SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 20, 1999
BERGEN BRUNSWIG CORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 1-5110 22-1444512
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
4000 Metropolitan Drive, Orange, California 92868
(Address of principal executive offices) (ZIP code)
Registrant's telephone number, including area code: (714) 385-4000
________________________________________________________________________
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
On May 20, 1999, Bergen Capital Trust I (the "Trust") and Bergen entered into an
Underwriting Agreement, dated May 20, 1999, among Bergen, the Trust and the
Underwriters named therein. The Underwriting Agreement provides for the issuance
by the Trust of $300,000,000 aggregate liquidation amount of its 7.80% Trust
Originated Preferred Securities (the "Preferred Securities") at a public
offering price of $25 per Preferred Security. The Preferred Securities are
guaranteed by Bergen to the extent described in Bergen's and the Trust's
Prospectus Supplement dated May 20, 1999. The Trust intends to invest the
proceeds from such sale, together with the proceeds from the sale of its common
securities to Bergen, in $309,278,350 aggregate principal amount of 7.80%
Subordinated Deferrable Interest Notes due 2039 of Bergen. The parties
anticipate that the closing will occur on May 26, 1999.
Item 7. Exhibits
1.1 Underwriting Agreement - Basic Provisions with Terms Agreement attached,
each dated May 20, 1999, among Bergen, the Trust and the Underwriters
named therein.
5.1 Opinion of Lowenstein Sandler PC regarding the validity of the Debt
Securities and Bergen's Guarantees of the Preferred Securities.
5.2 Opinion of Richards, Layton & Finger, P.A. regarding the validity of the
Preferred Securities.
8.1 Opinion of Lowenstein Sandler PC regarding tax matters.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BERGEN BRUNSWIG CORPORATION
(Registrant)
DATE: May 21, 1999 By: /s/ Neil F. Dimick
____________________________
Name: Neil F. Dimick
Title: Executive Vice President and
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
EXHIBIT
1.1 Underwriting Agreement - Basic Provisions with Terms Agreement attached,
each dated May 20, 1999, among Bergen, the Trust and the Underwriters
named therein.
5.1 Opinion of Lowenstein Sandler PC regarding the validity of the Debt
Securities and Bergen's Guarantees of the Preferred Securities.
5.2 Opinion of Richards, Layton & Finger, P.A. regarding the validity of the
Preferred Securities.
8.1 Opinion of Lowenstein Sandler PC regarding tax matters.
EXHIBIT 1.1
BERGEN BRUNSWIG CORPORATION
(a New Jersey corporation)
BERGEN CAPITAL TRUST I
7.80% Trust Originated Preferred SecuritiesSM ("TOPrSSM")
(liquidation amount $25 per preferred security)
guaranteed by
Bergen Brunswig Corporation
TERMS AGREEMENT
Dated: May 20, 1999
Bergen Brunswig Corporation
Bergen Capital Trust I
4000 Metropolitan Drive
Orange, California 92668
Attention:
Dear Ladies and Gentlemen:
We (the "Representatives") understand that Bergen Capital Trust I (the
"Trust"), a statutory business trust organized under the laws of the State of
Delaware, proposes to issue and sell 12,000,000 shares of 7.80% Trust Originated
Preferred Securities (the "Preferred Securities") of the Trust (such Preferred
Securities being hereinafter referred to as the "Underwritten Securities").
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Trust has agreed to sell to the underwriters named below
(the "Underwriters"), and the Underwriters have agreed, severally and not
jointly, to purchase from the Trust, the respective amounts of Underwritten
Securities set forth below opposite their respective names.
Underwriter Number of
Shares of
Underwritten Securities
- --------------------------------------------------------------------------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated 1,278,000
Banc of America Securities LLC 1,267,000
A.G. Edwards & Sons, Inc. 1,267,000
<PAGE>
Goldman, Sachs & Co. 1,267,000
Morgan Stanley & Co. Incorporated 1,267,000
PaineWebber Incorporated 1,267,000
Prudential Securities Incorporated 1,267,000
ABN AMRO Incorporated 120,000
BT Alex. Brown Incorporated 120,000
Robert W. Baird & Co. Incorporated 120,000
Bear, Stearns & Co. Inc. 120,000
CIBC World Markets Corp. 120,000
Dain Rauscher Incorporated 120,000
Donaldson, Lufkin & Jenrette Securities Corporation 120,000
EVEREN Securities, Inc. 120,000
First Union Capital Markets Corp. 120,000
Legg Mason Wood Walker, Incorporated 120,000
Raymond James & Associates, Inc. 120,000
U.S. Bancorp Piper Jaffray Inc. 120,000
Advest, Inc. 60,000
BB&T Capital Markets, a division of Scott & Stringfellow 60,000
J.C. Bradford & Co. 60,000
Crowell, Weedon & Co. 60,000
D. A. Davidson & Co. 60,000
Fahnestock & Co. Inc. 60,000
Fifth Third Securities, Inc. 60,000
First Albany Corporation 60,000
Fleet Securities, Inc. 60,000
Gibraltar Securities Co. 60,000
<PAGE>
Gruntal & Co., L.L.C. 60,000
J.J.B. Hilliard, W.L. Lyons, Inc. 60,000
Howe Barnes Investments, Inc. 60,000
Wayne Hummer Investments LLC 60,000
Janney Montgomery Scott Inc. 60,000
Kirkpatrick, Pettis, Smith, Polian Inc. 60,000
McDonald Investments Inc. 60,000
Mesirow Financial, Inc. 60,000
Morgan Keegan & Company, Inc. 60,000
OLDE Discount Corporation 60,000
Parker/Hunter Incorporated 60,000
The Robinson-Humphrey Company, LLC 60,000
Stephens Inc. 60,000
Stifel, Nicolaus & Company, Incorporated 60,000
Stone & Youngberg 60,000
TD Securities (USA) Inc. 60,000
Trilon International Inc. 60,000
Utendahl Capital Partners, L.P. 60,000
----------
Total: 12,000,000
==========
The Underwritten Securities shall have the following terms:
Number of shares of Underwritten
Securities to be issued: 12,000,000
Distribution rate: 7.80% per annum
Liquidation amount: $25 per Underwritten Security
Maturity date: June 30, 2039
<PAGE>
Distribution: Accruing beginning May 26, 1999 and
payable March 31, June 30, September
30 and December 30 of each year,
commencing June 30, 1999
Initial public offering price: $300,000,000
Underwriting commission to be
paid by Bergen Brunswig
Corporation: $9,450,000
Proceeds to the Trust: $300,000,000
Redemption provisions: Bergen Brunswig Corporation may
redeem some or all of its 7.80%
Subordinated Deferrable Interest
Notes due June 30, 2039 (the
"Applicable Debt Securities") (i) on
one or more occasions any time on
or after May 26, 2004 and (ii)
before May 26, 2004 within 90
days following the occurrence of
a Special Event (as defined in the
Prospectus). The Trust will use the
cash it receives upon any redemption
of the Applicable Debt Securities
to redeem a like amount of
Underwritten Securities and Common
Securities.
Sinking fund requirements: None
Selling concession: $.50 per Underwritten Security
Reallowance: $.45 per Underwritten Security
Closing date and location: May 26, 1999 at
9:00 A.M., New York City time, at
the offices of Shearman & Sterling,
599 Lexington Avenue, New York, New
York 10022
All the provisions contained in the document attached as Annex A
hereto entitled "Bergen Brunswig Corporation--Debt Securities, Trust Originated
Preferred Securities, Guarantees of Trust Originated Preferred Securities and
Class A Common Stock--Underwriting Agreement Basic Provisions" are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
<PAGE>
Please accept this offer no later than 5:00 o'clock P.M. (New York
City time) on May 20, 1999 by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BANC OF AMERICA SECURITIES LLC
A.G. EDWARDS & SONS, INC.
GOLDMAN, SACHS & CO.
MORGAN STANLEY & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
By: MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
By: /s/ James G. Jackson
__________________________
Name: James G. Jackson
Title: Director
Acting on behalf of themselves
and the other named Underwriters.
Accepted:
BERGEN BRUNSWIG CORPORATION
By: /s/ Neil F. Dimick
____________________________
Name: Neil F. Dimick
Title: Executive Vice President
and Chief Financial Officer
BERGEN CAPITAL TRUST I
By: /s/ Neil F. Dimick
____________________________
Name: Neil F. Dimick
Title: Regular Trustee
By: /s/ Donald R. Roden
____________________________
Name: Donald R. Roden
Title: Regular Trustee
By: /s/ Milan A. Sawdei
____________________________
Name: Milan A. Sawdei
Title: Regular Trustee
<PAGE>
ANNEX A
BERGEN BRUNSWIG CORPORATION
(a New Jersey corporation)
Debt Securities
Trust Originated Preferred Securities
Guarantees of Trust Originated Preferred Securities
Class A Common Stock
UNDERWRITING AGREEMENT BASIC PROVISIONS
Bergen Brunswig Corporation, a New Jersey corporation (the "Company" or
the "Guarantor"), proposes to initially issue and sell up to $700,000,000
aggregate principal amount of (i) its senior debt securities (the "Senior Debt
Securities") or subordinated debt securities (the "Subordinated Debt Securities"
and, together with the Senior Debt Securities, the "Debt Securities") and (ii)
shares of trust originated preferred securities, no par value (the "Preferred
Securities"), of Bergen Capital Trust I (the "Trust"), a statutory business
trust organized under the laws of the State of Delaware, or any combination
thereof, from time to time on terms to be determined at the time of sale. The
Debt Securities and Preferred Securities may be convertible into shares of class
A common stock, par value $1.50 per share, of the Company and the attached
preferred stock purchase rights (the "Preferred Stock Purchase Rights") created
pursuant to the Rights Agreement (the "Rights Agreement") between the Company
and Chase Manhattan Bank and Trust Company, National Association, as Rights
Agent, dated February 8, 1994 (such class A common stock together with the
Preferred Stock Purchase Rights being hereinafter referred to as the "Class A
Common Stock"). Any Subordinated Debt Securities issued by the Company and
purchased by the Trust in connection with the Trust's issuance of Preferred
Securities are referred to herein as the "Applicable Debt Securities."
