SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (Date of Earliest Event Reported):
MAY 23, 1995
Commission file number 1-5110
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BERGEN BRUNSWIG CORPORATION
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(Exact name of registrant as specified in its charter)
NEW JERSEY 22-1444512
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4000 Metropolitan Drive, Orange, California 92668-3510
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (714) 385-4000
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EXHIBIT INDEX FOUND ON PAGE 2.
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Item 7(c). Exhibits.
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Exhibit No. Page No.
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1 Underwriting Agreement dated May 23, 1995 4
3 The Restated Certificate of Incorporation dated 35
May 23, 1994
12 Ratio of Earnings to Fixed Charges for the six 47
months ended March 31, 1995 and 1994, the year
ended September 30, 1994, the one month ended
September 30, 1993 and the four years ended
August 31, 1993.
23 Independent Auditors' Consent 48
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BERGEN BRUNSWIG CORPORATION
By: /s/ Neil F. Dimick
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Neil F. Dimick
Executive Vice President,
Chief Financial Officer
Date: May 23, 1995
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EXHIBIT 1
BERGEN BRUNSWIG CORPORATION
Debt Securities
UNDERWRITING AGREEMENT - BASIC PROVISIONS
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May 23, 1995
To: The Underwriters named in
the within-mentioned Terms
Agreement
Dear Sirs:
Bergen Brunswig Corporation, a New Jersey corporation (the "Company"),
proposes to issue and sell up to $400,000,000 aggregate principal amount of its
Debt Securities (the "Securities") in one or more offerings on terms determined
at the time of sale. The Securities will be issued under indentures each dated
as of December 1, 1992, as amended (the "Indentures"), between the Company and
Chemical Trust Company of California, as Trustee. Each issue of Securities may
vary as to aggregate principal amount, maturity date or dates, interest rate or
rates and timing of payments thereof, subordination and redemption provisions
and sinking fund requirements, if any, and any other variable terms which the
applicable Indenture contemplates may be set forth in the Securities as issued
from time to time.
Whenever the Company determines to make an offering of Securities, it will
enter into an agreement substantially in the form of Exhibit A hereto (the
"Terms Agreement") providing for the sale of such Securities to, and the
purchase and offering thereof by, the underwriter or underwriters named therein
(the "Underwriters" or "you", which terms shall include the underwriter or
underwriters named therein whether acting alone in the sale of Securities or as
members of an underwriting syndicate). The Terms Agreement relating to each
offering of Securities shall specify the principal amount of Securities to be
issued and their terms not otherwise specified in the applicable Indenture, the
name or names of the Underwriters participating in such offering (subject to
substitution as provided in Section 10 hereof) and the principal amount of
Securities which each severally agrees to purchase, the name or names of the
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Underwriters acting as manager or co-managers in connection with such offerings,
if any (the "Representatives", which term shall include each Underwriter in the
event that there shall be no manager or co-managers), the price at which the
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, any delayed delivery arrangements, the time and place of
delivery and payment and whether such Securities are to be senior or
subordinated securities. Each offering of Securities will be governed by this
Agreement, as supplemented by the applicable Terms Agreement, and this Agreement
and such Terms Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-55136) relating to
the Securities and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933 (the "1933 Act") and has filed such
amendments thereto as may have been required to the date hereof. Such
registration statement, as amended, has been declared effective by the
Commission, and each Indenture has been qualified under the Trust Indenture Act
of 1939 (the "1939 Act"). Such registration statement, as amended, and the
prospectus relating to the sale of Securities by the Company constituting a part
thereof, including all documents incorporated therein by reference, as from time
to time amended or supplemented pursuant to the Securities Exchange Act of 1934
(the "1934 Act"), the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively; provided, however,
that a supplement of the Prospectus contemplated by Section 3(a) hereof (a
"Prospectus Supplement") shall be deemed to have supplemented the Prospectus
only with respect to the offering of Securities to which it relates.
1. Representations and Warranties. The Company represents and warrants
to you that as of the date hereof, as of the date of the applicable Terms
Agreement and as of the Closing Time, as hereinafter defined, under such Terms
Agreement (in each case, the "Representation Date") as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the 1933 Act.
The Registration Statement, at the time it became effective and upon the
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filing with the Commission of the Company's Current Report on Form 8-K
dated April 24, 1995 (the "8-K Filing Date"), did not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date, did not and will
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter, or on behalf of any Underwriter by the Representatives,
expressly for use in the Registration Statement or Prospectus or to that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of the Trustee
under the Indentures.
(b) The consolidated financial statements included in the
Registration Statement and Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries as at
the dates indicated and the results of their operations for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved, except as indicated therein; and the
supporting schedules included in the Registration Statement present fairly
the information required to be stated therein. The accountants who
certified the financial statements and supporting schedules included in the
Registration Statement and Prospectus are independent public accountants as
required by the 1933 Act and the Regulations thereunder.
(c) To the extent that they constitute a part of the Prospectus, the
documents incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the
rules and regulations thereunder (the "1934 Act Regulations"), and, when
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read together and with the other information in the Prospectus, at the time
the Registration Statement and any amendments thereto became or become
effective and at each Representation Date, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they are made, not
misleading.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business and (B) there have been no material transactions entered into
by the Company or any of its subsidiaries other than those in the ordinary
course of business.
(e) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of New Jersey with
power and authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the character or location of its
properties or the nature or the conduct of its business requires such
qualification, except for any failures to be so qualified or to be in good
standing which, taken as a whole, are not material to the Company and its
subsidiaries considered as one enterprise.
(f) Each subsidiary of the Company listed in Exhibit No. 21 to the
Form 10-K annual report filed by the Company with the Commission under the
1934 Act for the most recent fiscal year ended which is a "significant
subsidiary" as defined in Rule 405 of Regulation C of the rules and
regulations promulgated under the 1933 Act (a "Significant Subsidiary", and
the "Regulations", respectively) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and conduct its business as described
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in the Registration Statement, and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the character or location of its properties or the
nature or the conduct of its business requires such qualification, except
for any failures to be so qualified or to be in good standing which, taken
as a whole, are not material to the Company and its subsidiaries considered
as one enterprise; all of the issued and outstanding shares of capital
stock of each such Significant Subsidiary have been duly authorized and
validly issued and are fully paid and non-assessable; and all of the shares
of capital stock of each such subsidiary are owned by the Company, directly
or through subsidiaries, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(g) Neither the Company nor any of its Significant Subsidiaries is in
violation of its or any of their charters or in default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it or any of them is a party or by
which it or any of them or their properties may be bound; and the execution
of this Agreement, the execution and delivery of the Indentures and the
applicable Terms Agreement (including this Agreement as incorporated by
reference therein), the filing of the Registration Statement and the
consummation of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its Significant Subsidiaries pursuant to,
any material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its Significant
Subsidiaries is a party, or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or, to
the best of its knowledge, any law, administrative regulation or
administrative or court decree; and no consent, approval, authorization or
order of any court or governmental authority or agency is required for the
consummation by the Company of the transactions contemplated by this
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Agreement, except such as may be required under the 1933 Act, the 1939 Act
or the Regulations or state securities or Blue Sky laws.
