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