The Senior Debt Securities (other than the LYONsTM, as defined below)
will be issued under an indenture dated as of May 14, 1999 (the "Senior
Indenture") between the Company and Chase Manhattan Bank and Trust Company,
National Association, as trustee (the "Senior Trustee"). The Subordinated Debt
Securities (other than the LYONsTM, as defined below) will be issued under an
indenture dated as of May 14, 1999 (the "Subordinated Indenture") between the
Company and Chase Manhattan Bank and Trust Company, National Association, as
trustee (the "Subordinated Trustee" and, together with the Senior Trustee, the
"Trustee"). The Company may offer Senior Debt Securities or Subordinated Debt
Securities denominated as "Liquid Yield OptionTM Notes" (the "LYONsTM") under a
separate indenture (the "LYONsTM Indenture"). The Senior Indenture, the
Subordinated Indenture and the LYONsTM Indenture are sometimes referred to
collectively herein as the "Indentures." Each issue of Debt Securities may vary,
as applicable, as to aggregate principal amount, maturity date, interest rate or
<PAGE>
formula and timing of payments thereof, redemption provisions and sinking fund
requirements, if any, and any other variable terms which the Senior Indenture,
Subordinated Indenture or LYONsTM Indenture, as the case may be, contemplates
may be set forth in the Debt Securities issued from time to time. The Senior
Debt Securities, Subordinated Debt Securities and LYONsTM may be offered either
together or separately.
The Preferred Securities will be issued in one series, the terms of
which are set forth in the Declaration of the Trust (as defined herein) relating
to such series of Preferred Securities. The Preferred Securities will be
guaranteed by the Guarantor with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Preferred Securities Guarantees")
pursuant to the Preferred Securities Guarantee Agreement (the "Preferred
Securities Guarantee Agreement"), dated as of May 26, 1999, between the
Guarantor and Chase Manhattan Bank and Trust Company, National Association, as
trustee (the "Preferred Guarantee Trustee"), and entitled to the benefits of
certain backup undertakings described in the Prospectus (as defined herein) with
respect to the Guarantor's agreement pursuant to the Officers' Certificate (as
defined herein) to pay all expenses relating to administration of the Trust (the
"Undertakings"). The entire proceeds from the sale of the Preferred Securities
will be combined with the entire proceeds from the sale by the Trust to the
Guarantor of its common securities (the "Common Securities") guaranteed by the
Guarantor, to the extent set forth in such guarantee, with respect to
distributions and payments upon liquidation and redemption (the "Common
Securities Guarantee" and, together with the Preferred Securities Guarantee, the
"Guarantees") pursuant to a Common Securities Guarantee Agreement (the "Common
Securities Guarantee Agreement" and, together with the Preferred Securities
Guarantee Agreement, the "Guarantee Agreements"), dated as of May 26, 1999
between the Guarantor and Chase Manhattan Bank and Trust Company, National
Association, as trustee, and will be used by the Trust to purchase subordinated
notes of the Company. The Preferred Securities and the Common Securities will be
issued pursuant to the amended and restated declaration of trust of the Trust,
dated as of May 26, 1999 (the "Declaration"), among the Guarantor, as Sponsor,
the trustees named therein (the "Regular Trustees") and the holders from time to
time of undivided beneficial interests in the assets of the Trust.
As used herein, "Securities" shall mean Debt Securities, Preferred
Securities, Class A Common Stock or any combination thereof and "Underwritten
Securities" shall mean Securities defined as "Underwritten Securities" in a
particular Terms Agreement (as hereinafter defined) to which this Underwriting
Agreement Basic Provisions is attached.
This is to confirm the arrangements with respect to the purchase from
the Company, by the Representative and the several Underwriters listed in the
applicable terms agreement entered into between the Representatives and the
Company of which this Underwriting Agreement Basic Provisions is Annex A thereto
(the "Terms Agreement"), of the Underwritten Securities described in such Terms
Agreement. With respect to any particular Terms Agreement, the Terms Agreement,
together with the provisions hereof incorporated therein by reference, is herein
<PAGE>
referred to as the "Agreement." Terms defined in the Terms Agreement are used
herein as therein defined. It is acknowledged that this Underwriting Agreement
Basic Provisions shall only apply to Underwritten Securities referred to in a
specific Terms Agreement executed by the applicable parties. Except as provided
in Section 3(i) hereof, the Company shall not be obligated to sell hereunder,
and shall be free to sell to others free of any restrictions imposed by this
Agreement, any Securities other than Underwritten Securities covered by a Terms
Agreement executed by the Company.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-74349) in respect of
certain of the Company's Securities and has filed such amendments thereto as may
have been required. The registration statement as amended has been declared
effective by the Commission, and the Indentures have been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). The registration statement as
amended and the prospectus constituting a part thereof, including all documents
incorporated therein by reference, as from time to time amended or supplemented
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the Securities Act of 1933, as amended (the "1933 Act"), or otherwise, are
collectively referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, however, that a supplement of the
Prospectus contemplated by Section 3(a) (a "Prospectus Supplement") shall be
deemed to have supplemented the Prospectus only with respect to the offering of
Underwritten Securities to which it relates.
SECTION 1. Representations and Warranties. Each of the Company and the
Trust represents and warrants to the Representatives and to each Underwriter
named in the Terms Agreement as of the date thereof (the "Representation Date"),
and as of the Closing Time (as defined herein) as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the
requirements of the 1933 Act, the rules and regulations thereunder (the
"Regulations") and the 1939 Act. The Registration Statement, at the
time the Registration Statement became effective and as of the
applicable Representation Date, did not, and as of the Closing Time
will not, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, at the time
the Registration Statement became effective and as of the applicable
Representation Date, did not, and as of the Closing Time will not,
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
<PAGE>
conformity with information furnished to the Company in writing by any
Underwriter through the Representative expressly for use in the
Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of the
Trustees under the Indentures.
(b) The financial statements and the supporting schedules
included in the Registration Statement and Prospectus present fairly
the financial position of the Company and its subsidiaries on a
consolidated basis, as of the dates indicated, and the respective
results of operations for the periods specified, in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved. The pro forma financial statements and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(c) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission,
complied and will comply, as the case may be, in all material respects
with the requirements of the 1934 Act and the rules and regulations
thereunder, and, when read together and with the other information in
the Prospectus, at the time the Registration Statement became effective
and at the time any amendments thereto become effective or hereafter
during the period specified in Section 3(b), did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
are made, not misleading.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as may
otherwise be described in the Registration Statement and Prospectus:
(i) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect") and (ii) there have not been any
transactions entered into by the Company or its subsidiaries other than
(x) transactions in the ordinary course of business including
borrowings for the acquisition of receivables and other operations and
(y) transactions which are not material in relation to the Company and
its subsidiaries considered as one enterprise.
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New Jersey with power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement.
<PAGE>
(f) This Agreement has been duly authorized by each of the
Company and the Trust and conforms in all material respects to the
description thereof in the Prospectus.
(g) The execution and delivery of this Agreement, the
Subordinated Indenture, the Declaration and the Preferred Securities
Guarantee Agreement, if any, and the consummation of the transactions
contemplated herein and therein, have been duly authorized by all
necessary corporate action and will not result in any breach of any of
the terms, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the Trust,
pursuant to any indenture, loan agreement, contract or other agreement
or instrument to which the Company or the Trust is a party or by which
the Company or the Trust may be bound or to which any of the property
or assets of the Company or the Trust is subject, nor will such action
result in any violation of the provisions of the charter, by-laws or
other organizational documents of the Company or the Trust or, to the
best of any of their knowledge, any order, rule or regulation
applicable to the Company or the Trust of any court or of any federal,
state or other regulatory authority or other governmental body having
jurisdiction over the Company or the Trust.
(h) The Applicable Debt Securities have been duly authorized
for issuance and sale and when issued, authenticated and delivered
pursuant to the provisions of the Subordinated Indenture, against
payment of the consideration therefor, the Applicable Debt Securities
will be valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws relating
to or affecting enforcement of creditors' rights or by general equity
principles and will be entitled to the benefits of the Subordinated
Indenture, and the Applicable Debt Securities and the Subordinated
Indenture conform in all material respects to all statements relating
thereto contained in the Prospectus.
(i) The Preferred Securities Guarantee Agreement has been duly
authorized and, at the Closing Time (as defined herein), will have been
duly executed by the Company and (assuming the due authorization,
execution and delivery by the Preferred Guarantee Trustee) constitute
the legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, or other laws
relating to or affecting the enforcement of creditors' rights generally
or by general equity principles.
(j) The Preferred Securities, the Preferred Securities
Guarantee and the Declaration will conform in all material respects to
the respective statements relating thereto contained in the Prospectus
and will be in substantially the respective forms filed or incorporated
by reference, as the case may be, as exhibits to the Registration
Statement.
