168- Section 5.04. Rights of Holders. (a) The Holders of a Majority in liquidation amount of the Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Preferred Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust or power conferred upon the Preferred Guarantee Trustee under this Guarantee Agreement; and (b) Notwithstanding the rights of the Preferred Guarantee Trustee to enforce this Guarantee Agreement under Article III, any Holder of Preferred Securities may, to the extent permitted by applicable law, institute a legal proceeding directly against the Guarantor to enforce the Preferred Guarantee Trustee's rights under this Guarantee Agreement, without first instituting a legal proceeding against the Issuer, the Preferred Guarantee Trustee or any other Person. Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee Payment, a Holder of Preferred Securities may directly institute a proceeding against the Guarantor for enforcement of this Guarantee Agreement for such payment. The Guarantor waives any right or remedy to require that any action be brought first against the Issuer or any other person or entity before proceeding directly against the Guarantor. Section 5.05. Guarantee of Payment. This Guarantee Agreement creates a guarantee of payment and not of collection. Section 5.06. Subrogation. The Guarantor shall be subrogated to all rights, if any, of the Holders of Preferred Securities against the Issuer in respect of any amounts paid to such Holders by the Guarantor under this Guarantee Agreement; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights which it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee Agreement, if, at the time of any such payment, any amounts are due and unpaid under this Guarantee Agreement. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders. Section 5.07. Independent Obligations. The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer with respect to the Preferred Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof. -169- ARTICLE VI. LIMITATION OF TRANSACTIONS; RANKING Section 6.01. Limitation of Transactions. So long as any Preferred Securities remain outstanding, (a) the Guarantor will not declare or pay any dividend on, or make any distributions with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock, and (b) the Guarantor will not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities (including guarantees) of the Guarantor which rank pari passu with or junior to the Subordinated Notes, if at such time (i) there shall have occurred any Event of Default or (ii) there shall have occurred any Event of Default under the Declaration; provided, that, clause (a) above does not apply to (i) any stock dividends paid by the Guarantor where the dividend stock is the same as that on which the dividend is being paid, (ii) purchases or acquisitions by the Guarantor of shares of its common stock in connection with the satisfaction by the Guarantor or any of its subsidiaries of their respective obligations under any benefit plans for directors, officers, agents or employees of the Guarantor's dividend reinvestment or director, officer, agent or employee stock purchase plans, (iii) a reclassification of the Guarantor's capital stock or the exchange or conversion of one class or series of its capital stock for another class or series of its capital stock, (iv) the purchase of fractional interests in shares of the Guarantor's capital stock pursuant to the conversion or exchange provisions of such capital stock or security being converted or exchanged for capital stock, (v) dividends or distributions in shares of, or options, warrants or rights to subscribe for or purchase shares of the Guarantor's capital stock or (vi) any declaration by the Guarantor of a dividend in connection with the implementation or extension of a stockholders' rights plan, or the issuance of stock under any such plan (including any such existing plan) in the future or the redemption or repurchase or any such rights pursuant thereto. Section 6.02. Ranking. This Guarantee Agreement will constitute an unsecured obligation of the Guarantor and will rank (i) subordinate and junior in right of payment to all other liabilities of the Guarantor, except for those liabilities made pari passu or junior by their terms to any liabilities of the Guarantor under this Guarantee Agreement, (ii) pari passu with the most senior preferred or preference stock now or hereafter issued by the Guarantor and with any guarantee now or hereafter entered into by the Guarantor in respect of any preferred or preference stock of any Affiliate of the Guarantor, and (iii) senior to the Guarantor's common stock[; provided, that, this Guarantee Agreement shall be pari passu with the guarantee issued by the Guarantor in connection with [ ]]. ARTICLE VII. TERMINATION Section 7.01. Termination. This Guarantee Agreement shall terminate with respect to each Holder upon the first to occur of the following: full payment of the Redemption Price of all Preferred Securities, the distribution of the Subordinated Notes to the -170- Holders of all of the Preferred Securities, [the conversion of all of such Holder's Preferred Securities into Class A Common Stock of the Guarantor] or full payment of the amounts payable in accordance with the Declaration upon dissolution of the Trust. Notwithstanding the foregoing, this Guarantee Agreement will continue to be effective or will be reinstated, as the case may be, if at any time any Holder of Preferred Securities must restore payment of any sums paid under the Preferred Securities or under this Preferred Securities Guarantee. ARTICLE VIII. INDEMNIFICATION Section 8.01. Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Guarantor or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith in accordance with this Guarantee Agreement and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Guarantee Agreement or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's negligence (or, in the case of the Preferred Guarantee Trustee, except as otherwise set forth in Section 3.01) or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Guarantor and upon such information, opinions, reports or statements presented to the Guarantor by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Guarantor, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Preferred Securities might properly be paid. Section 8.02. Indemnification. (a) The Guarantor shall indemnify each Indemnified Person for, and hold each Indemnified Person harmless against, any loss, liability or expense incurred by such Indemnified Person by reason of any act or omission performed or omitted by such Indemnified Person without negligence or bad faith (or, in the case of the Preferred Securities Trustee, except as set forth in Section 3.01) in accordance with this Guarantee Agreement and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Guarantee Agreement. (b) Reasonable expenses (including reasonable legal fees and expenses) incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Guarantor prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Guarantor of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified as authorized in Section 8.02(a). -171- (c) The provisions of this Section 8.02 shall survive termination of this Guarantee or the resignation or removal of the Preferred Guarantee Trustee. ARTICLE IX. MISCELLANEOUS Section 9.01. Successors and Assigns. All guarantees and agreements contained in this Guarantee Agreement shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Preferred Securities then outstanding. Section 9.02. Amendments. Except with respect to any changes which do not adversely affect the rights of Holders (in which case no consent of Holders will be required), this Guarantee Agreement may only be amended with the prior approval of the Holders of at least a Majority in liquidation amount of the Preferred Securities. The provisions of Section 12.2 of the Declaration with respect to meetings of Holders apply to the giving of such approval. Section 9.03. Notices. All notices provided for in this Guarantee Agreement shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, postage prepaid, as follows: (a) if given to the Preferred Guarantee Trustee at the Preferred Guarantee Trustee's mailing address set forth below (or such other address as the Preferred Guarantee Trustee may give notice of to the Holders of the Preferred Securities): Chase Manhattan Bank and Trust Company, National Association, 101 California Street, Suite 2725, San Francisco, California 94111 Attn: Corporate Trust Administration (b) if given to the Guarantor, at the Guarantor's mailing address set forth below (or such other address as the Guarantor may give notice of to the Holders of the Preferred Securities): Bergen Brunswig Corporation 4000 Metropolitan Drive, Orange, California Attn : ChIef Legal Officer, with a copy (which shall not constitute notice) to Peter H. Ehrenberg, Esq., Lowenstein Sandler PC, 65 Livingston Avenue, Roseland, New Jersey 07068 (c) if given to any Holder of Preferred Securities, at the address set forth on the books and records of the Issuer. All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed except that if a notice or other -172- document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. Section 9.05. Benefit. This Guarantee Agreement is solely for the benefit of the Holders of the Preferred Securities and subject to Section 3.01(a) is not separately transferable from the Preferred Securities. Section 9.05. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. -173- THIS GUARANTEE AGREEMENT is executed as of the day and year first above written. BERGEN BRUNSWIG CORPORATION By:__________________________________ Name: Title: CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION as Preferred Guarantee Trustee By:__________________________________ Name: Title: -174- EX-4 10 COMMON SECURITIES GUARANTEE AGREEMENT EXHIBIT 4.9 BERGEN BRUNSWIG CORPORATION AND CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE COMMON SECURITIES GUARANTEE AGREEMENT Dated as of [ ], [ ] -175- Table of Contents Page ARTICLE I. DEFINITIONS AND INTERPRETATION Section 1.01. Definitions and Interpretation.............................. ARTICLE II. TRUST INDENTURE ACT Section 2.01. Trust Indenture Act; Application............................ Section 2.02. Lists of Holders of Securities.............................. Section 2.03. Reports by Common Guarantee Trustee........................ Section 2.04. Periodic Reports to Common Guarantee Trustee................ Section 2.05. Evidence of Compliance with Conditions Precedent............ Section 2.06. Events of Default; Waiver................................... Section 2.07. Event of Default; Notice.................................... Section 2.08. Conflicting Interests....................................... .......................................................................... ARTICLE III. POWERS, DUTIES AND RIGHTS OF COMMON GUARANTEE TRUSTEE Section 3.01. Powers and Duties of Common Guarantee Trustee............... Section 3.02. Certain Rights of Common Guarantee Trustee.................. Section 3.03. Not Responsible for Recitals or Issuance of Guarantee....... ARTICLE IV. COMMON GUARANTEE TRUSTEE Section 4.01. Common Guarantee Trustee; Eligibility....................... Section 4.02. Appointment, Removal and Resignation of Common Guarantee Trustee................................................. ARTICLE V. GUARANTEE Section 5.01. Guarantee................................................... Section 5.02. Waiver of Notice and Demand................................. Section 5.03. Obligations Not Affected.................................... Section 5.04. Rights of Holders........................................... Section 5.05. Guarantee of Payment........................................ Section 5.06. Subrogation................................................. Section 5.07. Independent Obligations..................................... -176- ARTICLE VI. LIMITATION OF TRANSACTIONS; RANKING Section 6.01. Limitation of Transactions.................................. Section 6.02. Ranking..................................................... ARTICLE VII. TERMINATION Section 7.01. Termination................................................. ARTICLE VIII. INDEMNIFICATION Section 8.01. Exculpation................................................. Section 8.02. Indemnification............................................. ARTICLE IX SUBORDINATION OF GUARANTEE PAYMENTS Section 9.01 Subordination of Guarantee Payments.......................... Section 9.02 Payment Over of Proceeds upon Dissolution, Etc............... Section 9.03 Prior Payment of Preferred Guarantee Payments upon Acceleration of the Related Debt Securities.............. Section 9.04. No Payment When There is an Indenture Event of Default Section 9.05 Payment Permitted in Certain Situations...................... Section 9.06 Subrogation to Rights of Holders of Preferred Securities..... Section 9.07 Provisions Solely to Define Relative Rights.................. Section 9.08 Common Guarantee Trustee to Effectuate Subordination......... Section 9.09 No Waiver of Subordination Provisions........................ Section 9.10 Notice to Trustee............................................ Section 9.11 Reliance on Judicial Order or Certificate of Liquidating Agent................................................... Section 912 Common Guarantee Trustee Not Fiduciary for Holders of Senior Indebtedness............................................ Section 9.13 Rights of Common Guarantee Trustee as Holder of Preferred Securities; Preservation of Common Guarantee Trustee's Rights..................................... Section 9.15 Certain Conversions Deemed Payment........................ ARTICLE X. MISCELLANEOUS Section 10.01. Successors and Assigns.................................. Section 10.02. Amendments.............................................. Section 10.03. Notices................................................. Section 10.04. Benefit................................................. Section 10.05. Governing Law........................................... -177- COMMON SECURITIES GUARANTEE AGREEMENT This COMMON SECURITIES GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of [ ], [ ], is executed and delivered by Bergen Brunswig Corporation, a New Jersey corporation (the "Guarantor"), and Chase Manhattan Bank and Trust Company, National Association, as trustee (the "Common Guarantee Trustee"), for the benefit of the Holders (as defined herein) from time to time of the Common Securities (as defined herein) of Bergen Capital Trust [ ], a Delaware statutory business trust (the "Issuer"); WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the "Declaration"), dated as of [ ], [ ], among the trustees of the Issuer named therein, the Guarantor, as sponsor, and the holders from time to time of undivided beneficial interests in the assets of the Issuer, the Issuer is issuing on the date hereof $[ ][(including $[ ] issued pursuant to an over-allotment option provided for in the Purchase Agreement)][(or up to $[ ] if the over-allotment option is exercised in full)] aggregate stated liquidation amount of Common Securities designated the [ ]% Common Securities (the "Common Securities"); WHEREAS, as incentive for the Holders to purchase the Common Securities, the Guarantor desires to irrevocably and unconditionally agree, to the extent set forth in this Guarantee Agreement, to pay to the Holders of the Common Securities the Guarantee Payments (as defined herein) and to make certain other payments on the terms and conditions set forth herein; WHEREAS, the Guarantor is also executing and delivering a guarantee agreement (the "Preferred Securities Guarantee Agreement") in substantially identical terms to this Guarantee Agreement for the benefit of the holders of the Preferred Securities (as defined herein) except that if an Indenture Event of Default has occurred under the Indenture (as defined herein) and is continuing, the rights of holders of the Common Securities to receive Guarantee Payments under this Common Securities Guarantee Agreement are subordinated to the rights of holders of Preferred Securities to receive guarantee payments under the Preferred Securities Guarantee Agreement ("Preferred Guarantee Payments"); NOW, THEREFORE, in consideration of the purchase by each Holder of Common Securities, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the benefit of the Holders. ARTICLE I. DEFINITIONS AND INTERPRETATION Section 1.01. Definitions and Interpretation. In this Guarantee Agreement, unless the context otherwise requires: (a) capitalized terms used in this Guarantee Agreement but not defined in the preamble above have the respective meanings assigned to them in this Section 1.01; (b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout; -178- (c) all references to "the Guarantee Agreement" or "this Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented or amended from time to time; (d) all references in this Guarantee Agreement to Articles and Sections are to Articles and Sections of this Guarantee Agreement unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee Agreement unless otherwise defined in this Guarantee Agreement or unless the context otherwise requires; (f) a reference to the singular includes the plural and vice versa; and (g) the following terms shall have the following meanings: "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act of 1933, as amended, as in effect on the date of this Guarantee Agreement. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Common Securities" means the securities representing common undivided beneficial interests in the assets of the Issuer. "Covered Person" means any Holder or beneficial owner of Common Securities. "Distribution" has the meaning specified in the Declaration. "Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Guarantee Agreement. "Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Common Securities, to the extent not paid or made by the Issuer: (i) any accrued and unpaid Distributions which are required to be paid on such Common Securities to the extent the Issuer shall have funds available therefore, (ii) the redemption price, including all accrued and unpaid Distributions to the date of redemption (the "Redemption Price"), to the extent the Issuer has funds available therefor, with respect to any Common Securities called for redemption by the Issuer, and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Issuer (other than in connection with the distribution of Subordinated Notes to the Holders in exchange for Common Securities as provided in the Declaration), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid Distributions on the Common Securities to the date of payment, to the extent the Issuer shall have funds available therefor, and (b) the amount of assets of the Issuer remaining available for distribution to Holders in liquidation of the Issuer (in either case, the "Liquidation Distribution"). If an Indenture Event of Default has occurred and is continuing, the rights of the holders of the Common Securities to receive Guarantee Payments under this Common Securities Guarantee Agreement are subordinated to the rights of Holders of Preferred Securities to receive Preferred Guarantee Payments under the Preferred Securities Guarantee Agreement. -179- "Guarantor" shall mean Bergen Brunswig Corporation, a New Jersey corporation, or any permitted successor thereof under the Indenture, in its capacity as guarantor under this Guarantee Agreement. "Holder" shall mean any holder, as registered on the books and records of the Issuer, of any Common Securities. "Indemnified Person" means the Common Guarantee Trustee, any Affiliate of the Common Guarantee Trustee, or any officers, directors, shareholders, members, partners, employees, representatives or agents of the Common Guarantee Trustee. "Indenture" means the Indenture dated as of [ ], [ ] among the Guarantor and Chase Manhattan Bank and Trust Company, National Association, as trustee, as supplemented by the Officers' Certificate (as defined in the Indenture) dated [ ],[] and/or the Supplemental Indenture dated as of [ ], [ ]. "Indenture Event of Default" shall mean any event defined as an "Event of Default" under the Indenture. "Majority in liquidation amount of the Common Securities" means, except as provided by the Trust Indenture Act, Holder(s) of Common Securities voting separately as a class, who vote Common Securities and the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of the Common Securities voted by such Holders represents more than 50% of the above stated liquidation amount of all Common Securities. "Officers' Certificate" means, with respect to any Person, a certificate signed by two Authorized Officers of such Person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee Agreement shall include: (a) a statement that each officer signing the Certificate has read the covenant or condition and the definition relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Certificate; (c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. -180- "Common Guarantee Trustee" means Cahse Manhattan Bank and Trust Company, National Association until a Successor Common Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee Agreement and thereafter means each such Successor Common Guarantee Trustee. "Responsible Officer" means, with respect to the Common Guarantee Trustee, any officer of the Common Guarantee Trustee with direct responsibility for the administration of this Declaration, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. "Subordinated Notes" means the series of subordinated debt securities of the Guarantor designated the [ ]% Subordinated Notes due 20[ ]. "Successor Common Guarantee Trustee" means a successor Common Guarantee Trustee possessing the qualifications to act as Common Guarantee Trustee under Section 4.01. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended. ARTICLE II. TRUST INDENTURE ACT Section 2.01. Trust Indenture Act; Application. (a) This Guarantee Agreement is subject to the provisions of the Trust Indenture Act that are required to be part of this Guarantee Agreement and shall, to the extent applicable, be governed by such provisions; and (b) if and to the extent that any provision of this Guarantee Agreement limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. Section 2.02. Lists of Holders of Securities. (a) The Guarantor shall provide the Common Guarantee Trustee (i) semiannually, not later than June 30 and December 31 of each year, a list, in such form as the Common Guarantee Trustee may reasonably require, containing all the information in the possession or control of the Guarantor, or any of its Paying Agents other than the Common Guarantee Trustee, as to the names and addresses of the Holders of Common Securities ("List of Holders") as of the preceding June 15 or December 15, as the case may be, and (ii) at such other times as the Common Guarantee Trustee may request in writing, within 30 days after the receipt by the Guarantor of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished. The Common Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders; and (b) the Common Guarantee Trustee shall comply with its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act. -181- Section 2.03. Reports by Common Guarantee Trustee. Within 60 days after May 15 of each year commencing May [ ], the Common Guarantee Trustee shall provide to the Holders of the Common Securities such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Common Guarantee Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. Section 2.04. Periodic Reports to Common Guarantee Trustee. The Guarantor shall provide to the Common Guarantee Trustee such documents, reports and information as required by Section 314 (if any) and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. Section 2.05. Evidence of Compliance with Conditions Precedent. The Guarantor shall provide to the Common Guarantee Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Guarantee Agreement which relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. Section 2.06. Events of Default; Waiver. The Holders of a Majority in liquidation amount of Common Securities may, by vote, on behalf of the Holders of all of the Common Securities, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Section 2.07. Event of Default; Notice. (a) The Common Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default known to the Common Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders of the Common Securities, notices of all such Events of Default, unless such defaults have been cured or waived before the giving of such notice, provided, that, the Common Guarantee Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or Responsible Officers, of the Common Guarantee Trustee in good faith determine that the withholding of such notice is in the interests of the Holders of the Common Securities. (b) The Common Guarantee Trustee shall not be deemed to have knowledge of