(h) The Company and its Significant Subsidiaries possess adequate
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except such certificates, authorities or
permits which are not material to such conduct of their business, and
neither the Company nor any of its Significant Subsidiaries has received
any notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit which, singly or in the aggregate, if
the subject of any unfavorable decision, ruling or finding, would
materially adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries
considered as one enterprise.
(i) Except as set forth in the Prospectus, there is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or any of its subsidiaries,
which may be reasonably expected to result in any material adverse change
in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, or may be reasonably expected to materially
and adversely affect the properties or assets thereof or may be reasonably
expected to materially and adversely affect the consummation of this
Agreement and the applicable Terms Agreement, and there are no contracts or
documents of the Company or any of its subsidiaries which are required to
be filed as exhibits to the Registration Statement by the 1933 Act or by
the Regulations which have not been so filed.
(j) The Securities have been duly authorized for issuance and sale
pursuant to this Agreement and the applicable Terms Agreement (or will have
been so authorized prior to each issuance of Securities) and, when issued,
authenticated and delivered pursuant to the provisions of this Agreement
and the applicable Terms Agreement and of the applicable Indenture against
payment of the consideration therefor in accordance with this Agreement and
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the applicable Terms Agreement, the Securities will be valid and legally
binding obligations of the Company enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights or by general equity principles,
and will be entitled to the benefits of the applicable Indenture, which
will be substantially in the form heretofore delivered to you; and the
Securities and the Indentures conform in all material respects to all
statements relating thereto contained in the Prospectus.
(k) The Company and its Significant Subsidiaries own or possess, or
can acquire on reasonable terms, adequate trademarks, service marks and
trade names necessary to conduct the business now operated by them, and
neither the Company nor any of its Significant Subsidiaries has received
any notice of infringement of or conflict with asserted rights of others
with respect to any trademarks, service marks or trade names which, singly,
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially adversely affect the conduct of the business,
operations, financial condition or income of the Company and its
subsidiaries considered as one enterprise.
(l) No labor disturbance by the employees of the Company or any
Significant Subsidiary exists or, to the knowledge of the Company, is
imminent which may be reasonably expected to have a material adverse effect
upon the conduct of the business, or the earnings, operations or condition,
financial or otherwise, of the Company and its subsidiaries considered as
one enterprise.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with an offering
of Securities shall be deemed a representation and warranty by the Company, as
to the matters covered thereby, to each Underwriter.
2. Purchase and Sale. The several commitments of the Underwriters to
purchase Securities pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties herein contained and
shall be subject to the terms and conditions herein set forth.
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Payment of the purchase price for, and delivery of, any Securities to be
purchased by the Underwriters shall be made at the place set forth in the
applicable Terms Agreement, or at such other place as shall be agreed upon by
the Representatives and the Company, on the fifth business day (unless postponed
in accordance with the provisions of Section 10) following the date of the
applicable Terms Agreement or such other time as shall be agreed upon by the
Representatives and the Company (each such time and date being referred to as a
"Closing Time"). Payment shall be made to the Company by certified or official
bank check or checks in New York Clearing House or similar next day funds
payable to the order of the Company against delivery to the Representatives for
the respective accounts of the Underwriters of the Securities to be purchased by
them. Such Securities shall be in such denominations and registered in such
names as the Representatives may request in writing at least two business days
prior to the applicable Closing Time. Such Securities, which may be in
temporary form, will be made available for examination and packaging by the
Representatives on or before the first business day prior to Closing Time.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Exhibit B hereto, with such changes therein as the Company may approve.
As compensation for arranging Delayed Delivery Contracts, the Company will pay
to the Representatives at Closing Time, for the accounts of the Underwriters, a
fee equal to that percentage of the principal amount of Securities for which
Delayed Delivery Contracts are made at Closing Time as is specified in the
applicable Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types which will be set forth in the applicable
Prospectus Supplement. At Closing Time the Company will enter into Delayed
Delivery Contracts (for not less than the minimum principal amount of Securities
per Delayed Delivery Contract specified in the applicable Terms Agreement) with
all purchasers proposed by the Underwriters and previously approved by the
Company as provided below, but not for an aggregate principal amount of
Securities in excess of that specified in the applicable Terms Agreement. The
Underwriters will not have any responsibility for the validity or performance of
Delayed Delivery Contracts.
The Representatives are to submit to the Company, at least three business
days prior to Closing Time, the names of any institutional investors with which
it is proposed that the Company will enter into Delayed Delivery Contracts and
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the principal amount of Securities to be purchased by each of them, and the
Company will advise the Representatives, at least two business days prior to
Closing Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the principal amount of
Securities to be covered by each such Delayed Contracts.
The principal amount of Securities agreed to be purchased by the respective
Underwriters pursuant to the applicable Terms Agreement shall be reduced by the
principal amount of Securities covered by Delayed Delivery Contracts, as to each
Underwriter as set forth in a written notice delivered by the Representatives to
the Company; provided, however, that the total principal amount of Securities to
be purchased by all Underwriters shall be the total amount of Securities covered
by the applicable Terms Agreement, less the principal amount of Securities
covered by Delayed Delivery Contracts.
3. Covenants of the Company. The Company covenants with each Underwriter
as follows:
(a) Immediately following the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Securities covered thereby and their terms not otherwise
specified in the Indenture, the names of the Underwriters and the principal
amount of Securities which each severally has agreed to purchase, the names
of the Representatives, the price at which the Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the Representatives and the
Company deem appropriate in connection with the offering of the Securities.
The Company will promptly transmit copies of the Prospectus Supplement to
the Commission for filing pursuant to Rule 424 of the Regulations and will
furnish to the Underwriters named therein as many copies of the Prospectus
and such Prospectus Supplement as the Representatives shall reasonably
request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities any event shall
occur or condition exist as a result of which it is necessary, in the
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reasonable opinion of counsel for the Underwriters or counsel for the
Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading in the light of circumstances existing at the time it is
delivered to a purchaser or if it shall be necessary, in the reasonable
opinion of either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the Regulations, the Company will promptly
prepare and file with the Commission such amendment or supplement, whether
by filing documents pursuant to the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements.