(k) The Declaration has been duly authorized by the Guarantor
and each of the Regular Trustees and, at the Closing Time (as defined
<PAGE>
herein), will have been duly executed and delivered by the Regular
Trustees, and assuming due authorization, execution and delivery of the
Declaration by the Property Trustee under the Declaration (the
"Property Trustee") and the Delaware Trustee under the Declaration (the
"Delaware Trustee" and, together with the Regular Trustees and the
Property Trustee, the "Declaration Trustees"), the Declaration will, at
the Closing Time (as defined herein), be a valid and binding obligation
of the Regular Trustees, enforceable against the Regular Trustees in
accordance with its terms, except as such enforcement thereof may be
limited by bankruptcy, insolvency or other laws relating to or
affecting the enforcement of creditors' rights generally or by general
equity principles, and will conform in all material respects to all
statements relating thereto in the Prospectus; and at the Closing Time
(as defined herein), the Declaration will have been qualified under the
1939 Act.
(l) The Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and (subject to the terms of the Declaration) fully paid and
non-assessable undivided beneficial interests in the Trust and will be
entitled to the benefits of the Declaration; the issuance of the
Preferred Securities is not subject to preemptive or other similar
rights; and (subject to the terms of the Declaration) holders of
Preferred Securities will be entitled to the same limitation of
personal liability as is extended under Delaware law to stockholders of
private corporations for profit.
(m) The Company owns, possesses or has obtained all material
governmental licenses, permits, certificates, consents, orders,
approvals and other authorizations necessary to own or lease, as the
case may be, and to operate its properties and to carry on its business
as presently conducted, and the Company has not received any notice of
proceedings relating to revocation or modification of any such
licenses, permits, certificates, consents, orders, approvals or
authorizations.
(n) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts covering such risks as is
reasonably believed to be adequate for the conduct of their respective
businesses or has reserved reasonable amounts for noninsured risks.
(o) The Company and each of its subsidiaries own or possess
adequate rights to use all material trademarks, service marks, trade
names, trademark registrations, service mark registrations and
copyrights necessary for the conduct of their businesses and have no
reason to believe that the conduct of their businesses will conflict
with, and have not received any notice of any material claim of
conflict with, any such rights of others.
(p) Except as may otherwise be described in the Registration
Statement and Prospectus, (i) there has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or
treatment of medical wastes or hazardous substances by the Company or
<PAGE>
any of its subsidiaries (or, to the knowledge of the Company, any of
its predecessors in interest) at, upon or from any of the property now
or previously owned or leased by the Company or any of its subsidiaries
in violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under
any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which
would not have, or would not be reasonably likely to have, singularly
or in the aggregate with all such violations and remedial actions a
Material Adverse Effect; and (ii) there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or of any medical wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries
or with respect to which the Company or any of its subsidiaries had
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping and release which would not have or would
not be reasonably likely to have, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect; and the terms
"hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(q) All disclosure regarding year 2000 compliance that is
required to be described in a registration statement on Form S-3 under
the 1933 Act (including disclosure required by Staff Bulletin No. 6 and
SEC Release No. 33-7558 (July 29, 1998)) has been included in all
material respects in the Prospectus. As of March 31, 1999, the Company
and its then subsidiaries had not incurred significant operating
expenses or costs to ensure that their information systems will be year
2000 compliant, other than as disclosed in the Prospectus.
(r) Deloitte & Touche LLP are independent certified public
accountants with respect to the Company as required by the 1933 Act and
the Regulations and Arthur Andersen LLP and Ernst & Young are
independent accountants with respect to PharMerica, Inc. as required by
the 1933 Act and the Regulations.
Any certificate signed by any officer or trustee of the Company or the
Trust and delivered to the Representative or counsel for the Underwriters in
connection with an offering of Underwritten Securities shall be deemed a
representation and warranty by the Company, as to the matters covered thereby,
to each Underwriter participating in such offering.
SECTION 2. Purchase and Sale. The obligations of the Underwriters to
purchase, and the Company and/or the Trust to sell, the Underwritten Securities
shall be evidenced by the Terms Agreement. The Terms Agreement specifies the
principal amount of the Debt Securities, if any, and the number of Preferred
Securities, if any, the names of the Underwriters participating in the offering
(subject to substitution as provided in Section 10 hereof) and the principal
amount or number of Underwritten Securities which each Underwriter severally has
agreed to purchase, the purchase price to be paid by the Underwriters for the
Underwritten Securities, the initial public offering price, if any, of the
<PAGE>
Underwritten Securities, any terms of the Underwritten Securities not already
specified in the Indentures or the Declaration, as the case may be, pursuant to
which they are being issued (including, but not limited to, designations,
denominations, current ratings, interest rates or formulas and payment dates,
maturity dates, redemption provisions and sinking fund requirements, if any).
The several commitments of the Underwriters to purchase Underwritten
Securities pursuant to the Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Underwritten
Securities to be purchased by the Underwriters and sold by the Company and/or
the Trust shall be made at the office of Shearman & Sterling, 599 Lexington
Avenue, New York, New York 10022, or at such other place as shall be agreed upon
by the Representatives and the Company, at 9:00 A.M., New York City time, on the
fourth business day (unless postponed in accordance with the provisions of
Section 10) following the date of the Terms Agreement or such other time as
shall be agreed upon by the Representatives and the Company (each such time and
date being referred to as a "Closing Time"). Unless otherwise specified in the
Terms Agreement, payment shall be made to the Trust by certified or official
bank check or checks in federal or similar same day funds payable to the order
of the Trust against delivery to the Representatives for the respective accounts
of the Underwriters of the Underwritten Securities to be purchased by them. The
Underwritten Securities shall be in such denominations and registered in such
names as the Representatives may request in writing at least two business days
prior to the applicable Closing Time. The Underwritten Securities, which may be
in temporary form, will be made available for examination and packaging by the
Representatives on or before the first business day prior to the Closing Time.
SECTION 3. Covenants of the Company and the Trust. Each of the Company
and the Trust covenants with the Representatives, and with each Underwriter
participating in the offering of Underwritten Securities, as follows:
(a) Immediately following the execution of the Terms
Agreement, the Company will prepare a Prospectus Supplement setting
forth the principal amount of Debt Securities and/or number of
Preferred Securities covered thereby and their material terms not
otherwise specified in the respective Indentures or the Declaration, as
the case may be, pursuant to which the Debt Securities or Preferred
Securities, as the case may be, are being issued, the names of the
Underwriters participating in the offering and the principal amount of
Debt Securities or number of Preferred Securities which each severally
has agreed to purchase, the names of the Underwriters acting as
co-managers in connection with the offering, the price at which the
Underwritten Securities are to be purchased by the Underwriters from
the Company and/or the Trust, the initial public offering price, the
<PAGE>
selling concession and reallowance, if any, and such other information
as the Representatives and the Company deem appropriate in connection
with the offering of the Underwritten Securities. The Company will
promptly transmit copies of the Prospectus Supplement to the Commission
for filing pursuant to Rule 424 of the Regulations and will furnish to
the Underwriters named therein as many copies of the Prospectus and
such Prospectus Supplement as the Representatives shall reasonably
request.
(b) If, at any time when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Underwritten
Securities, any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters
or counsel for the Company, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser or if
it shall be necessary, in the opinion of either such counsel, at any
such time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or
the Regulations, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act or otherwise, as may be necessary to correct
such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(c) With respect to each sale of Underwritten Securities, the
Company will make generally available to its security holders as soon
as practicable, but not later than 90 days after the close of the
period covered thereby, earning statements (in form complying with the
provisions of Rule 158 under the 1933 Act) covering 12-month periods
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in Rule
158) of the Registration Statement relating to Underwritten Securities.
(d) At any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Underwritten
Securities, the Company will give the Representatives notice of its
intention to file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the 1934
Act, the 1933 Act or otherwise, will furnish the Representatives with
copies of any such amendment or supplement or other documents proposed
to be filed a reasonable time in advance of filing, and will not file
any such amendment or supplement or other documents in a form to which
the Representatives or counsel for the Underwriters shall reasonably
object.
(e) At any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Underwritten
Securities, the Company will notify the Representatives immediately,
and confirm such notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the mailing or the
<PAGE>
delivery to the Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act, (iii)
the receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or any supplement to the
Prospectus, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
or for additional information, and (v) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(f) During the period specified in (b) above, the Company will
deliver to the Representatives as many signed and conformed copies of
the registration statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the
Prospectus) as the Representatives may reasonably request.
(g) The Company will endeavor in good faith to qualify the
Underwritten Securities for offering and sale under the applicable
securities laws of such jurisdictions as the Representatives may
designate; provided, however, that the Company shall not be obligated
to file any general consent to service or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified. The Company will maintain such qualifications
in effect for as long as may be required for the distribution of the
Underwritten Securities. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which
the Underwritten Securities have been qualified as above provided.
(h) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act in connection with the sale
of the Underwritten Securities, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14
of the 1934 Act.
(i) Between the date of the Terms Agreement and the later of
termination of any trading restrictions or the Closing Time with
respect to the Underwritten Securities covered thereby, the Company
will not, without the Representative's prior consent, offer to sell, or
enter into any agreement to sell, any new issue of Preferred Securities
of the Company with a maturity of more than one year.
(j) The Company has obtained the authorization of the New York
Stock Exchange to list the Preferred Securities thereon and will use
its best efforts to effect the listing of the Preferred Securities
thereon.