any Event of Default except any Event of Default as to which the Common Guarantee Trustee shall have received written notice or a Responsible Officer charged with the administration of the Declaration shall have obtained written notice of. -182- Section 2.08. Conflicting Interests. The Declaration and the Indenture shall be deemed to be specifically described in this Guarantee Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. [Add all subsequent Declarations.] ARTICLE III. POWERS, DUTIES AND RIGHTS OF COMMON GUARANTEE TRUSTEE Section 3.01. Powers and Duties of Common Guarantee Trustee. (a) This Guarantee Agreement shall be held by the Common Guarantee Trustee for the benefit of the Holders of the Common Securities, and the Common Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except a Holder of Common Securities exercising his or her rights pursuant to Section 5.04(b) or to a Successor Common Guarantee Trustee on acceptance by such Successor Common Guarantee Trustee of its appointment to act as Common Guarantee Trustee. The right, title and interest of the Common Guarantee Trustee shall automatically vest in any Successor Common Guarantee Trustee, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Common Guarantee Trustee. (b) If an Event of Default has occurred and is continuing, the Common Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the Holders of the Common Securities, provided that if an Indenture Event of Default has occurred and is continuing, the rights of holders of the Common Securities to receive Guarantee Payments under this Common Securities Guarantee Agreement are subordinated to the rights of holders of Preferred Securities to receive Preferred Guarantee Payments under the Preferred Securities Guarantee Agreement, as provided in Article IX. (c) The Common Guarantee Trustee, before the occurrence of any Event of Default and after the curing or waiver of all Events of Default that may have occurred: (i) shall undertake to perform only such duties as are specifically set forth in this Guarantee Agreement and in the terms of the Common Securities, and no implied covenants, duties or obligations shall be read into this Guarantee Agreement against the Common Guarantee Trustee; and (ii) in the absence of bad faith on the part of the Common Guarantee Trustee, the Common Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Common Guarantee Trustee and conforming to the requirements of this Guarantee Agreement; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Common Guarantee Trustee, the Common Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee Agreement. -183- In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.06), the Common Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee Agreement, and use the same degree of care and skill in their exercise or use, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision of this Guarantee Agreement shall be construed to relieve the Common Guarantee Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) this subsection shall not be construed to limit subsection (c) of this Section; (ii) the Common Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Common Guarantee Trustee, unless it shall be proved that the Common Guarantee Trustee was negligent in ascertaining the pertinent facts; (iii) the Common Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in liquidation amount of the Common Securities at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Common Guarantee Trustee, or exercising any trust or power conferred upon the Common Guarantee Trustee under this Guarantee Agreement including, without limitation, with respect to the Common Securities; and (iv) no provision of this Guarantee Agreement shall require the Common Guarantee Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (e) Whether or not therein expressly so provided, every provision of this Guarantee Agreement relating to the conduct or affecting the liability of or affording protection to the Common Guarantee Trustee shall be subject to the provisions of this Section. Section 3.02. Certain Rights of Common Guarantee Trustee. (a) Subject to the provisions of Section 3.01: (i) the Common Guarantee Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (ii) any act of the Guarantor contemplated by this Guarantee Agreement shall be sufficiently evidenced by an Officers' Certificate; -184- (iii) whenever, in the administration of this Guarantee Agreement, the Common Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Common Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Guarantor; (iv) the Common Guarantee Trustee shall have no duty to see to any recording, filing or registration of any instrument (or any recording, refiling or registration thereof); (v) the Common Guarantee Trustee may consult with counsel of its selection and the written advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; such counsel may be counsel to the Guarantor or any of its Affiliates, and may include any of its employees; (vi) the Common Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee Agreement at the request or direction of any Holder, unless such Holder shall have offered to the Common Guarantee Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in complying with such request or direction; (vii) the Common Guarantee Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document, but the Common Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the Common Guarantee Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Guarantor, personally or by agent or attorney; (viii) the Common Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Common Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Common Guarantee Trustee or its agents hereunder shall bind the Trust and the Holders of the Common Securities and the signature of the Common Guarantee Trustee or its agents alone shall be sufficient and effective to perform any such action; and no third party shall be required to inquire as to the authority of the Common Guarantee Trustee to so act, or as to its compliance with any of the terms and provisions of this Guarantee Agreement, both of which shall be conclusively evidenced by the Common Guarantee Trustee's or its agent's taking such action; (x) whenever in the administration of this Guarantee Agreement the Common Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Common Guarantee Trustee (i) may request instructions from the Holders of the Common Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the Common Securities as would be entitled to direct the Common Guarantee Trustee under the terms of the -185- Common Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions; (xi) the Common Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Common Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and (xii) the Common Guarantee Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Guarantee. (b) No provision of this Guarantee Agreement shall be deemed to empower the Common Guarantee Trustee to vary the investment of any Holder of the Common Securities or to act in a manner inconsistent with the status of the Issuer as a grantor trust for United States federal income tax purposes. Section 3.03. Not Responsible for Recitals or Issuance of Guarantee. The recitals contained in this Guarantee Agreement shall be taken as the statements of the Guarantor, and the Common Guarantee Trustee does not assume any responsibility for their correctness. The Common Guarantee Trustee makes no representations as to the validity or sufficiency of this Guarantee Agreement. ARTICLE IV. COMMON GUARANTEE TRUSTEE Section 4.01. Common Guarantee Trustee; Eligibility. (a) There shall at all times be a Common Guarantee Trustee which shall: (i) not be an Affiliate of the Guarantor; and (ii) be a corporation organized and doing business under the laws of the United States of America or any State thereof or of the District of Columbia, or a corporation or Person permitted by the Securities and Exchange Commission to act as an institutional trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by Federal, State or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority -186- referred to above, then for the purposes of this Section 4.01(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published; (b) if at any time the Common Guarantee Trustee shall cease to be eligible to so act under Section 