(c) With respect to each sale of Securities, the Company will make
generally available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, earnings
statements (in form complying with the provisions of Rule 158 under the
1933 Act) covering twelve-month periods beginning, in each case, not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration Statement
relating to such Securities.
(d) From the date of a Terms Agreement, and for so long as a
Prospectus is required to be delivered in connection with the sale of
Securities covered by such Terms Agreement, the Company will give the
Representatives notice of its intention to file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1934 Act, the 1933 Act or otherwise, and will
furnish them with copies of any such amendment or supplement or other
documents proposed to be filed a reasonable time in advance of filing.
(e) From the date of a Terms Agreement, and for so long as a
Prospectus is required to be delivered in connection with the sale of
Securities covered by such Terms Agreement, the Company will notify the
Representatives immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of any supplement to
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the Prospectus or any document to be filed pursuant to the 1934 Act which
will be incorporated by reference into the Registration Statement or
Prospectus, (iii) of the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or any Prospectus
Supplement, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (v) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose. The Company will
make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(f) The Company will deliver to the Representatives as many signed
and conformed copies of the registration statement (as originally filed)
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by reference
in the Prospectus) as the Representatives may reasonably request, and will
also deliver to the Representatives a conformed copy of the Registration
Statement and each amendment thereto for each of the Underwriters.
(g) The Company will endeavor, in cooperation with you, to qualify
the Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions of the United States as the
Representatives may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the
Securities covered by a Terms Agreement; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Securities
have been qualified as provided above.
(h) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required
to be filed with the Commission pursuant to Section 13 or 14 of the 1934
Act.
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(i) Between the date of any Terms Agreement and termination of any
trading restrictions or Closing Time, whichever is later, with respect to
the Securities covered thereby, the Company will not, without the prior
consent of the Representatives, offer or sell, or enter into any agreement
to sell, any debt securities of the Company with a maturity of more than
one year, including additional Securities.
4. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase Securities pursuant to any Terms Agreement are subject
to the accuracy of the representations and warranties on the part of the Company
herein contained, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance by the Company of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, (ii) the rating assigned by any nationally recognized
securities rating agency to any debt securities or preferred shares of the
Company as of the date of the applicable Terms Agreement shall not have
been lowered since the execution of such Terms Agreement and no such agency
shall have publicly announced that it has placed any of such debt
securities or preferred shares under surveillance or review, with possible
negative implications, and (iii) there shall not have come to the attention
of the Representatives any facts that would cause them reasonably to
believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to a purchaser of
the Securities, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in light of the circumstances existing at such time, not misleading.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time, of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C., in form and
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substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of New Jersey.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement.
(iii) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction
in which the character or location of its properties or the
nature or conduct of its business requires such qualification
(except where the failure to so qualify would not have a material
adverse effect on the business, financial condition, earnings or
properties of the Company and its subsidiaries considered as one
enterprise).
(iv) Each Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the state of its incorporation,
has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement, and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the character or location of its properties
or the nature or conduct of its business requires such
qualification (except where the failure to so qualify would not
have a material adverse effect on the business, financial
condition, earnings or properties of the Company and its
subsidiaries considered as one enterprise); all of the issued and
outstanding shares of capital stock of each such Significant
Subsidiary have been duly authorized and validly issued and are
fully paid and non-assessable; and to the best of their knowledge
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all of such shares of capital stock of each such subsidiary are
owned by the Company directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(v) This Agreement, the applicable Terms Agreement, and the
Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(vi) The applicable Indenture has been duly and validly
authorized, executed and delivered by the Company and (assuming
the applicable Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes the valid and binding
agreement of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights or by
general equity principles.
(vii) The Securities covered by the applicable Terms
Agreement are in the form contemplated by the applicable
Indenture, have been duly and validly authorized by all necessary
corporate action and, when executed and authenticated as
specified in the applicable Indenture and delivered against
payment pursuant to this Agreement, as supplemented by the
applicable Terms Agreement, will be valid and binding obligations
of the Company, enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to
or affecting enforcement of creditors' rights or by general
equity principles, and will be entitled to the benefits of the
applicable Indenture.
(viii) The applicable Indenture and the Securities covered by
the applicable Terms Agreement conform in all material respects
to the descriptions thereof in the Prospectus and the applicable
Prospectus Supplement.
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(ix) Each Indenture is qualified under the 1939 Act.
(x) The Registration Statement is effective under the 1933
Act and, to the best of their knowledge and information, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(xi) The Registration Statement (other than the financial
statements and schedules and other financial data included
therein, as to which no opinion need be rendered) complies as to
form in all material respects with the requirements of the 1933
Act, the 1939 Act, and the Regulations, and nothing has come to
the attention of such counsel that would lead them to believe
that at the 8-K Filing Date the Registration Statement contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as
amended or supplemented at the date of the applicable Terms
Agreement or at Closing Time, contains an untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xii) To the extent that such document continues to
constitute part of the Prospectus, each document filed pursuant
to the 1934 Act (other than the financial statements and
schedules and other financial data included therein, as to which
no opinion need be rendered) and incorporated by reference in the
Prospectus, complied when so filed as to form in all material
respects with the 1934 Act and the rules and regulations
thereunder.
(xiii) No consent, approval, authorization or order of any
court or governmental authority or agency is required in
connection with the sale of the Securities to the Underwriters,
except such as may be required under the 1933 Act, the 1939 Act
18
<PAGE>
and state securities laws; and to the best of their knowledge and
information, the execution of this Agreement and the execution
and delivery of the applicable Terms Agreement (including this
Agreement as incorporated by reference therein) and the
applicable Indenture and the consummation of the transactions
contemplated herein and therein will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary pursuant
to, any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any
Significant Subsidiary is a party or by which it or any of them
may be bound or to which any of the property or assets of the
Company or any Significant Subsidiary is subject, nor will such
action result in any violation of the provisions of the charter
or by-laws of the Company, or any law, administrative regulation
or administrative or court decree.