SECTION 4. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
<PAGE>
the Terms Agreement are subject to the accuracy of the representations and
warranties on the part of the Company and the Trust herein contained, to the
accuracy of the statements of the Company's or the Trust's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance by
the Company and the Trust of all of their covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time, (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, (ii) there shall not have occurred since
the date of the Terms Agreement any downgrading, nor shall any notice
have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's
securities, including the Underwritten Securities, by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act and (iii) there
shall not have come to the Representatives' attention any facts that
would cause the Representatives to believe that the Prospectus,
together with the applicable Prospectus Supplement, at the time it was
required to be delivered to a purchaser of the Underwritten Securities,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at such time, not misleading.
(b) At the applicable Closing Time, the Representatives shall
have received:
(1) The favorable opinion, dated as of the applicable
Closing Time, of Lowenstein Sandler PC, counsel for the
Company and the Trust, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) The Company is a corporation duly
incorporated and validly existing in good standing
under the laws of the State of New Jersey.
(ii) The Company is duly qualified to
transact business and is in good standing under the
laws of the states of California, Michigan and Utah.
(iii) The Company has full corporate power
and corporate authority to enter into and perform its
obligations under this Agreement, the Declaration,
the Subordinated Indenture and the Preferred
Securities Guarantee Agreement, to borrow money as
contemplated in this Agreement and the Subordinated
Indenture, and to issue, sell and deliver the
Applicable Debt Securities, and to purchase, own and
hold the Common Securities issued by the Trust.
<PAGE>
(iv) The Declaration has been duly
authorized, executed and delivered by the Guarantor
and each of the Regular Trustees.
(v) This Agreement, the Preferred Securities
Guarantee Agreement and the Applicable Debt
Securities have been duly authorized, executed and
delivered by the Company.
(vi) The execution and delivery of this
Agreement, the Subordinated Indenture, the
Declaration and the Preferred Securities Guarantee
Agreement, the fulfillment of the terms herein and
therein set forth and the consummation of the
transactions herein and therein contemplated will not
conflict with or constitute a breach of, or default
under, the charter or by-laws of the Company or any
indenture, credit agreement, commercial paper
agreement or other material agreement known to such
counsel of which the Company is a party or by which
it is bound, or any law, administrative regulation or
administrative or court order known to such counsel
to be applicable to the Company and transactions of
the type contemplated in the Prospectus.
(vii) This Agreement has been duly executed,
and the Preferred Securities have been duly
authorized, executed and delivered, by the Trust.
(viii) The Subordinated Indenture has been
duly authorized, executed and delivered by the
Company and, assuming due authorization, execution
and delivery by the Trustee, such Indenture
constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms,
except as enforcement thereof may be subject to the
effects of any bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without
limitation, all laws relating to fraudulent
transfers), and may be subject to general principles
of equity (regardless of whether enforcement is
considered in a proceeding in equity or law) and
except as enforcement thereof is subject, in the case
of Debt Securities denominated in a foreign currency
or currency unit, to provisions of law that require
that a judgment for money damages rendered by a court
in the United States be expressed only in United
States dollars.
(ix) All of the issued and outstanding
Common Securities of the Trust are directly owned of
record by the Guarantor free and clear of any
security interest, mortgage, pledge, lien,
encumbrance, claim or equity known to such firm,
except for the restrictions on transfer set forth in
the Declaration and except that such counsel may
state that in rendering the opinion set forth in this
paragraph (ix) regarding security interests,
mortgages, pledges, liens, encumbrances, claims and
<PAGE>
equities on the Common Securities of the Trust such
counsel has not undertaken any independent
investigation of the public record.
(x) The Declaration and the Preferred
Securities Guarantee have been duly qualified under
the 1939 Act.
(xi) The Preferred Securities Guarantee
Agreement has been duly authorized, executed and
delivered by the Guarantor and, assuming due
authorization, execution and delivery by the
Preferred Guarantee Trustee, constitutes a valid and
binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms,
except as may be subject to the effects of any
bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally
(including, without limitation, all laws relating to
fraudulent transfers), and may be subject to general
principles of equity (regardless of whether
enforcement is considered in a proceeding in equity
or law) and except as enforcement thereof is subject,
in the case of a Preferred Securities Guarantee
denominated in a foreign currency or currency unit,
to provisions of law that require that a judgment for
money damages rendered by a court in the United
States be expressed only in United States dollars.
(xii) The Applicable Debt Securities have
been duly authorized by the Company and, when
executed and authenticated as specified in the
Subordinated Indenture and delivered against payment
therefor, the Applicable Debt Securities will be
valid and binding obligations of the Company entitled
to the benefits of the Subordinated Indenture and
enforceable in accordance with their terms, except as
enforcement thereof may be subject to the effects of
any bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors'
rights generally (including, without limitation, all
laws relating to fraudulent transfers), and may be
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or law) and except as enforcement thereof
is subject, in the case of Applicable Debt Securities
denominated in a foreign currency or currency unit,
to provisions of law that require that a judgment for
money damages rendered by a court in the United
States be expressed only in United States dollars.
(xiii) The Underwritten Securities, the
Senior Indenture, the Subordinated Indenture, the
Declaration and the Preferred Securities Guarantee
Agreement conform in all material respects as to
legal matters to the descriptions thereof in the
Prospectus.
(xiv) The Subordinated Indenture has been
duly qualified under the 1939 Act.
<PAGE>
(xv) The Registration Statement is effective
under the 1933 Act and, to the best of their
knowledge and information, no stop order suspending
the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(xvi) The Registration Statement and
Prospectus, and each amendment or supplement thereto
(except for the financial statements and other
financial data included therein or omitted therefrom
and any Form T-1 included within the Registration
Statement, as to which such counsel need express no
opinion), excluding the documents incorporated by
reference therein, as of their respective effective
or issue dates, appear on their face to have been
appropriately responsive in all material respects to
the requirements of the 1933 Act, the 1939 Act and
the Regulations.
(xvii) The documents incorporated by
reference in the Prospectus (except for the financial
statements and other financial data included therein
or omitted therefrom, as to which such counsel need
express no opinion), as of the dates they were filed
with the Commission, appear on their face to have
been appropriately responsive in all material
respects to the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder.
(xviii) The Trust is not an "investment
company" within the meaning of the 1940 Act.
(xix) Subject to customary qualifications,
(a) the choice of law provisions of this Agreement,
the Subordinated Indenture, the Preferred Securities
Guarantee Agreement and the Declaration are
enforceable under New Jersey law; and (b) the
Subordinated Indenture and Applicable Debt Securities
would be enforceable under New Jersey law if so
governed.
(xx) The Trust will be classified as a
grantor trust and not as an association taxable as a
corporation for United States federal income tax
purposes.
Such opinion shall also state that such counsel has
not verified, and is not passing upon and does not assume any
responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, other than those mentioned in (xiii) of subsection
4(b)(1) of this Section. Such counsel has, however, generally
<PAGE>
reviewed and discussed such statements with certain officers
of the Company and its auditors. In the course of such review
and discussion, no facts have come to such counsel's attention
that lead such counsel to believe (i) that the Registration
Statement or any amendment thereto (except for the financial
statements and other financial data included therein or
omitted therefrom and any Form T-1 included within the
Registration Statement, as to which such counsel need not
comment), at the time the Registration Statement or any such
amendment became effective or at the time an Annual Report on
Form 10-K was filed, or at the date of the Terms Agreement,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
(ii) that the Prospectus or any amendment or supplement
thereto (except for the financial statements and other
financial data included therein or omitted therefrom, as to
which such counsel need not comment), at the time the
Prospectus was issued, at the time any such amended or
supplemented Prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
counsel may rely on the opinion of Shearman & Sterling
delivered pursuant to subsection 4(b)(3) of this Section as to
matters of New York law.
(2) The favorable opinion, dated as of the applicable
Closing Time, of Richards, Layton & Finger, P.A., Delaware
counsel for the Company, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust
under the Business Trust Act of the State of
Delaware, 12 Del. C. ss.ss. 3801 et seq. (the
"Delaware Act"); all filings required under the laws
of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust
have been made; under the Delaware Act and the
Declaration, the Trust has the requisite business
trust power and authority to (x) own property and
conduct its business, all as described in the
Prospectus, (y) enter into and perform its
obligations under this Agreement, and (z) issue and
perform its obligations under the Preferred
Securities and the Common Securities.
(ii) Assuming the Declaration has been duly
authorized, executed and delivered by the Trustees
and the Guarantor, the Declaration is a valid and
binding obligation of the Guarantor and the Regular
Trustees, enforceable against the Guarantor and the
Regular Trustees, in accordance with its terms,
except to the extent that (x) enforcement thereof may
be subject to the effects of any bankruptcy,
insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally
(including, without limitation, all laws relating to
<PAGE>
fraudulent transfers), and may be subject to general
principles of equity (regardless of whether
enforcement is considered in a proceeding in equity
or law) and (y) the rights to indemnity and
contribution contained therein may be limited by
applicable law or the public policy underlying such
laws.
(iii) Under the Delaware Act and the
Declaration, the execution and delivery by the Trust
of this Agreement, and the performance by the Trust
of its obligations hereunder, have been duly
authorized by all necessary business trust action on
the part of the Trust.
(iv) The Common Securities have been duly
authorized for issuance by the Declaration and, when
issued and delivered pursuant to the Common
Securities subscription agreement, will be validly
issued and represent undivided beneficial interests
in the assets of the Trust; and under the Delaware
Act and the Declaration, the issuance of the Common
Securities is not subject to preemptive rights.