4.01(a), the Common Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.02(c); and (c) if the Common Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Common Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. Section 4.02. Appointment, Removal and Resignation of Common Guarantee Trustee. (a) Subject to Section 4.02(b), the Common Guarantee Trustee may be appointed or removed without cause at any time by the Guarantor; (b) the Common Guarantee Trustee shall not be removed in accordance with Section 4.02(a) until a Successor Common Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Common Guarantee Trustee and delivered to the Guarantor; (c) the Common Guarantee Trustee appointed to office shall hold office until a Successor Common Guarantee Trustee shall have been appointed or until its removal or resignation. The Common Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Common Guarantee Trustee and delivered to the Guarantor, which resignation shall not take effect until a Successor Common Guarantee Trustee has been appointed and has accepted such appointment by instrument in writing executed by such Successor Common Guarantee Trustee and delivered to the Guarantor and the resigning Common Guarantee Trustee; and (d) if no Successor Common Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.02 within 60 days after delivery to the Guarantor of an instrument of resignation, the resigning Common Guarantee Trustee may petition any court of competent jurisdiction for appointment of a Successor Common Guarantee Trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a Successor Common Guarantee Trustee. ARTICLE V. GUARANTEE Section 5.01. Guarantee. The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by the Issuer), as and when due, regardless of any defense, right of set-off or counterclaim which the Issuer may have or assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer to pay such amounts to the Holders. If an Indenture Event of Default has occurred and is continuing, the rights of holders of the Common Securities to receive Guarantee Payments under this Common Securities Guarantee Agreement are subordinated to the rights of Holders of Preferred Securities to receive -187- Preferred Guarantee Payments under the Preferred Securities Guarantee Agreement, as set forth in Article IX. Section 5.02. Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. Section 5.03. Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Guarantee Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer of any express or implied agreement, covenant, term or condition relating to the Common Securities to be performed or observed by the Issuer; (b) the extension of time for the payment by the Issuer of all or any portion of the Distributions, Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Common Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Common Securities (other than an extension of time for payment of Distributions, Redemption Price, Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Subordinated Notes or any extension of the maturity date of the Subordinated Notes permitted by the Indenture); (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Common Securities, or any action on the part of the Issuer granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer or any of the assets of the Issuer; (e) any invalidity of, or defect or deficiency in, the Common Securities or the Subordinated Notes; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or -188- (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 5.03 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation on the Holders or any other Person to give notice to, or obtain consent of, the Guarantor with respect to the happening of any of the foregoing. Section 5.04. Rights of Holders. (a) The Holders of a Majority in liquidation amount of the Common Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Common Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust or power conferred upon the Common Guarantee Trustee under this Guarantee Agreement; and (b) Notwithstanding the rights of the Common Guarantee Trustee to enforce this Guarantee Agreement under Article III, any Holder of Common Securities may, to the extent permitted by applicable law, institute a legal proceeding directly against the Guarantor to enforce the Common Guarantee Trustee's rights under this Guarantee Agreement, without first instituting a legal proceeding against the Issuer, the Common Guarantee Trustee or any other Person. Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee Payment, a Holder of Common Securities may directly institute a proceeding against the Guarantor for enforcement of this Guarantee Agreement for such payment. The Guarantor waives any right or remedy to require that any action be brought first against the Issuer or any other person or entity before proceeding directly against the Guarantor. Section 5.05. Guarantee of Payment. This Guarantee Agreement creates a guarantee of payment and not of collection. Section 5.06. Subrogation. The Guarantor shall be subrogated to all rights, if any, of the Holders of Common Securities against the Issuer in respect of any amounts paid to such Holders by the Guarantor under this Guarantee Agreement; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights which it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee Agreement, if, at the time of any such payment, any amounts are due and unpaid under this Guarantee Agreement. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders. Section 5.07. Independent Obligations. The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer with respect to the Common Securities and that the Guarantor shall be liable as principal and as debtor -189- hereunder to make Guarantee Payments pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof. ARTICLE VI. LIMITATION OF TRANSACTIONS; RANKING Section 6.01. Limitation of Transactions. So long as any Common Securities remain outstanding, (a) the Guarantor will not declare or pay any dividend on, or make any distributions with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock, and (b) the Guarantor will not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities (including guarantees) of the Guarantor which rank pari passu with or junior to the Subordinated Notes, if at such time (i) there shall have occurred any Event of Default or (ii) there shall have occurred any Event of Default under the Declaration; provided, that, clause (a) above does not apply to (i) any stock dividends paid by the Guarantor where the dividend stock is the same as that on which the dividend is being paid, (ii) purchases or acquisitions by the Guarantor of shares of its common stock in connection with the satisfaction by the Guarantor or any of its subsidiaries of their respective obligations under any benefit plans for directors, officers, agents or employees or the Guarantor's dividend reinvestment or director, officer, agent or employee stock purchase plans, (iii) a reclassification of the Guarantor's capital stock or the exchange or conversion of one class or series of its capital stock for another class or series of its capital stock, (iv) the purchase of fractional interests in shares of the Guarantor's capital stock pursuant to the conversion or exchange provisions of such capital stock or security being converted or exchanged for capital stock, (v) dividends or distributions in shares of, or options, warrants or rights to subscribe for or purchase shares of the Guarantor's capital stock or (vi) any declaration by the Guarantor of a dividend in connection with the implementation or extension of a stockholders' rights plan, or the issuance of stock under any such plan (including any such existing plan) in the future or the redemption or repurchase or any such rights pursuant thereto. Section 6.02. Ranking. This Guarantee Agreement will constitute an unsecured obligation of the Guarantor and will rank (i) subordinate and junior in right of payment to all other liabilities of the Guarantor, except for those liabilities made pari passu or junior by their terms to any liabilities of the Guarantor under this Guarantee Agreement, (ii) pari passu with the most senior preferred or preference stock now or hereafter issued by the Guarantor and with any guarantee now or hereafter entered into by the Guarantor in respect of any preferred or preference stock of any Affiliate of the Guarantor, and (iii) senior to the Guarantor's common stock[; provided, that, this Guarantee Agreement shall be pari passu with the guarantee issued by the Guarantor in connection with [ ]]. -190- ARTICLE VII. TERMINATION Section 7.01. Termination. This Guarantee Agreement shall terminate with respect to each Holder upon the first to occur of the following: full payment of the Redemption Price of all Common Securities, the distribution of the Subordinated Notes to the Holders of all of the Common Securities, [the conversion of all of such Holder's Common Securities into Class A Common Stock of the Guarantor] or full payment of the amounts payable in accordance with the Declaration upon dissolution of the Trust. Notwithstanding the foregoing, this Guarantee Agreement will continue to be effective or will be reinstated, as the case may be, if at any time any Holder of Common Securities must restore payment of any sums paid under the Common Securities or under this Common Securities Guarantee. ARTICLE VIII. INDEMNIFICATION Section 8.01. Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Guarantor or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith in accordance with this Guarantee Agreement and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Guarantee Agreement or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's negligence (or, in the case of the Common Guarantee Trustee, except as otherwise set forth in Section 3.01) or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Guarantor and upon such information, opinions, reports or statements presented to the Guarantor by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Guarantor, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Common Securities might properly be paid. Section 8.02. Indemnification. (a) The Guarantor shall indemnify each Indemnified Person for, and hold each Indemnified Person harmless against, any loss, liability or expense incurred by such Indemnified Person by reason of any act or omission performed or omitted by such Indemnified Person without negligence or bad faith (or, in the case of the Common Securities Trustee, except as set forth in Section -191- 3.01) in accordance with this Guarantee Agreement and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Guarantee Agreement. (b) Reasonable expenses (including reasonable legal fees and expenses) incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Guarantor prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Guarantor of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified as authorized in Section 8.02(a). (c) The provisions of this Section 8.02 shall survive termination of this Guarantee or the resignation or removal of the Common Guarantee Trustee. ARTICLE IX. SUBORDINATION OF GUARANTEE PAYMENTS Section 9.01. Subordination of Guarantee Payments. Each Holder of the Common Securities agrees, by such Holder's acceptance thereof, that if an Indenture Event of Default has occurred and is continuing, the rights of Holders of the Common Securities to receive Guarantee Payments under this Common Securities Guarantee Agreement are hereby expressly made subordinate and junior in right of payment to the prior payment in full of the Preferred Guarantee Payments under the Preferred Securities Guarantee Agreement, to the extent and in the manner hereinafter set forth in this Article. No provision of this Article shall prevent the occurrence of any default hereunder. Section 9.02. Payment Over of Proceeds upon Dissolution, Etc. If an Indenture Event of Default has occurred and is continuing, upon any payment by the Guarantor or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of the Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all amounts due upon all Preferred Guarantee Payments shall first be paid in full, or payment thereof provided for in money in accordance with the terms of the Preferred Securities Guarantee Agreement, before any payment is made by the Guarantor on account of any Guarantee Payments under this Common Securities Guarantee Agreement; and upon any such dissolution or winding-up or liquidation or reorganization, any payment by the Guarantor, or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, to which the Holders of the Common Securities or the Common Guarantee Trustee would be entitled to receive from the Guarantor, except for the provisions of this Article, shall be paid by the Guarantor or by any receiver, trustee in bankruptcy, liquidation trustee, agent or other person making such payment or distribution, or by the Holders of the Common Securities or by the Common Guarantee Trustee under this Common Securities Guarantee Agreement, if received by them or it, directly to the holders of the Preferred Securities (pro rata to such holders on the basis of the respective amounts of Preferred Securities held by such holders, as calculated by the trustee or trustees under the Preferred Securities Guarantee Agreement) or their -192- representative or representatives, or to the trustee or trustees under the Preferred Securities Guarantee Agreement, as their respective interests may appear, to the extent necessary to pay such Preferred Guarantee Payments in full, in money or moneys worth, after giving effect to any concurrent payment or distribution to or for the holders of such Preferred Securities, before any payment or distribution is made to the Holders of the Common Securities or to the Common Guarantee Trustee hereunder. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Common Guarantee Trustee or the Holders of the Common Securities before all Preferred Guarantee Payments are paid in full, or provision is made for such payment in money in accordance with the applicable terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of the Preferred Securities or their representative or representatives, or to the trustee or trustees under the Preferred Securities Guarantee Agreement, as their respective interests may appear, as calculated by such trustee or trustees, for application to the payment of all Preferred Guarantee Payments remaining unpaid to the extent necessary to pay such Preferred Guarantee Payments in full in money in accordance with the applicable terms of the Preferred Securities Guarantee Agreement, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of the Preferred Securities. For purposes of this Article only, the words cash, property or securities shall not be deemed to include shares of stock of the Guarantor as reorganized or readjusted, or securities of the Guarantor or any other corporation provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Preferred Guarantee Payments which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Common Securities are so subordinated as provided in this Article. The consolidation of the Guarantor with, or the merger of the Guarantor into, another entity or the liquidation or dissolution of the Guarantor following the conveyance or transfer of its properties and assets substantially as an entirety to another entity upon the terms and conditions set forth in [Article IX] of the Indenture shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Guarantor for the purposes of this Section if the entity formed by such consolidation or into which the Guarantor is merged or the entity which acquires by conveyance or transfer such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in [Article IX] of the Indenture. Section 9.03. Prior Payment of Preferred Guarantee Payments upon Acceleration of the Related Debt Securities In the event that any Subordinated Notes are declared due and payable before their stated maturity as a result of an Indenture Event of Default, then and in such event the holders of Preferred Securities shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Preferred Guarantee Payments or provision shall be made for such payment in cash, before the Holders of the Common Securities are entitled to receive any payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Guarantor being subordinated to the payment of the Guarantee Payments) by the Guarantor on account of the Guarantee Payments. -193- In the event that, notwithstanding the foregoing, the Guarantor shall make any payment to the Common Guarantee Trustee or the Holder of any Common Securities prohibited by the foregoing provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Common Guarantee Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Guarantor. Section 9.04. No Payment When There is an Indenture Event of Default In the event and during the continuation of any Indenture Event of Default, beyond any applicable grace period with respect thereto, then no payment shall be made by the Guarantor with respect to the Guarantee Payments until such default is cured or waived or ceases to exist or all Preferred Guarantee Payments have been made.. Section 9.05. Payment Permitted in Certain Situations Nothing contained in this Article or elsewhere in this Common Securities Guarantee Agreement or in any of the Common Securities shall prevent (a) the Guarantor, at any time except during the pendency of any dissolution, winding-up, liquidation or reorganization of the Guarantor, whether voluntary or involuntary or any bankruptcy, insolvency, receivership or other proceedings of the Guarantor referred to in Section 10.02 or under the conditions described in Sections 10.03 or 8.4, from making Guarantee Payments at any time, or (b) the application by the Common Guarantee Trustee of any money deposited with it hereunder to the payment of or on account of the Guarantee Payments hereunder or the retention of such Guarantee Payments by the Holders of Common Securities, if, at the time of such application by the Common Guarantee Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Article. Section 9.06. Subrogation to Rights of Holders of Senior Indebtedness Subject to the payment in full of all Preferred Guarantee Payments or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Preferred Securities, the rights of the Holders of Common Securities shall be subrogated to the extent of the payments or distributions made to the holders of Preferred Securities pursuant to the provisions of this Article (equally and ratably with the holders of indebtedness of the Guarantors which by its express terms is subordinated to indebtedness of the Guarantor to substantially the same extent as the Common Securities are subordinated to the Preferred Securities and is entitled to like rights of subrogation) to the rights of the holders of the Preferred Securities to receive payments and distributions of cash, property and securities applicable to the Preferred Guarantee Payments until the Guarantee Payments shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Preferred Securities of any cash, property or securities to which the Holders of Common Securities or the Common Guarantee Trustee would be entitled except for the provisions of this Article, and no payments over pursuant to the provisions of this Article to or for the benefit of the holders of Preferred Securities by Holders of Common Securities or the Common Guarantee Trustee, shall, as among the Guarantor, its creditors other than holders Preferred Securities and the Holders of Common Securities, be deemed to be a payment or distribution by the Guarantor to or on account of the Guarantee Payments. -194- Section 9.07. Provisions Solely to Define Relative Rights The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of Common Securities to receive Guarantee Payments in the event of an Indenture Event of Default on the one hand and the holders of Preferred Securities to receive Preferred Guarantee Payments in the event of an Indenture Event of Default on the other hand. Other than the subordination provisions applicable under the Indenture and the Subordinated Notes, nothing contained in this Article or elsewhere in this Common Securities Guarantee Agreement or in the Common Securities is intended to or shall (a) impair, as among the Guarantor, its creditors other than holders of Preferred Securities and the Holders of Common Securities, the obligation of the Guarantor, which is absolute and unconditional (and which, subject to the rights under this Article of the holders of Preferred Securities and the subordination provisions of the Indenture and the Subordinated Notes, is intended to rank equally with all other general obligations of the Guarantor), to pay the Guarantee Payments to the Holders of the Common Securities in accordance with this Common Securities Guarantee Agreement as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Guarantor of the Holders of Common Securities and creditors of the Guarantor, as the case may be, other than the holders Preferred Securities; or (c) prevent the Common Guarantee Trustee or the Holder of any Common Securities from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Preferred Securities to receive cash, property and securities otherwise payable or deliverable to the Common Guarantee Trustee or such Holder. Section 9.08.Trustee to Effectuate Subordination Each Holder of Common Securities by such Holder's acceptance thereof authorizes and directs the Common Guarantee Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Common Guarantee Trustee as such Holder's attorney-in-fact for any and all such purposes. Section 9.09. No Waiver of Subordination Provisions No right of any present or future holder of any Preferred Securities to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Guarantor with the terms, provisions and covenants of this Common Securities Guarantee Agreement, regardless of any knowledge thereof any such holder may have or be otherwise charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Preferred Securities may, at any time and from time to time, without the consent of or notice to the Common Guarantee Trustee or the Holders of Common Securities, without incurring responsibility to the Holders of Common Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of Common Securities to the holders of Preferred Securities do any one or more of the following (a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the obligation to make Preferred Guarantee Payments or otherwise amend or supplement in any manner the Preferred Securities Guarantee Agreement; or (b) -195- exercise or refrain from exercising any rights against the Guarantor and any other entity. Section 9.10. Notice to Trustee The Guarantor shall give prompt written notice to a Responsible Officer of the Common Guarantee Trustee of any fact known to the Guarantor which would prohibit the making of any payment to or by the Common Guarantee Trustee in respect of the Guarantee Payments pursuant to the provisions of this Article. Notwithstanding the provisions of this Article or any other provision of this Common Securities Guarantee Agreement, the Common Guarantee Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any Guarantee Payment to or by the Common Guarantee Trustee in respect of the Common Securities pursuant to the provisions of this Article, unless and until a Responsible Officer of the Common Guarantee Trustee shall have received written notice thereof from the Guarantor or a holder or holders of Preferred Securities or from any trustee therefor; and, prior to the receipt of any such written notice, the Common Guarantee Trustee, subject to the provisions of Section 3.02 of this Common Securities Guarantee Agreement, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Common Guarantee Trustee shall have not received the notice provided for in this Section at least two Business Days (as defined in the Indenture) prior to the date upon which by the terms hereof any money may become payable with respect to Guarantee Payments, then, anything herein contained to the contrary notwithstanding, the Common Guarantee Trustee shall have full power and authority to receive such money and to apply the same to the purposes for which they were received, and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date. Subject to the provisions of Section 3.02, the Common Guarantee Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Preferred Securities (or a trustee therefor) to establish that such notice has been given by a holder of Preferred Securities (or a trustee therefor). In the event that the Common Guarantee Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Preferred Securities to participate in any payment or distribution pursuant to this Article, the Common Guarantee Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Common Guarantee Trustee as to the amount of Preferred Securities held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Common Guarantee Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Section 