(2) In giving their opinion, Lowenstein, Sandler, Kohl, Fisher &
Boylan, P.C., may rely (a) as to matters of New York law, on the
opinion of Wilkie, Farr & Gallagher in which case their opinion shall
state that they are doing so and that they believe that they are
justified in relying on such opinion and a copy of such opinion shall
be attached to their opinion; (b) as to matters of Alabama law, on the
opinion of Rushton, Stakely, Johnston & Garrett in which case their
opinion shall state that they are doing so and that they believe that
they are justified in relying on such opinion and a copy of such
opinion shall be attached to their opinion; and (c) as to factual
matters, on certificates of officers of the Company and of state
officials, in which case their opinion shall state that they are doing
so and copies of such certificates shall be attached to their opinion
unless such certificates or the information therein has been furnished
to you in other form.
(3) The favorable opinion or opinions, dated as of the
applicable Closing Time, of Mayer, Brown & Platt, counsel for the
Underwriters, with respect to the matters set forth in (i) and (v) to
19
<PAGE>
(xi), inclusive, of subsection (b)(1) of this Section. In giving
their opinion, Mayer, Brown & Platt may rely, as to matters of New
Jersey law, upon the opinion of Lowenstein, Sandler, Kohl, Fisher &
Boylan, P.C.
(c) At the applicable Closing Time there shall not have been, since
the date of the applicable Terms Agreement or since the respective dates as
of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, of the Company and
its subsidiaries considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, and you shall have received a certificate of the Chairman of
the Board, President or a Senior Vice President of the Company and of the
Chief Financial Officer and Chief Accounting Officer or Treasurer of the
Company, dated as of such Closing Time, to the effect that there has been
no such material adverse change and to the effect that the representations
and warranties of the Company contained in Section 1 are true and correct
as of the Closing Time.
(d) You shall have received from Deloitte & Touche letters, dated as
of the applicable Terms Agreement and as of the Closing Time, in form and
substance satisfactory to the Representatives, to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and
the Regulations.
(ii) In their opinion, the consolidated financial statements and
supporting schedules of the Company and its subsidiaries examined by
them and included or incorporated by reference in the Registration
Statement, to the extent that they continue to constitute part of the
Registration Statement, comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
Regulations with respect to registration statements on Form S-3 and
the 1934 Act and the 1934 Act Regulations.
20
<PAGE>
(iii) They have performed specified procedures, not constituting
an audit, including a reading of the latest available interim
financial statements of the Company and its subsidiaries, a reading of
the minute books of the Company and such subsidiaries since the end of
the most recent fiscal year with respect to which an audit report has
been issued, inquiries of and discussions with certain officials of
the Company and such subsidiaries responsible for financial and
accounting matters with respect to the unaudited consolidated
financial statements included in the Registration Statement and
Prospectus and the latest available interim unaudited financial
statements of the Company and its subsidiaries, and such other
inquiries and procedures as may be specified in such letter, and on
the basis of such inquiries and proceedings nothing came to their
attention that caused them to believe that: (A) any unaudited
consolidated financial statements of the Company and its subsidiaries
included in the Registration Statement and Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations or were not
fairly presented in conformity with generally accepted accounting
principles in the United States applied on a basis substantially
consistent with that of the audited financial statements included
therein, or (B) at a specified date not more than five days prior to
the date of such letter there was any change in the consolidated
capital stock or any increase in consolidated long-term debt of the
Company and its subsidiaries or any decrease in the consolidated net
assets of the Company and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated balance sheet
of the Company and its subsidiaries included in the Registration
Statement and Prospectus or, during the period from the date of such
balance sheet, to a specified date not more than five days prior to
the date of such letter, there were any decreases, as compared with
the corresponding period in the preceding year, in consolidated
revenues or net income of the Company and its subsidiaries, except in
each such case as set forth in or contemplated by the Registration
Statement and Prospectus or except for such exceptions enumerated in
such letter as shall have been agreed to by you and the Company.
21
<PAGE>
(iv) In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement
and the Prospectus, and the limited procedures referred to in clause
(iii) above), they have carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus
and which are specified by you, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
(e) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 5.
5. Payment of Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement and each Terms
Agreement, including (i) the printing and filing of the registration statement
(as originally filed) and all amendments thereto, (ii) the preparation, issuance
and delivery of the Securities to the Underwriters, (iii) the fees and
disbursements of the Company's counsel and accountants, (iv), the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(g), including filing fees and the fees and disbursements of counsel
22
<PAGE>
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey and Legal Investment Survey, (v) the printing
and delivery to the Underwriters in quantities as hereinabove stated of copies
of the registration statement (as originally filed) and any amendments thereto,
and of the Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of the Indentures and any
Blue Sky Survey and Legal Investment Survey, (vii) the fees of rating agencies,
(viii) the fees and expenses, if any, incurred in connection with the listing of
the Securities on any securities exchange, and (ix) the fees, if any, of the
National Association of Securities Dealers, Inc.
If a Terms Agreement is terminated by the Representatives in accordance
with the provisions of Section 4 or Section 9(i), the Company shall reimburse
the Underwriters named in such Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters incurred in connection with such Terms Agreement.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives expressly
23
<PAGE>
for use in the Registration Statement (or any amendment thereto) or
any preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto);
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred,
(including the fees and disbursements of counsel chosen by you)
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any
preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
24
<PAGE>
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event
shall the indemnifying parties be liable for the fees and expenses of more
than one counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
7. Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Section 6 is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
one or more of the Underwriters in such proportions as will reflect the relative
benefits from the offering of such Securities received by the Company on the one
hand and by the Underwriters on the other hand, provided that if the Securities
are offered by Underwriters at an initial public offering price set forth in a
Prospectus Supplement, the relative benefits shall be deemed to be such that the
Underwriters shall be responsible for that portion of the aggregate losses,
liabilities, claims, damages and expenses represented by the percentage that the
underwriting discount appearing in such Prospectus Supplement bears to the
initial public offering price appearing therein and the Company shall be
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
25
<PAGE>
8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect regardless of any
termination of the applicable Terms Agreement (including this Agreement as
incorporated by reference therein), or any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Securities to the Underwriters.
9. Termination. The Representatives may terminate the applicable Terms
Agreement (including this Agreement, as incorporated by reference therein),
immediately upon notice to the Company, at any time at or prior to the
applicable Closing Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, of the Company and its subsidiaries considered as one enterprise,
or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or crisis
the effect of which on the financial markets of the United States is such as to
make it, in the judgment of the Representatives, impracticable to market the
Securities or enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended by the Commission or
a national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities. In the event of any
such termination, (x) the covenants set forth in Section 3 with respect to any
offering of Securities purchased from the Company pursuant to the applicable
Terms Agreement and (y) the covenant set forth in Section 3(c), the provisions
of Section 5, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7, and the provisions of Sections 8 and 13 shall
remain in effect.