(v) The Preferred Securities have been duly
authorized for issuance by the Declaration and, when
issued, executed and authenticated in accordance with
the Declaration and delivered and paid for in
accordance with this Agreement, will be validly
issued, and (subject to the qualifications set forth
herein) represent fully paid and non-assessable
undivided beneficial interests in the assets of the
Trust; the holders of the Preferred Securities, in
their capacity as such, will be entitled to the same
limitation of personal liability under Delaware law
as extended to stockholders of private corporations
for profit; and under the Delaware Act and the
Declaration, the issuance of the Preferred Securities
is not subject to preemptive rights. Such counsel may
note that the Preferred Security holders will be
subject to the withholding provisions of Section 11.4
of the Declaration and may be required to make
payment or provide indemnity or security as set forth
in the Declaration.
(vi) The issuance and sale by the Trust of
the Preferred Securities and the Common Securities,
the execution, delivery and performance by the Trust
of this Agreement, the consummation of the
transactions contemplated therein, and compliance by
the Trust with its obligations thereunder will not
violate any of the provisions of the Certificate of
Trust or the Declaration or Applicable law. As used
in this opinion, "Applicable Law" shall mean those
laws, rules and regulations of the State of Delaware
that, in such firm's experience, are normally
applicable to transactions of the type contemplated
by this Agreement (other than state securities laws,
as to which such firm need express no opinion) but
<PAGE>
without such firm having made any special
investigation with respect to any other laws, rules
or regulations.
(vii) No authorization, approval, consent or
order of any Delaware court or governmental authority
or agency is required to be obtained by the Trust
under Applicable Law in connection with the issuance
and sale of the Common Securities and the Preferred
Securities or the purchase by the Trust of the
Applicable Debt Securities except such as have been
obtained and such as may be required by state
securities laws, as to which such firm need express
no opinion.
(3) The favorable opinion, dated as of the applicable
Closing Time, of Shearman & Sterling, counsel for the
Underwriters, with respect to certain matters. Such counsel
may rely on the opinion of Lowenstein Sandler PC of subsection
4(b)(1) of this Section as to matters of New Jersey law.
(c) At the applicable Closing Time, there shall not have been,
since the date of the Terms Agreement or since the respective dates as
of which information is given in the Registration Statement, a Material
Adverse Effect, and the Representatives shall have received a
certificate of any two of the Chief Executive Officer, Chief Financial
Officer or any other Executive Vice President of the Company, dated as
of such Closing Time, to the effect that there has been no such
Material Adverse Effect and to the effect that the other
representations and warranties of the Company contained in Section 1
are true and correct with the same force and effect as though such
Closing Time were a Representation Date.
(d) The Representatives shall have received from Deloitte &
Touche LLP or other independent certified public accountants acceptable
to the Representatives a letter, dated as of the date of the Terms
Agreement and delivered at such time, in form heretofore agreed to.
(e) The Representatives shall have received from Arthur
Andersen LLP or other independent certified public accountants
acceptable to the Representatives a letter, dated as of the date of the
Terms Agreement and delivered at such time, in form heretofore agreed
to, and which shall not be required to provide comfort on interim
financial statements.
(f) The Representatives shall have received from Ernst & Young
LLP or other independent certified public accountants acceptable to the
Representatives a letter, dated as of the date of the Terms Agreement
and delivered at such time, in form heretofore agreed to.
(g) The Representatives shall have received from Deloitte &
Touche LLP or other independent certified public accountants acceptable
<PAGE>
to the Representatives a letter, dated as of the applicable Closing
Time, reconfirming or updating the letter required by subsection (d) of
this Section to the extent that may be reasonably requested by the
Representatives.
(h) The Representatives shall have received from Arthur
Andersen LLP or other independent certified public accountants
acceptable to the Representatives a letter, dated as of the applicable
Closing Time, reconfirming or updating the letter required by
subsection (e) of this Section to the extent that may be reasonably
requested by the Representatives and which shall provide customary
comfort on interim financial statements.
(i) The Representatives shall have received from Ernst & Young
LLP or other independent certified public accountants acceptable to the
Representatives a letter, dated as of the applicable Closing Time,
reconfirming or updating the letter required by subsection (f) of this
Section to the extent that may be reasonably requested by the
Representatives.
(j) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions
as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated and related proceedings or in order to evidence the
accuracy and completeness of any of the representations and warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Underwritten Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the Underwritten
Securities to the Underwriters, (iii) the fees and disbursements of the
Company's and the Trust's counsel, accountants and other advisors, (iv) the
qualification of the Underwritten Securities under securities laws in accordance
with the provisions of Section 3(g), including filing fees and the fee and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky Surveys and Legal Investment
Surveys, (v) the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the registration statements and all amendments
thereto, of the Registration Statement and any amendments thereto, and of the
Prospectus and any amendments or supplements thereto, (vi) the delivery to the
Underwriters of copies of the applicable Indentures, the Preferred Securities
Guarantee Agreement, the Declaration and any Blue Sky Surveys and Legal
Investment Surveys, (vii) the fees and expenses of the Property Trustee and
Delaware Trustee, including the fees and disbursements of counsel for the
Property Trustee and Delaware Trustee, in connection with the Declaration and
the Certificate of Trust, (viii) the fees and expenses of the Preferred
Guarantee Trustee, including the fees and disbursements of counsel for the
<PAGE>
Preferred Guarantee Trustee, (ix) the fees and expenses incurred in connection
with the listing of the Preferred Securities on the New York Stock Exchange, (x)
the fees, if any, of rating agencies and (xi) the fees and expenses, if any,
incurred in connection with the listing of the Underwritten Securities on any
national securities exchange.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 4 or Section 9(i), the Company shall reimburse
the Underwriters named in the Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or any omission or
alleged omission therefrom, of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto), or was made in reliance upon any
Form T-1 included within the Registration Statement;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever, based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as reasonably
incurred (including the fees and disbursements of counsel chosen by the
<PAGE>
Representatives), in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever, based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
(b) The Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever, as due from the Trust under
subsection 6(a) of this Section.
(c) Each Underwriter severally agrees that it will indemnify and hold
harmless the Company and each of its officers who signs the Registration
Statement and each of its directors and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements and omissions made in the Prospectus (or any amendment or
supplement thereto) or the Registration Statement (or any amendment thereto) in
reliance upon and in conformity with written information furnished to the
Company or any of its trusts by or on behalf of such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
In case any action shall be brought against the Company or any person so
indemnified based on the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto) and in respect of which
indemnity may be sought against any Underwriter, such Underwriter shall have the
rights and duties given to the Company, and the Company and each person so
indemnified shall have the rights and duties given to the Underwriters, by the
provisions of subsection (a) of this Section.
(d) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by Merrill Lynch, and, in the case of parties indemnified pursuant to
Section 6(c) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
<PAGE>
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(e) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provisions provided in
Section 6 above should under applicable law be unenforceable in respect of any
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Underwritten Securities
and also the relative fault of the Company, the Trust and the Underwriters in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Trust and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the Prospectus, bear to the aggregate public offering price of the
Underwritten Securities. The relative fault shall be determined by reference to,
among other things, whether the indemnified party failed to give the notice
required under Section 6 above including the consequences of such failure, and
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission of the Company and the Underwriters, directly or through
the Representatives of the Underwriters. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by per capita allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The amount paid or payable by an indemnified party as a result
of the losses, liabilities, claims, damages or expenses (or actions in respect
thereof) referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
<PAGE>
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this Section
7 to contribute are several in proportion to their respective underwriting
obligations and not joint.
The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act; and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer who signs the Registration
Statement and each director of the Company, each trustee of the Trust and to
each person, if any, who controls the Company or the Trust within the meaning of
Section 15 of the 1933 Act.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company or the Trust
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any termination of this Agreement, or any investigation made by or
on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of any Underwritten Securities to the
Underwriters.
SECTION 9. Termination. The Representatives may terminate this
Agreement, by notice to the Company, at any time prior to the applicable Closing
Time (i) if there has been, since the date of the Terms Agreement or since the
respective dates as of which information is given in the Registration Statement,
a Material Adverse Effect, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak or escalation of hostilities or other calamity
or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Underwritten Securities or enforce
contracts for the sale of the Underwritten Securities, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or trading generally on either the
American Stock Exchange or the New York Stock Exchange has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
<PAGE>
(iv) if a banking moratorium has been declared by either Federal or New York
authorities. In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter retains beneficial ownership of any
such Underwritten Securities purchased from the Company pursuant to the
applicable Terms Agreement and (y) the covenant set forth in Section 3(c), the
provisions of Section 5, the indemnity agreement set forth in Section 6, the
contribution agreement set forth in Section 7 and the provisions of Sections 8
and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters participating
in an offering of Securities shall fail at the applicable Closing Time to
purchase the Underwritten Securities which it or they are obligated to purchase
under the applicable Terms Agreement (the "Defaulted Securities"), then the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, during such 24 hours the Representatives shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the
Underwritten Securities to be purchased pursuant to the Terms
Agreement, the non-defaulting Underwriters named in such Terms
Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations thereunder
bear to the underwriting obligations of all such non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Underwritten
Securities to be purchased pursuant to such Terms Agreement, the Terms
Agreement shall terminate without any liability on the part of any
non-defaulting Underwriters or the Company. As used in this Section
only, the aggregate amount or aggregate principal amount of
Underwritten Securities shall mean the aggregate principal amount of
any Debt Securities or the number of Preferred Securities included
in the relevant Underwritten Securities.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement and the Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either the Representatives or the Company shall have the
right to postpone the applicable Closing Time for a period not exceeding seven
days in order that any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
<PAGE>
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives; notices to the Company
and the Trust shall be directed to it at 4000 Metropolitan Drive, Orange,
California 92668, Attention: Milan A. Sawdei.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company, the Trust and any Underwriter who becomes a party
hereto, and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State.