9.11. Reliance on Judicial Order or Certificate of Liquidating Agent Upon any payment or distribution of assets of the Guarantor referred to in this Article, the Common Guarantee Trustee, subject to the provisions of Section 3.02 hereof, and the Holders of Common Securities shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is -196- pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Common Guarantee Trustee or to the Holders of Common Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Preferred Securities and other indebtedness of the Guarantor, as the case may be, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. Section 9.12. Trustee Not Fiduciary for Holders of Preferred Securities With respect to the holders of Preferred Securities, the Common Guarantee Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article, and no implied covenants or obligations with respect to the holders of Preferred Securities shall be read into this Common Securities Guarantee Agreement against the Common Guarantee Trustee. Except with respect to Section 10.04, the Common Guarantee Trustee shall not be deemed to owe any fiduciary duty to the holders of Preferred Securities and shall not be liable to any such holders or creditors if it shall in good faith pay over or distribute to Holders of Common Securities or to the Guarantor or to any other Person cash, property or securities to which any holders of Preferred Securities shall be entitled by virtue of this Article or otherwise. Section 9.13.Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights The Common Guarantee Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Preferred Securities which may at any time be held by it, to the same extent as any other holder of Preferred Securities and nothing in this Common Securities Guarantee Agreement shall deprive the Common Guarantee Trustee of any of its rights as such holder. ARTICLE X. MISCELLANEOUS Section 10.01. Successors and Assigns. All guarantees and agreements contained in this Guarantee Agreement shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Common Securities then outstanding. Section 10.02. Amendments. Except with respect to any changes which do not adversely affect the rights of Holders (in which case no consent of Holders will be required), this Guarantee Agreement may only be amended with the prior approval of the Holders of at least a Majority in liquidation amount of the Common Securities. The provisions of Section 12.2 of the Declaration with respect to meetings of Holders apply to the giving of such approval. -197- Section 10.03. Notices. All notices provided for in this Guarantee Agreement shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, postage prepaid, as follows: (a) if given to the Common Guarantee Trustee at the Common Guarantee Trustee's mailing address set forth below (or such other address as the Common Guarantee Trustee may give notice of to the Holders of the Common Securities): Chase Manhattan Bank and Trust Company, National Association, 101 California Street, Suite 2725, San Francisco, California 94111 Attn: Corporate Trust Administration (b) if given to the Guarantor, at the Guarantor's mailing address set forth below (or such other address as the Guarantor may give notice of to the Holders of the Common Securities): Bergen Brunswig Corporation 4000 Metropolitan Drive, Orange, California Attn : ChIef Legal Officer, with a copy (which shall not constitute notice) to Peter H. Ehrenberg, Esq., Lowenstein Sandler PC, 65 Livingston Avenue, Roseland, New Jersey 07068 (c) if given to any Holder of Common Securities, at the address set forth on the books and records of the Issuer. All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. Section 10.05. Benefit. This Guarantee Agreement is solely for the benefit of the Holders of the Common Securities and subject to Section 3.01(a) is not separately transferable from the Common Securities. Section 10.05. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. -198- THIS GUARANTEE AGREEMENT is executed as of the day and year first above written. BERGEN BRUNSWIG CORPORATION By:____________________________ Name: Title: CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION as Common Guarantee Trustee By:____________________________ Name: Title: By: -199- EX-12.1 11 CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES Exhibit 12.1 BERGEN BRUNSWIG CORPORATION CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES FOR THE THREE MONTHS ENDED DECEMBER 31, 1997 AND 1998 AND THE YEARS ENDED SEPTEMBER 30, 1994, 1995, 1996, 1997 AND 1998 (in thousands, except ratios)
Three Months Ended -------------------- Year Ended September 30, December 31, ----------------------------------------------------- -------------------- 1994 1995 1996 1997 1998 1997 1998 ---- ---- ---- ---- ---- ---- ---- Fixed Charges: Interest and amortization of debt issuance costs $ 25,039 $ 32,800 $ 31,266 $ 31,842 $ 38,616 $ 9,433 $ 8,324 Portion of rental expense representing interest 5,299 5,661 5,946 7,437 8,705 2,175 2,358 ----------------------------------------------------- -------------------- Total fixed charges 30,338 38,461 37,212 39,279 47,321 11,608 10,682 Earnings: Earnings before taxes on income 98,112 109,490 125,270 138,439 65,903 36,164 46,862 ----------------------------------------------------- -------------------- Total earnings $128,450 $147,951 $162,482 $177,718 $113,224 $47,772 $57,544 ========================================= g========= ==================== Ratio of earnings to fixed charges 4.2 3.8 4.4 4.5 2.4 4.1 5.4 ===================================================== ====================
-200- EX-23.2 12 INDEPENDENT AUDITORS' CONSENT Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Bergen Brunswig Corporation on Form S-3 of our report dated October 30, 1998, appearing in the Annual Report on Form 10-K of Bergen Brunswig Corporation for the fiscal year ended September 30,1998, and to the reference to us under the heading "Experts" in the prospectus, which is part of this Registration Statement. DELOITTE & TOUCHE LLP Costa Mesa, California March 8, 1999 -201- EX-24.1 13 POWER OF ATTORNEY Exhibit 24.1 POWER OF ATTORNEY WHEREAS, the undersigned officers and directors of Bergen Brunswig Corporation (the "Company") desire to authorize Robert E. Martini, Donald R. Roden, Neil F. Dimick and Milan A. Sawdei to act as their attorneys-in-fact and agents, for the purpose of executing and filing the registration statements described below, including all amendments and supplements thereto, NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert E. Martini, Donald R. Roden, Neil F. Dimick and Milan A. Sawdei, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to sign the registrant's Registration Statements on Form S-3 pertaining to registration of up to an aggregate of $700 million of senior and subordinated debt securities, including $300 million of trust preferred securities, including any and all amendments and supplements thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, 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 and 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 substitute or substitutes, may lawfully do or cause to be done by virtue hereof. -202- IN WITNESS WHEREOF, the undersigned have executed this power of attorney in the following capacities as of the 26th day of February, 1999. SIGNATURE TITLE --------- ----- /s/ Robert E. Martini Chairman of the Board and Director - ------------------------------ Robert E. Martini /s/ Donald R. Roden President, Chief Executive Officer - ------------------------------ and Director Donald R. Roden /s/ Neil F. Dimick Executive Vice President, Chief Financial - ------------------------------ Officer and Director Neil F. Dimick - ------------------------------ James R. Mellor Director - ------------------------------ Francis G. Rodgers Director - ------------------------------ George R. Liddle Director /s/ Charles J. Lee - ------------------------------ Charles J. Lee Director /s/ Rodney H. Brady - ------------------------------ Rodney H. Brady Director - ------------------------------ Charles C. Edwards, M.D. Director /s/ George E. Reinhardt, Jr. - ------------------------------ George E. Reinhardt, Jr. Director - ------------------------------ Jose E. Blanco, Sr. Director -203- -----END PRIVACY-ENHANCED MESSAGE-----