26
<PAGE>
10. Default. If one or more of the Underwriters shall fail at the
applicable Closing Time to purchase the Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, during such 24 hours you shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligations under the applicable Terms
Agreement (including this Agreement as incorporated by reference therein)
bear to the underwriting obligations of all such non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
pursuant to such Terms Agreement, such Terms Agreement (including this
Agreement as incorporated by reference therein) shall terminate, without
any liability on the part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
the applicable Terms Agreement or this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either the Representatives or the Company shall have the right
to postpone the applicable Closing Time for a period not exceeding seven days in
order that any required changes in the Registration Statement, Prospectus or
applicable Prospectus Supplement, or in any other documents or arrangements, may
be effected.
27
<PAGE>
11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to you as provided in the applicable Terms Agreement. Notices to the
Company shall be directed to it at 4000 Metropolitan Drive, Orange, California
92668-3510, attention of Milan A. Sawdei, Executive Vice President, Chief Legal
Officer and Secretary.
12. Parties. The applicable Terms Agreement and this Agreement shall
inure to the benefit of and be binding upon the Underwriters and the Company,
and their respective successors. Nothing expressed or mentioned in the
applicable Terms Agreement or this Agreement is intended or shall be construed
to give any person, firm or corporation, other than the parties hereto or
thereto and their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of the applicable Terms Agreement or this Agreement or any provision
therein and herein contained. The applicable Terms Agreement and this Agreement
and all conditions and provisions thereof and hereof are intended to be for the
sole and exclusive benefit of the parties and their respective successors and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
13. Governing Law. This Agreement and each Terms Agreement shall be
governed by the laws of the State of New York.
Very truly yours,
BERGEN BRUNSWIG CORPORATION
By:___________________________________
Title:________________________________
28
<PAGE>
EXHIBIT A
BERGEN BRUNSWIG CORPORATION
Debt Securities
TERMS AGREEMENT
---------------
To: Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, California 92668-3510
Dear Sirs:
We understand that Bergen Brunswig Corporation, a New Jersey corporation
(the "Company"), proposes to issue and sell $___________ aggregate principal
amount of its Debt Securities. Subject to the terms and conditions set forth
herein or incorporated by reference herein, the underwriter named below (the
"Underwriter") hereby offers to purchase such Securities.
The Securities to be purchased by the Underwriter, which are to be issued
under a Senior Indenture dated as of December 1, 1992 between the Company and
Chemical Trust Company of California as Trustee shall have the following terms:
Title:
Date of Maturity:
Interest Rate:
Interest Payment Dates:
Date From Which Interest Accrues:
Public Offering Price:
Purchase Price:
Redemption Provisions:
29
<PAGE>
EXHIBIT A
Sinking Fund Provisions:
Delayed Delivery Contracts:
Closing Date and Location:
Manager or Co-Managers:
Current Ratings:
All of the provisions contained in the document entitled "Bergen Brunswig
Corporation Debt Securities, Underwriting Agreement - Basic Provisions," dated
as of January 14, 1993, a copy of which is attached hereto as Annex A, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein. Terms defined in such document are used herein as therein
defined. Each Underwriter severally agrees, subject to the terms and provisions
of this Terms Agreement, including the terms and provisions incorporated by
reference herein, to purchase from the Company the principal amount of
Securities set forth opposite its name.
PRINCIPAL
AMOUNT OF
NAME SECURITIES
---- ----------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to: ;
Attention: __________________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Representative(s)]
By:
Accepted:
30
<PAGE>
EXHIBIT A
Bergen Brunswig Corporation
By:
31
<PAGE>
EXHIBIT B
BERGEN BRUNSWIG CORPORATION
Debt Securities
DELAYED DELIVERY CONTRACT
-------------------------
Dated: ___________, 199__
Bergen Brunswig Corporation
c/o ___________________
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Bergen Brunswig Corporation
(the "Company"), and the Company agrees to sell to the undersigned on , 1993,
(the "Delivery Date"), $ principal amount of the Company's due , 19
(the "Securities"), offered by the Company's Prospectus dated December 10, 1993,
as supplemented by its Prospectus Supplement dated ______________, receipt of
which is hereby acknowledged, at a purchase price of % of the principal
amount thereof, plus accrued interest from , 1993, to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds, at the office of [name and
address of Representatives], on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned in definitive
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
32
<PAGE>
EXHIBIT B
undersigned is subject and (2) the Company, on or before , 199__,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated _________, 199__ between the Company and the Underwriters.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of $ and
that the acceptance of any Delayed Delivery Contract is in the Company's sole
discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance on a copy hereof and mail
or deliver a signed copy hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
33
<PAGE>
EXHIBIT B
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
----------------------------------
(Name of Purchaser)
By________________________________
(Title)
----------------------------------
----------------------------------
(Address)
Accepted as of the date
first above written.
Bergen Brunswig Corporation
By________________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed is as follows:
(Please print.)
Name Telephone No. (Including Area Code)
---- -------------
34
Exhibit 3
RESTATED CERTIFICATE OF INCORPORATION
OF
BERGEN BRUNSWIG CORPORATION
Pursuant to the provisions of Section 14A:9-5(2) of the New Jersey
Business Corporation Act, the undersigned Corporation adopts the following
Restated Certificate of Incorporation:
ARTICLE I
The name of the Corporation is Bergen Brunswig Corporation.
ARTICLE II
The address of the current registered office in this State is 28 West
State Street, in the City of Trenton, County of Mercer.
ARTICLE III
The name of the current registered agent therein and in charge thereof
upon whom process against this Corporation may be served is Corporation Trust
Company.
ARTICLE IV
The number of directors constituting the current board of directors is
11. The names and addresses of the current directors are as follows:
Jose E. Blanco, Sr. George R. Liddle
J.M. Blanco, Inc. 595 Oakfield Lane
Lot 21 D Street Menio Park, CA 94025
Amelia Industrial Park
Guaynabo, PR 00965
Dr. Rodney H. Brady Robert E. Martini
Bonneville Bergen Brunswig Corporation
International Corporation 4000 Metropolitan Drive
Broadcast House Orange, CA 92668-3510
Salt Lake City, UT 84180
John Calasibetta James R. Mellor
13 Main Street General Dynamics Corporation
Stillwater, NJ 07875 3190 Fairview Park Drive
Falls Church, VA 22042
35
<PAGE>
Charles C. Edwards, M.D. George E. Reinhardt, Jr.