SECTION 14. Counterparts. The Terms Agreement may be executed in one
or more counterparts, and if executed in more than one counterpart the executed
counterparts shall constitute a single instrument.
<PAGE>
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BANC OF AMERICA SECURITIES LLC
A.G. EDWARDS & SONS, INC.
GOLDMAN, SACHS & CO.
MORGAN STANLEY & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ James G. Jackson
___________________________
Name: James G. Jackson
Title: Director
Acting on behalf of themselves and the
other named Underwriters.
BERGEN BRUNSWIG CORPORATION
By: /s/ Neil F. Dimick
_________________________
Name: Neil F. Dimick
Title: Executive Vice President
and Chief Financial Officer
BERGEN CAPITAL TRUST I
By: /s/ Neil F. Dimick
_________________________
Name: Neil F. Dimick
Title:Regular Trustee
By: /s/ Donald R. Roden
_________________________
Name: Donald R. Roden
Title: Regular Trustee
By: /s/ Milan A. Sawdei
________________________
Name: Milan A. Sawdei
Title: Regular Trustee
[LOWENSTEIN SANDLER LETTERHEAD]
EXHIBIT 5.1
May 21, 1999
Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, CA 92868-3510
Re: Registration Statement on Form S-3 of Bergen Brunswig Corporation,
Bergen Capital Trust I, Bergen Capital Trust II and Bergen Capital
Trust III
(Registration No. 333-74349)
Ladies and Gentlemen:
We have acted as special counsel to Bergen Brunswig Corporation, a New Jersey
corporation ("Bergen"), and are rendering this opinion in connection with the
preparation of the above-referenced Registration Statement on Form S-3 (No.
333-74349) (the "Registration Statement"), which was filed by Bergen and Bergen
Capital Trust I, Bergen Capital Trust II and Bergen Capital Trust III, each a
statutory business trust created under the Business Trust Act of the State of
Delaware (each a "Trust," and collectively, the "Trusts"), on March 12, 1999
with the Securities and Exchange Commission (the "Commission"), and amended on
May 14, 1999. The Registration Statement relates to the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of $300,000,000
aggregate public offering price of (i) Bergen's (a) senior unsecured debt
securities (the "Senior Debt Securities"), which may be issued pursuant to an
Indenture, dated as of May 14, 1999, between Bergen and Chase Manhattan Bank and
Trust Company, National Association, as trustee (as amended or supplemented, the
"Senior Indenture"); (b) subordinated unsecured debt securities (the
"Subordinated Debt Securities" and, together with the Senior Debt Securities,
the "Debt Securities"), which may be issued pursuant to an Indenture dated as of
May 14, 1999 (as amended or supplemented, the "Subordinated Indenture"), between
Bergen and Chase Manhattan Bank and Trust Company, National Association, as
trustee; and (c) guarantees by Bergen of the preferred securities (the
"Guarantees") described below pursuant to one or more preferred securities
guarantee agreements (each a "Guarantee Agreement") to be entered into by
Bergen; and (ii) preferred securities (the "Preferred Securities" and, together
with the Debt Securities, the "Offered Securities") which may be issued by each
Trust pursuant to their respective Declarations of Trust, as each may be amended
(each a "Declaration"). The Offered Securities are being registered for offering
and sale from time to time pursuant to Rule 415 under the Securities Act.
This opinion is delivered in accordance with the requirements of item 601(b)(5)
of Regulation S-K under the Securities Act.
<PAGE>
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
such documents as we have deemed necessary or appropriate as a basis for the
opinions set forth herein, including (i) the Registration Statement in the form
in which it was declared effective by the Commission on May 14, 1999 (together
with the form of prospectus forming a part thereof); (ii) a copy of Bergen's
Restated Certificate of Incorporation, as amended, to date; (iii) the By-Laws of
Bergen, as amended to date; (iv) a Certificate of Good Standing for Bergen,
dated May 3, 1999, issued by the New Jersey Secretary of State (v) the Senior
Indenture; (vi) the Subordinated Indenture; (vii) the Guarantees; (viii) the
Certificate of Trust of each of the Trusts filed with the Secretary of State of
the State of Delaware on March 11, 1999 (each, a "Certificate of Trust"); (ix)
the Declarations of each of the Trusts dated as of March 11, 1999 and (x) copies
of certain resolutions adopted by the Board of Directors of Bergen relating to
the execution of the Senior Indenture and the Subordinated Indenture, the
issuance of the Debt Securities, the filing of the Registration Statement and
any amendments or supplements thereto and related matters (the "Board
Resolutions"). In rendering the opinions set forth below, we have also examined
the original or a copy of certificates of public officials and corporate
officers and have made such inquiries and investigations as we have deemed
necessary for the opinions hereinafter set forth. In our examination, we have
assumed the genuineness of all signatures and authority of all signatories of
such documents, other than the signatories on behalf of Bergen, the authenticity
of all documents submitted to us as originals or copies, and the conformity to
the originals of all copies. We have also assumed: (i) that all documents
executed by any person or entity, other than those delivered by Bergen,
constitute the legal, valid and binding obligations of, and are enforceable
against, all such persons or entities, and (ii) the legal right and power of
each party (other than Bergen) under all applicable laws and regulations to
perform its obligations. As to any facts material to the opinions expressed
herein which we have not independently established or verified, we have relied
upon statements and representations of officers and other representatives of
Bergen and others.
We are admitted to practice law only in the State of New Jersey. The opinions
expressed herein are limited to (i) the corporate laws of the State of New
Jersey, (ii) the federal laws of the United States of America and (iii) based
solely upon the annexed opinion of Shearman & Sterling, the laws of the State of
New York.
The Offered Securities may be issued from time to time on a delayed or
continuous basis and this opinion is limited to the laws, including the rules
and regulations, as in effect on the date hereof.
Based upon the foregoing and subject to the limitations expressed herein, we are
of the opinion that:
1. When (i) the appropriate officers of Bergen have taken all
necessary action pursuant to the provisions of the Senior Indenture or the
Subordinated Indenture, as the case may be, to fix and approve the terms of the
Debt Securities, including the establishment of the form or forms of
certificates representing the Debt Securities pursuant to the provisions of the
Senior Indenture or the Subordinated Indenture, as the case may be; and (ii) the
Debt Securities are duly executed and authenticated in accordance with the
provisions of the Senior Indenture or the Subordinated Indenture, as the case
<PAGE>
may be, and duly delivered to the purchasers thereof upon payment of the agreed
upon consideration therefor, the Debt Securities will be validly issued and
binding obligations of Bergen, enforceable against Bergen in accordance with
their terms.
2. With respect to the Guarantees, when (i) the trustees of the
applicable Trust have taken all necessary action to adopt the applicable
Declaration and to fix and determine the terms of the applicable Preferred
Securities in accordance with the terms of the applicable Declaration; (ii) the
appropriate officers of Bergen have taken all necessary action to fix and
determine the terms of the applicable Guarantees in accordance with the Board
Resolutions; (iii) the terms of the applicable Preferred Securities and the
related Guarantee and the issuance and sale thereof have been duly established
in conformity with the applicable Declaration and applicable Guarantee
Agreement, respectively, so as not to violate any applicable law, the applicable
Certificate of Trust, Declaration, and the Restated Certificate of Incorporation
and By-laws of Bergen, or result in a default (with the passage of time or
otherwise) under or a breach of any contract, indenture, mortgage, loan
agreement, note, lease or other instrument binding upon the applicable Trust or
Bergen, and so as to comply with any requirement or restriction imposed by any
court or governmental agency or authority having jurisdiction over the
applicable Trust or Bergen; (iv) the applicable Guarantee Agreement has been
duly executed and delivered; (v) the applicable Preferred Securities have been
duly issued and delivered by the applicable Trust as contemplated by the
Registration Statement, the prospectus contained therein and the prospectus
supplement relating thereto; (vi) certificates representing the applicable
Preferred Securities have been manually authenticated by an authorized officer
of the Property Trustee (as defined in the applicable Declaration) for the
applicable Preferred Securities and registered by such Property Trustee and
delivered to the purchasers thereof; and (vii) the applicable Trust receives the
agreed-upon consideration therefor, the applicable Guarantee will be a valid and
binding obligation of Bergen enforceable in accordance with its terms.
The opinions above are subject to the following qualifications:
(a) The opinions as to enforceability are subject to: (i) the effect
of bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect affecting creditors' rights generally (including without
limitation all laws relating to fraudulent transfers), (ii) general principles
of equity regardless of whether enforcement is considered in a proceeding in
equity or at law, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief, (iii) in the case of any claim
denominated in a foreign currency or currency unit, provisions of law that
require that a judgment for money damages rendered in a court in the United
States be expressed only in United States dollars, (iv) the effect of general
rules of contract law that limit the enforceability of provisions requiring
<PAGE>
indemnification of a party for liability for its own action or inaction to the
extent the action or inaction involves gross negligence, recklessness, willful
misconduct or unlawful conduct, and (v) governmental authority to limit, delay
or prohibit the making of payments outside the United States or in a foreign
currency, composite currency or currency unit. In addition, we express no
opinion with respect to any Debt Securities that are indexed or linked to any
foreign currency, composite currency, currency unit, commodity, equity index or
similar index.
(b) The opinions above with respect to the enforceability of the
Guarantees are also subject to the qualification that certain of the guarantee
and surety waivers contained in the Guarantees may be unenforceable in whole or
in part, but the inclusion of such provisions does not affect the validity or
enforceability of any Guarantee, taken as a whole.