Scripps Clinic & 1709 Dalton Road
Research Foundation Palos Verdes Estates
10666 No. Torrey Pines Road Palos Verdes, CA 90274
La Jolla, CA 92037
Charles J. Lee Francis G. Rodgers
Smith Barney Shearson Inc. 159 Pear Tree Point Road
350 California St, 20th Floor Darien, CT 06820
San Francisco, CA 94104
Dwight A. Steffensen
Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, CA 92668-3510
ARTICLE V
The objects for which this Corporation is formed are to engage in any
activity for which corporations may be organized under the New Jersey Business
Corporation Act.
ARTICLE VI
The total authorized capital stock of the Corporation shall be
103,000,000 shares consisting of
1. 3,000,000 shares of Preferred Stock without nominal
or par value; and
2. 100,000,000 shares of Class A Common Stock, par
value $1.50 per share.
Shares of authorized capital stock of each class may be issued for such
consideration (not less than the par value thereof in the case of stock with par
value) as may be determined from time to time by the Board of Directors.
The voting powers and designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
restrictions, or limitations thereof are as follows:
A. Preferred Stock. The Board of Directors is hereby authorized to
divide the preferred stock into one or more series, to determine the designation
of and the number of shares of any series, to determine the relative rights,
preferences and limitations of the shares of any class or of any series. All
those determinations may be made by an amendment to this Certificate of
Incorporation adopted by the Board of Directors. That amendment may fix the
designations, preferences and relative participating, optional and other special
rights and the qualifications, limitations and restrictions of such series,
including the following:
36
<PAGE>
1. The number of shares constituting that series;
2. The rate and times at which, and the terms and conditions on
which, dividends on preferred stock of that series will be paid;
3. Provisions making dividends payable with respect to preferred
stock of that series cumulative, non-cumulative or partially cumulative;
4. Provisions making dividends payable with respect to the preferred
stock of that series fully participating, partially participating, or
non-participating, and payable on a parity with, subordinate or in preference to
the dividends payable on any other class or series;
5. The right, if any, of the holders of the preferred stock of that
series to convert the same into, or exchange the same for, shares of other
classes or series of stock of the Corporation and the terms and conditions of
that conversion or exchange, including provision for adjustment of the
conversion price or rate in such events as the Board of Directors shall
determine;
6. The redemption price or prices, if any, and the time or times at
which, and the terms and conditions on which, preferred stock of that series may
be redeemed;
7. The rights of the holders of preferred stock of that series upon
the voluntary or involuntary dissolution, liquidation or winding up of the
Corporation;
8. The terms or amounts of any sinking fund provided for the purchase
or redemption of the preferred stock of that series; and
9. Provisions giving the preferred stock of that series special,
limited, multiple or no voting rights and specifying those voting rights, if
any.
B. Common Stock.
1. Dividends. Subject to the preferences and other rights of the
preferred stock as may be fixed in the amendment to this Certificate of
Incorporation, dividends (payable in cash, stock or otherwise) may be declared
and paid out of funds legally available therefor upon any class of common stock
from time to time as may be determined by the Board of Directors.
Notwithstanding anything in this Certificate of Incorporation to the contrary,
however, those dividends may be declared and paid whether or not the net assets
of the Corporation remaining after such dividend payment are less than the
aggregate amount of the preferences of outstanding shares in the assets of the
Corporation upon liquidation.
2. Rights Upon Liquidation, Dissolution, or Winding Up. In the event
of any liquidation, dissolution, or winding up of the affairs of the
Corporation, after payment to the holders of preferred stock of the full amounts
to which they have a liquidation preference, the holders of all classes of
common stock shall be entitled to share ratably per share without regard to
class in all assets then remaining subject to distribution to the stockholders.
37
<PAGE>
C. Voting Rights. At every meeting of the stockholders of the
Corporation, every holder of Class A Common Stock shall be entitled to one (1)
vote per share.
1. Election and Removal of Directors. The Board of Directors of the
Corporation shall consist of not more than 15 directors nor less than 9
directors, the exact number of directors within such limits to be fixed by the
Board of Directors as provided in the By-Laws. All directors shall serve until
their successors shall have been duly elected and shall have qualified.
Elections of directors need not be by ballot unless the By-Laws shall so
provide.
(a) Persons holding Class A Common Stock shall be entitled to elect
the directors. Those directors shall be divided into three classes, each
class to be as nearly equal to the other in number as possible and the
number of directors in each class to be specified in the By-Laws. At each
annual meeting of the stockholders of the Corporation, the number of
directors equal to the number of the class whose term expires at the meeting
shall be elected to hold office until the third succeeding annual meeting.
(b) Any director may be removed at any time, either for or without
cause, by, and only by, the holders of record of Class A Common Stock voting
at a meeting of such stockholders called for the purpose; any vacancy thus
created may be filled at such meeting; and any vacancy caused by the death
or resignation of a director elected by holders of Class A Common Stock may
be filled only by holders of Class A Common Stock at a meeting called for
that purpose, or by a majority of the remaining directors elected by those
holders.
2. General Matters. Any resolution, motion or corporate action which
shall require the vote of the stockholders, other than one relating to the
election of directors, may be validly adopted, authorized or approved by the
affirmative vote of a majority of the votes cast by the holders of the Class A
Common Stock voting at that meeting.
D. Fractional Shares. The Corporation shall not be required to issue
any fractions of shares of Class A Common Stock. If any interest in a
fractional share of Class A Common Stock would otherwise be deliverable upon
payment of any stock dividend or in connection with any stock split or
combination, or upon conversion of any share or shares of preferred stock or
other convertible security, the Corporation shall make adjustment for that
fractional share interest by payment of an amount in cash equal to the same
fraction of the market value of a full share of Class A Common Stock of the
Corporation. For that purpose, the market value of a share of Class A Common
Stock shall be the last recorded sale price regular way of a share of that stock
on the principal national securities exchange on which the Class A Common Stock
is listed or admitted to trading on the record date for that stock dividend or
the last trading day before that stock split or combination shall become
effective or the last trading day before shares of preferred stock or other
convertible security are surrendered for conversion, or if there be no recorded
sale price regular way on such day, the last quoted bid price per share of the
Class A Common Stock on that exchange at the close of trading on that date. If
the Class A Common Stock shall not at such time be traded on a national
securities exchange, the market value of the Class A Common Stock shall be the
then prevailing market price of that stock on any other securities exchange or
in the over-the-counter market, as determined by the Corporation, which
determination shall be conclusive.
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<PAGE>
E. Preemptive Rights. No holder of stock of any class of the
Corporation shall have any preemptive right, as such stockholder, to purchase or
subscribe for, or to receive rights or warrants to purchase or subscribe for,
any shares of any class of stock of the Corporation, whether now or hereafter
authorized, which the Corporation may issue or sell, or any obligations which
the Corporation may issue or sell that shall be convertible into, or
exchangeable for, any shares of any class of stock of the Corporation.
F. Series A Junior Participating Preferred Stock. Pursuant to the
authority set forth in Article VI, Section A, the Board of Directors created a
series of Preferred Stock by resolution adopted on February 8, 1994. The
designation and amount thereof and the voting powers, preferences and relative
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" and the number of
shares constituting such series shall be 400,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Junior Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred Stock in preference
to the holders of Class A Common Stock, par value $1.50 per share (the "Class A
Common Stock") shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and
December in each year (each such dated being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend
payable in shares of Class A Common Stock or a subdivision of the outstanding
shares of Class A Common Stock (by reclassification or otherwise), declared on
the Class A Common Stock since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the Corporation shall at any time
after February 18, 1994 (the "Rights Declaration Date") (i) declare any dividend
on the Common Stock payable in shares of Class A Common Stock, (ii) subdivide
the outstanding Class A Common Stock, or (iii) combine the outstanding Class A
Common Stock into a smaller number of shares, then in each such case the amount
to which holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Class A Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of A Common Stock that were outstanding immediately prior to such event.
39
<PAGE>
(B) The Corporation shall declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in Paragraph (A) above
immediately after it declares a dividend or distribution on the Class A Common
Stock (other than a dividend payable in shares of Class A Common Stock);
provided that, in the event no dividend or distribution shall have been declared
on the Class A Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend
of $1.00 per share on the Series A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A Junior Participating Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date of the determination of
holders of shares of Series A Junior Participating Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Junior
Participating Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of holders of
shares of Series A Junior Participating Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date shall
be no more than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Junior Participating Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on the Common Stock
payable in shares of Class A Common Stock, (ii) subdivide the outstanding Class
A Common Stock, or (iii) combine the outstanding Class A Common Stock into a
smaller number of shares, then in each such case the number of votes per share
to which holders of shares of Series A Junior Participating Preferred Stock were
entitled, immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares of Class A
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Class A Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Junior Participating Preferred Stock and the holders of
shares of Class A Common Stock and any other capital stock of the Corporation
having general rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C)(i) If at any time dividends on any Series A Junior Participating
Preferred Stock shall be in arrears in an amount equal to six (6) quarterly
40
<PAGE>
dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for all previous
quarterly dividend periods and for the current quarterly dividend period on
all shares of Series A Junior Participating Preferred Stock then outstanding
shall have been declared and paid or set apart for payment. During each
default period, all holders of Preferred Stock (including holders of the
Series A Junior Participating Preferred Stock) with dividends in arrears in
an amount equal to six (6) quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to elect two (2) Directors.
(ii) During any default period, such voting right of the holders of
Series A Junior Participating Preferred Stock may be exercised initially at
a special meeting called pursuant to subparagraph (iii) of this Section 3(C)
or at any annual meeting of stockholders, and thereafter at annual meetings
of stockholders, provided that neither such voting right nor the right of
the holders of any other series of Preferred Stock, if any, to increase, in
certain cases, the authorized number of Directors shall be exercised unless
the holders of ten percent (10%) in number of shares of Preferred Stock
outstanding shall be present in person or by proxy. The absence of a quorum
of the holders of Common Stock shall not affect the exercise by the holders
of Preferred Stock of such voting right. At any meeting at which the
holders of Preferred Stock shall exercise such voting right initially during
an existing default period, they shall have the right, voting as a class, to
elect Directors to fill such vacancies, if any, in the Board of Directors as
may then exist up to two (2) Directors or, if such right is exercised at any
annual meeting, to elect two (2) Directors. If the number which may be so
elected at any special meeting does not amount to the required number, the
holders of the Preferred Stock shall have the right to make such increase in
the number of Directors as shall be necessary to permit the election by them
of the required number. After the holders of the Preferred Stock shall have
exercised their right to elect Directors in any default period and during
the continuance of such period, the number of Directors shall not be
increased or decreased except by vote of the holders of Preferred Stock as
herein provided or pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series A Junior Participating Preferred
Stock.
(iii) Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors,
the Board of Directors may order, or any stockholder or stockholders owning
in the aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series, may request,
the calling of a special meeting of the holders of Preferred Stock, which
meeting shall thereupon be called by the President, a Vice-President or the
Secretary of the Corporation. Notice of such meeting and of any annual
meeting at which holders of Preferred Stock are entitled to vote pursuant to
this Paragraph (C)(iii) shall be given to each holder of record of Preferred
Stock by mailing a copy of such notice to him at his last address as the
same appears on the books of the Corporation. Such meeting shall be called
for a time not earlier than 20 days and not later than 60 days after such
order or request or in default of the calling of such meeting within 60 days
after such order or request, such meeting may be called on similar notice by
any stockholder or stockholders owning in the aggregate not less than ten
percent (10%) of the total number of shares of Preferred Stock outstanding.
Notwithstanding the provisions of this Paragraph (C)(iii), no such special
meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of the stockholders.
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<PAGE>
(iv) In any default period, the holders of Class A Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to
be entitled to elect the whole number of Directors until the holders of
Preferred Stock shall have exercised their right to elect two (2) Directors
voting as a class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in office until
their successors shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the Board of
Directors may (except as provided in Paragraph (C)(ii) of the Section 3) be
filled by vote of a majority of the remaining Directors theretofore elected
by the holders of the class of stock which elected the Director whose office
shall have become vacant. References in this Paragraph (C) to Directors
elected by the holders of a particular class of stock shall include
Directors elected by such Directors to fill vacancies as provided in clause
(y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right
of the holders of Preferred Stock as a class to elect Directors shall cease,
(y) the term of any Directors elected by the holders of Preferred Stock as a
class shall terminate, and (z) the number of Directors shall be such number
as may be provided for the certificate of incorporation or by-laws
irrespective of any increase made pursuant to the provisions of Paragraph
(C)(ii) of this Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the certificate of
incorporation or by-laws). Any vacancies in the Board of Directors effected
by the provisions of clauses (y) and (z) in the preceding sentence may be
filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Class A Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably on the Series A
Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the Corporation may at any time
42
<PAGE>
redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior (either
as to dividends or upon dissolution, liquidation or winding up) to the
Series A Junior Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Junior Participating Preferred Stock, or any Shares of stock
ranking on a parity with the Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such shares upon
such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under Paragraph (A) of the Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation. Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior Participating Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Class A Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph (C) below to reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Class A Common Stock) (such number in
clause (ii), the "Adjustment Number"). Following the payment of the full amount
of the Series A Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of Series A Junior Participating Preferred Stock and
Class A Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Class A Common Stock shall receive
their ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such Preferred Stock
and Class A Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Junior Participating Preferred Stock,
43
<PAGE>
then such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences. In the
event, however, that there are not sufficient assets available to permit payment
in full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Class A Common A Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Class A Common Stock payable in
shares of Class A Common Stock, (ii) subdivide the outstanding Class A Common
Stock, or (iii) combine the outstanding Class A Common Stock into a smaller
number of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such Adjustment
Number by a fraction the numerator of which is the number of shares of Class A
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Class A Common Stock that were outstanding
immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Class A Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case the shares
of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Class A Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Class A Common Stock payable in
shares of Class A Common Stock, (ii) subdivide the outstanding Class A Common
Stock, or (iii) combine the outstanding Class A Common Stock into a smaller
number of the shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Class A
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Class A Common Stock that were outstanding
immediately prior to such event.