We hereby consent to the filing of this opinion with the Commission as Exhibit
5.1 to the Registration Statement. We also consent to the reference to us under
the heading "Legal Opinions" in the prospectus included in the Registration
Statement and under the heading "Legal Matters" in the prospectus supplement
thereto. In giving this consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
Very truly yours,
/s/ LOWENSTEIN SANDLER PC
LOWENSTEIN SANDLER PC
<PAGE>
[Letterhead of Shearman & Sterling]
May 21, 1999
Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, CA 92868-3510
Re: Registration Statement on Form S-3 of Bergen Brunswig Corporation,
Bergen Capital Trust I, Bergen Capital Trust II and Bergen Capital
Trust III
(Registration No. 333-74349)
Ladies and Gentlemen:
We have acted as special New York counsel and are rendering this
opinion in connection with the preparation of the above-referenced Registration
Statement on Form S-3 (No. 333-74349) (the "Registration Statement"), which was
filed by Bergen Brunswig Corporation, a New Jersey corporation ("Bergen"), and
Bergen Capital Trust I, Bergen Capital Trust II and Bergen Capital Trust III,
each a statutory business trust created under the Business Trust Act of the
State of Delaware (each a "Trust," and collectively, the "Trusts"), on March 12,
1999 with the Securities and Exchange Commission (the "Commission"), and amended
on May 14, 1999. The Registration Statement relates to the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of $300,000,000
aggregate public offering price of (i) Bergen's (a) senior unsecured debt
securities (the "Senior Debt Securities"), which may be issued pursuant to an
Indenture, dated as of May 14, 1999, between Bergen and Chase Manhattan Bank and
Trust Company, National Association, as trustee (as amended or supplemented, the
"Senior Indenture"); (b) subordinated unsecured debt securities (the
"Subordinated Debt Securities" and, together with the Senior Debt Securities,
the "Debt Securities"), which may be issued pursuant to an Indenture dated as of
May 14, 1999 (as amended or supplemented, the "Subordinated Indenture"), between
Bergen and Chase Manhattan Bank and Trust Company, National Association, as
trustee; and (c) guarantees by Bergen of the preferred securities (the
"Guarantees") described below pursuant to one or more preferred securities
guarantee agreements (each a "Guarantee Agreement") to be entered into by
Bergen; and (ii) preferred securities (the "Preferred Securities" and, together
with the Debt Securities, the "Offered Securities") which may be issued by each
Trust pursuant to their respective Declarations of Trust, as each may be amended
(each a "Declaration"). The Offered Securities are being registered for offering
and sale from time to time pursuant to Rule 415 under the Securities Act.
This opinion is delivered in accordance with the requirements of item
601(b)(5) of Regulation S-K under the Securities Act.
<PAGE>
In connection with this opinion, we have examined and are familiar
with originals or copies, certified or otherwise identified to our satisfaction,
of such documents as we have deemed necessary or appropriate as a basis for the
opinions set forth herein. In rendering the opinions set forth below, we have
also examined the original or a copy of certificates of public officials and
corporate officers and have made such inquiries and investigations as we have
deemed necessary. In our examination, we have assumed the genuineness of all
signatures and authority of all signatories of such documents, the authenticity
of all documents submitted to us as originals or copies, and the conformity to
the originals of all copies. We have also assumed: (i) that all documents
executed by any person or entity, other than those delivered by Bergen,
constitute the legal, valid and binding obligations of, and are enforceable
against, all such persons or entities, and (ii) the legal right and power of
each party (other than Bergen) under all applicable laws and regulations to
perform its obligations. As to any facts material to the opinions expressed
herein which we have not independently established or verified, we have relied
upon statements and representations of officers and other representatives of
Bergen and others.
Our opinions set forth below are limited to the law of the State of
New York and the federal law of the United States.
The Offered Securities may be issued from time to time on a delayed or
continuous basis and this opinion is limited to the laws, including the rules
and regulations, as in effect on the date hereof.
Based upon and subject to the foregoing, we are of the opinion that:
1. Assuming that the Senior Indenture and the Subordinated
Indenture have been duly authorized, executed and delivered by Bergen and
the applicable Trustee, when (i) the appropriate officers of Bergen have
taken all necessary action pursuant to the provisions of the Senior
Indenture or the Subordinated Indenture, as the case may be, to fix and
approve the terms of the Debt Securities, including the establishment of
the form or forms of certificates representing the Debt Securities pursuant
to the provisions of the Senior Indenture or the Subordinated Indenture, as
the case may be; and (iii) the Debt Securities are duly executed and
authenticated in accordance with the provisions of the Senior Indenture or
the Subordinated Indenture, as the case may be, and duly delivered to the
purchasers thereof upon payment of the agreed upon consideration therefor,
the Debt Securities will be validly issued and binding obligations of
Bergen, enforceable against Bergen in accordance with their terms.
2. With respect to the Guarantees, when (i) the trustees of the
applicable Trust have taken all necessary action to adopt the applicable
Declaration and to fix and determine the terms of the applicable Preferred
Securities in accordance with the terms of the applicable Declaration; (ii)
the appropriate officers of Bergen have taken all necessary action to fix
and determine the terms of the applicable Guarantees in accordance with the
Board Resolutions; (iii) the terms of the applicable Preferred Securities
<PAGE>
and the related Guarantee and the issuance and sale thereof have been duly
established in conformity with the applicable Declaration and applicable
Guarantee Agreement, respectively, so as not to violate any applicable law,
the applicable Certificate of Trust, Declaration, and the Restated
Certificate of Incorporation and By-laws of Bergen, or result in a default
(with the passage of time or otherwise) under or a breach of any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
binding upon the applicable Trust or Bergen, and so as to comply with any
requirement or restriction imposed by any court or governmental agency or
authority having jurisdiction over the applicable Trust or Bergen; (iv) the
applicable Guarantee Agreement has been duly authorized, executed and
delivered; (v) the applicable Preferred Securities have been duly issued
and delivered by the applicable Trust as contemplated by the Registration
Statement, the prospectus contained therein and the prospectus supplement
relating thereto; (vi) certificates representing the applicable Preferred
Securities have been manually authenticated by an authorized officer of the
Property Trustee (as defined in the applicable Declaration) for the
applicable Preferred Securities and registered by such Property Trustee and
delivered to the purchasers thereof; and (vii) the applicable Trust
receives the agreed-upon consideration therefor, the applicable Guarantee
will be a valid and binding obligation of Bergen enforceable in accordance
with its terms.
The opinions above are subject to the following qualifications:
(a) The opinions as to enforceability are subject to: (i) the
effect of bankruptcy, insolvency (including without limitation all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect affecting creditors' rights
generally, (ii) general principles of equity regardless of whether
enforcement is considered in a proceeding in equity or at law, including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance or
injunctive relief, (iii) in the case of any claim denominated in a foreign
currency or currency unit, provisions of law that require that a judgment
for money damages rendered in a court in the United States be expressed
only in United States dollars, (iv) the effect of general rules of contract
law that limit the enforceability of provisions requiring indemnification
of a party for liability for its own action or inaction to the extent the
action or inaction involves gross negligence, recklessness, willful
misconduct or unlawful conduct, and (v) governmental authority to limit,
delay or prohibit the making of payments outside the United States or in a
foreign currency, composite currency or currency unit. In addition, we
express no opinion with respect to any Debt Securities that are indexed or
linked to any foreign currency, composite currency, currency unit,
commodity, equity index or similar index.
(b) The opinions above with respect to the enforceability of the
Guarantees are also subject to the qualification that certain of the
guarantee and surety waivers contained in the Guarantees may be
unenforceable in whole or in part, but the inclusion of such provisions
does not affect the validity or enforceability of any Guarantee, taken as a
whole.
We acknowledge that Lowenstein Sandler PC may rely upon this opinion.
We hereby consent to the filing of this opinion with the Commission as Exhibit
5.1 to the Registration Statement. We also consent to the reference to us under
the heading "Legal Opinions" or "Legal Matters" in the Registration Statement or
<PAGE>
any related prospectus supplement. In giving this consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Commission.
Very truly yours,
/S/ SHEARMAN & STERLING
EXHIBIT 5.2
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
May 21, 1999
Bergen Capital Trust I
Bergen Capital Trust II
Bergen Capital Trust III
c/o Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, California 98680
Re: Bergen Capital Trust I, Bergen Capital Trust II and Bergen
Capital Trust III Registration Statement on Form S-3 (No.