Section 8. No Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating Preferred Stock
shall rank junior to all other series of the Corporation's Preferred Stock as to
the payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. Amendment. The Restated Certificate of Incorporation of
the Corporation shall not be further amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Junior Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or more of the
outstanding shares of Series A Junior Participating Preferred Stock, voting
separately as a class.
Section 11. Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall entitle the
holder, in proportion to such holders fractional shares, to exercise voting
44
<PAGE>
rights, receive dividends, participate in distributions and to have the benefit
of all other rights of holders of Series A Junior Participating Preferred Stock.
ARTICLE VII
Every person who is or was a director, officer, employee, or agent of
the Corporation, or of any corporation which he served as such at the request of
the Corporation, shall be indemnified by the Corporation to the fullest extent
permitted by law against all expenses and liabilities reasonably incurred by or
imposed upon him, in connection with any proceeding to which he may be made, or
threatened to be made, a party, or in which he may become involved by reason of
his being or having been a director, officer, employee or agent of the
Corporation, or of such other corporation, whether or not he is a director,
officer, employee or agent of the Corporation, or such other corporation, at the
time the expenses or liabilities are incurred.
ARTICLE VIII
So long as permitted by law, no director of the Corporation shall be
personally liable to the Corporation or its shareowners for damages for breach
of any duty owed by such person to the Corporation or its shareowners; provided,
however, that this Article VIII shall not relieve any person from liability to
the extent provided by applicable law for any breach of duty based upon an act
or omission (a) in breach of such person's duty of loyalty to the Corporation or
its shareowners, (b) not in good faith or involving a knowing violation of law
or (c) resulting in receipt by such person of an improper personal benefit. No
amendment to or repeal of this Article VIII and no amendment, repeal or
termination of effectiveness of any law authorizing this Article VIII shall
apply to or have any effect on the liability or alleged liability of any
director for or with respect to any acts or omissions of such director occurring
prior to such amendment, repeal or termination of effectiveness.
ARTICLE IX
So long as permitted by law, no officer of the Corporation shall be
personally liable to the Corporation or its shareowners for damages for beach of
any duty owed by such person to the Corporation or its shareowners; provided,
however, that this Article IX shall not relieve any person from liability to the
extent provided by applicable law for any breach of duty based upon an act or
omission (a) in breach of such person's duty of loyalty to the Corporation or
its shareowners, (b) not in good faith or involving a knowing violation of law
or (c) resulting in receipt by such person of an improper personal benefit. No
amendment to or repeal of this Article IX and no amendment, repeal or
termination of effectiveness of any law authorizing this Article IX shall apply
to or have any effect on the liability or alleged liability of any officer for
or with respect to any acts or omissions of such officer occurring prior to such
amendment, repeal or termination of effectiveness.
__________________________
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The foregoing Restated Certificate of Incorporation has been executed
on behalf of Bergen Brunswig Corporation this 23rd day of May, 1994.
BERGEN BRUNSWIG CORPORATION
By: /s/ Robert E. Martini
-------------------------------------
Robert E. Martini, Chairman
ATTEST:
/s/ Milan A. Sawdei
------------------------------------
Milan A. Sawdei, Secretary
46
<TABLE>
Exhibit 12
BERGEN BRUNSWIG CORPORATION
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE SIX MONTHS ENDED MARCH 31, 1995 AND 1994, THE YEAR ENDED SEPTEMBER 30, 1994,
THE ONE MONTH ENDED SEPTEMBER 30, 1993 AND THE FOUR YEARS ENDED AUGUST 31, 1993
(In thousands, except ratios)
<CAPTION>
Six Months Ended Year One Month
March 31, Ended Ended Years Ended August 31,
------------------- September 30, September 30, -----------------------------------------
1995 1994 1994 1993 1993 1992 1991 1990
-------- -------- ------------ ----------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest and amortization of
issuance costs............... $ 15,526 $ 12,437 $ 25,039 $ 1,756 $ 27,085 $ 15,476 $ 14,528 $ 12,197
Portion of rental expense
representing interest........ 2,906 2,658 5,299 428 5,495 4,935 5,281 5,304
-------- -------- -------- ------- -------- -------- -------- --------
Total fixed charges........ 18,432 15,095 30,338 2,184 32,580 20,411 19,809 17,501
Earnings:
Earnings from continuing
operations before taxes on
income....................... 54,161 43,806 98,112 2,635 48,260 83,470 89,626 86,755
-------- -------- -------- ------- -------- -------- -------- --------
Total earnings............. $ 72,593 $ 58,901 $128,450 $ 4,819 $ 80,840 $103,881 $109,435 $104,256
======== ======== ======== ======= ======== ======== ======== ========
Ratio of earnings to
fixed charges.................. 3.9 3.9 4.2 2.2 2.5 5.1 5.5 6.0
======== ======== ======== ======= ======== ======== ======== ========
</TABLE>
47
Exhibit 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement
Nos. 2-54345, 2-63803, 2-75715, 2-88474, 2-96491 and 33-32465 on Form
S-8 and in Registration Statement No. 33-55136 on Form S-3 of our report
dated October 31, 1994, except for Note 14, as to which the date is
January 26, 1995, appearing in the Current Report on Form 8-K of Bergen
Brunswig Corporation dated April 24, 1995.
/s/ Deloitte & ToucheLLP
--------------------------
Costa Mesa, California
May 23, 1995
48