333-74349 (the "Registration Statement")
Ladies and Gentlemen:
We have acted as special Delaware counsel for Bergen Brunswig
Corporation, a New Jersey corporation ("Bergen"), Bergen Capital Trust I, a
Delaware business trust ("Trust I"), Bergen Capital Trust II, a Delaware
business trust ("Trust II") and Bergen Capital Trust III, a Delaware business
trust ("Trust III") (Trust I, Trust II and Trust III are hereinafter
collectively referred to as the "Trusts" and sometimes hereinafter individually
referred to as a "Trust"), in connection with the matters set forth herein. At
your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust I, dated March 11, 1999,
as filed with the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on March 11,
1999;
(b) The Certificate of Trust of Trust II, dated March 11, 1999,
as filed with the Secretary of State on March 11, 1999;
<PAGE>
(c) The Certificate of Trust of Trust III, dated March 11, 1999,
as filed with the Secretary of State on March 11, 1999;
(d) The Declaration of Trust of Trust I, dated as of March 11,
1999, among Bergen and the trustees of Trust I named
therein;
(e) The Declaration of Trust of Trust II, dated as of March 11,
1999, among Bergen and the trustees of Trust II named
therein;
(f) The Declaration of Trust of Trust III, dated as of March 11,
1999, among Bergen and the trustees of Trust III named
therein;
(g) The Prospectus dated May 14, 1999, as supplemented by the
Preliminary Prospectus Supplement dated May 18, 1999
(collectively, the "Prospectus"), relating to the Preferred
Trust Securities of the Trusts, representing preferred
undivided beneficial interests in the Trusts (each, a
"Preferred Security" and collectively, the "Preferred
Securities");
(h) A form of Amended and Restated Declaration of Trust for each
of the Trusts, to be entered into among Bergen, the trustees
of the Trust named therein, and the holders, from time to
time, of undivided beneficial interests in the assets of the
Trusts (Including Exhibit A and Annexes I and II thereto)
(collectively, the "Declarations of Trust" and individually,
a "Declaration of Trust"), attached as an exhibit to the
Registration Statement; and
(i) A Certificate of Good Standing for each of the Trusts, dated
May 21, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (i) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (i) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that bears upon or is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
<PAGE>
For purposes of this opinion, we have assumed (i) that the applicable
Declaration of Trust constitutes the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
creation, operation and termination of its respective Trust, that each
Certificate of Trust is in full force and effect and has not been amended and
that each Declaration of Trust will be in full force and effect and will not be
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the
Trusts (collectively, the "Preferred Security Holders") of a Preferred Security
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the applicable Declaration of Trust
and the Registration Statement, and (vii) that the Preferred Securities are
issued and sold to the Preferred Security Holders in accordance with the
applicable Declaration of Trust and the Registration Statement. We have not
participated in the preparation of the Registration Statement or Prospectus and
assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, 12 Del.
C. Section 3801, et seq.
2. The Preferred Securities of each Trust have been duly authorized by
the Declaration for such Trust and will be duly and validly issued and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of applicable Trust.
3. The Preferred Security Holders, as beneficial owners of the
applicable Trust, will 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. We note that the Preferred
Security Holders may be obligated, pursuant to the applicable Declaration, to
<PAGE>
(i) provide indemnity and security in connection with requests or directions to
the Property Trustee to exercise its rights and remedies under the Declaration,
(ii) provide indemnity and security in connection with and pay taxes or
governmental charges arising from transfers of Preferred Securities and the
issuance of replacement Preferred Security Certificates, and (iii) undertake as
a party litigant to pay costs in any suit for the enforcement of any right or
remedy under the Declaration or against the Property Trustee, to the extent
provided in the applicable Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the reference to us as local counsel under the headings "Legal
Matters" in the Prospectus Supplement and "Legal Opinions" in the Prospectus. In
giving the foregoing consents, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder. We consent to the reliance upon this opinion as
to matter of Delaware law by Lowenstein Sandler in connection with the opinions
to be delivered by them of even date herewith.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
[LETTERHEAD OF LOWENSTEIN SANDLER]
EXHIBIT 8.1
May 21, 1999
Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, California 92868-3598
Bergen Capital Trust I
c/o Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, California 92868-3598
Re: 7.80% Trust Originated Preferred Securities of Bergen Capital Trust I
Ladies and Gentlemen:
We have acted as tax counsel to Bergen Brunswig Corporation, a New Jersey
corporation (the "Company"), and Bergen Capital Trust I (the "Trust"), a
statutory business trust organized under the Business Trust Act of the State of
Delaware (12 Del. Code Ann., tit. 12, (S)(S) 3801, et seq.), in connection with
the sale pursuant to an Underwriting Agreement dated May 20, 1999 among the
Company, the Trust, and the underwriters (the "Underwriters") named therein (the
"Underwriting Agreement") of 12,000,000 7.80% Trust Preferred Securities
(liquidation amount $25 per preferred security) of the Trust (the "Preferred
Securities"), representing undivided beneficial interests in the assets of the
Trust.
The Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption, and otherwise pursuant
to the Preferred Securities Guarantee Agreement, to be dated as of the Closing
Time (the "Guarantee Agreement"), between the Company and Chase Manhattan Bank
and Trust Company, National Association, as trustee, for the benefit of the
holders of the Preferred Securities.
In connection with the issuance of the Preferred Securities, the Trust is also
issuing 371,134 7.80% Common Securities (liquidation amount $25 per common
security) (the "Common Securities"), representing undivided beneficial interests
in the assets of the Trust.
The proceeds from the sale of the Preferred Securities and the Common Securities
are to be used by the Trust to purchase an aggregate principal amount of
$309,278,350 of 7.80% Subordinated Deferrable Interest Notes due 2039 (the
"Subordinated Notes"), to be issued by the Company. The Preferred Securities and
the Common Securities are to be issued pursuant to the Amended and Restated
Declaration of Trust, to be dated as of the Closing Time (the "Declaration"),
among the Company, as sponsor, Chase Manhattan Bank Delaware, as Delaware
trustee (the "Delaware Trustee"), Chase Manhattan Bank and Trust Company,
<PAGE>
National Association, as property trustee (the "Property Trustee"), and Donald
R. Roden, Neil F. Dimick, and Milan A. Sawdei as regular trustees (the "Regular
Trustees"). The Subordinated Notes are to be issued pursuant to an indenture,
dated as of May 14, 1999 (the "Indenture"), between the Company and Chase
Manhattan Bank and Trust Company, National Association, as debt trustee (the
"Debt Trustee").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Underwriting Agreement.
In connection with this opinion, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of (i) the Prospectus Supplement
dated May 20, 1999 (including a Prospectus dated May 14, 1999); (ii) the
Certificate of Trust filed with the Secretary of State of the State of Delaware
as of March 11, 1999, by the Regular Trustees, the Property Trustee, and the
Delaware Trustee; (iii) the most recent draft of the Declaration including the
designation of the terms of the Preferred Securities; (iv) the most recent draft
of the form of the Preferred Securities and a specimen certificate thereof; (v)
the most recent draft of the Guarantee Agreement; (vi) an executed copy of the
Indenture; (vii) the most recent draft of the form of Subordinated Notes and a
specimen certificate thereof; (viii) the most recent draft of the form of Common
Securities and a specimen certificate thereof; and (ix) an executed copy of the
Underwriting Agreement. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company and the
Trust and such agreements, certificates of public officials, certificates of
officers, trustees or other representatives of the Company, the Trust and
others, as applicable, and such other documents, certificates and records as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity of all natural persons,
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified, conformed or photostatic copies, and the
authenticity of the originals of such latter documents. In making our
examination of documents executed, or to be executed by parties other than the
Company or the Trust, we have assumed that such parties had, or will have the
power, corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action, corporate
or other, and execution and delivery by such parties of such documents and that
such documents constitute, or will constitute, valid and binding obligations of
such parties. As to any facts material to the opinions expressed herein which
were not independently established or verified, we have relied upon oral or
written statements and representations of officers, trustees and other
representatives of the Company, the Trust and others. We have also assumed that
the final Guarantee Agreement, Declaration, form of the Preferred Securities,
<PAGE>
form of the Subordinated Notes and form of the Common Securities will each be
substantially in the form of the draft of such document that we have examined.
In rendering our opinion, we have participated in the preparation of the
Prospectus Supplement. Our opinion is conditioned on, among other things, the
initial and continuing accuracy of the facts, information, covenants, and
representations set forth in the documents referred to above and the statements
and representations made by the Company and the Trust.
In rendering our opinion, we have considered the provisions of the Internal
Revenue Code of 1986, as amended, Treasury regulations (proposed, temporary and
final) promulgated thereunder, judicial decisions and Internal Revenue Service
rulings all as of the date hereof, and all of which are subject to change, which
changes may be retroactively applied. A change in the authorities upon which our
opinion is based could affect our conclusions. There can be no assurance,
moreover, that any opinion expressed herein will be accepted by the Internal
Revenue Service or, if challenged, by a court.
Based solely upon the foregoing, we are of the opinion that under current United
States federal income tax law:
(1) The Trust will be classified as a grantor trust and not as an
association taxable as a corporation for United States Federal income
tax purposes;
(2) The Subordinated Notes will be classified as indebtedness of the
Company for United States Federal income tax purposes; and
(3) Although the discussion set forth in the Prospectus Supplement under
the heading "CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES"
does not purport to discuss all possible United States federal income
tax consequences of the purchase, ownership, and disposition of the
Preferred Securities, in our opinion such discussion constitutes, in
all material respects, a fair and accurate general summary of the
United States federal income tax consequences to holders who purchase
the Preferred Securities at their original issuance, of the purchase,
ownership, and disposition of the Preferred Securities.
Except as set forth above, we express no opinion to any party as to the tax
consequences, whether United States federal, state, local or foreign, of the
<PAGE>
issuance of the Subordinated Notes, the Preferred Securities, the Common
Securities, or any transactions related to or contemplated by such issuance. We
are furnishing this opinion to you solely for your benefit in connection with
the sale of the Preferred Securities pursuant to the Underwriting Agreement and
this opinion is not to be used, circulated, quoted, or otherwise referred to for
any other purpose without our written permission. This opinion is expressed as
of the date hereof, and we disclaim any undertaking to advise you of changes of
the facts stated or assumed herein or any subsequent changes in applicable law.
We consent to the filing of this opinion as Exhibit 8.1 to the Form 8-K of the
Company dated May 21, 1999 as filed with the Securities and Exchange Commission
on May 21, 1999, and to the reference to Lowenstein Sandler PC under the caption
"Legal Opinions" in the prospectus and under the caption "Legal Matters" in the
prospectus supplement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended or the rules or regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ LOWENSTEIN SANDLER PC
LOWENSTEIN SANDLER PC
