Amended And Restated Declaration of Trust

EXHIBIT 4.1


AMENDED AND RESTATED DECLARATION
OF TRUST


BERGEN CAPITAL TRUST I


Dated as of May 26, 1999


Table of Contents
Page


ARTICLE I
INTERPRETATION AND DEFINITIONS


Section 1.1 Definitions................................................. 1


ARTICLE II
TRUST INDENTURE ACT


Section 2.1 Trust Indenture Act; Application............................. 7 Section 2.2 Lists of Holders of Securities............................... 8 Section 2.3 Reports by the Property Trustee.............................. 8 Section 2.4 Periodic Reports to the Property Trustee..................... 8 Section 2.5 Evidence of Compliance with Conditions Precedent............. 9 Section 2.6 Events of Default; Waiver.................................... 9 Section 2.7 Event of Default; Notice..................................... 11


ARTICLE III
ORGANIZATION


Section 3.1 Name......................................................... 11 Section 3.2 Office....................................................... 12 Section 3.3 Purpose...................................................... 12 Section 3.4 Authority.................................................... 12 Section 3.5 Title to Property of the Trust............................... 13 Section 3.6 Powers and Duties of the Regular Trustees.................... 13 Section 3.7 Prohibition of Actions by the Trust and the Trustees......... 17 Section 3.8 Powers and Duties of the Property Trustee.................... 17 Section 3.9 Certain Duties and Responsibilities of the Property Trustee.. 20 Section 3.10 Certain Rights of the Property Trustee....................... 21 Section 3.11 Delaware Trustee............................................. 23 Section 3.12 Execution of Documents....................................... 23 Section 3.13 Not Responsible for Recitals or Issuance of Securities....... 23 Section 3.14 Duration of Trust............................................ 23 Section 3.15 Mergers...................................................... 23


ARTICLE IV
SPONSOR


Section 4.1 Sponsor's Purchase of Common Securities...................... 25 Section 4.2 Responsibilities of the Sponsor.............................. 25 Section 4.3 Right to Proceed............................................. 26


ARTICLE V
TRUSTEES


Section 5.1 Number of Trustees........................................... 26 Section 5.2 Delaware Trustee............................................. 27 Section 5.3 Property Trustee; Eligibility................................ 27 Section 5.4 Qualifications of Regular Trustees and Delaware Trustee...... 28 Section 5.5 Regular Trustees............................................. 28 Section 5.6 Appointment, Removal and Resignation of Trustees............. 29 Section 5.7 Vacancies Among Trustees..................................... 30 Section 5.8 Effect of Vacancies.......................................... 30 Section 5.9 Meetings..................................................... 30 Section 5.10 Delegation of Power.......................................... 31 Section 5.11 Merger, Conversion, Consolidation or Succession to
Business..................................................... 31


ARTICLE VI
DISTRIBUTIONS


Section 6.1 Distributions................................................ 32


ARTICLE VII
ISSUANCE OF SECURITIES


Section 7.1 General Provisions Regarding Securities...................... 32


ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST


Section 8.1 Dissolution and Termination of Trust......................... 33


ARTICLE IX
TRANSFER OF INTERESTS


Section 9.1 Transfer of Securities....................................... 34 Section 9.2 Transfer of Certificates..................................... 35 Section 9.3 Deemed Security Holders...................................... 36 Section 9.4 Book Entry Interests......................................... 37 Section 9.5 Notices to Clearing Agency................................... 38 Section 9.6 Appointment of Successor Clearing Agency..................... 38 Section 9.7 Definitive Preferred Security Certificates Under Certain
Circumstances................................................ 39 Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates............ 40


ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS


Section 10.1 Liability.................................................... 40 Section 10.2 Exculpation.................................................. 41 Section 10.3 Fiduciary Duty............................................... 41 Section 10.4 Indemnification and Compensation............................. 42 Section 10.5 Outside Businesses........................................... 43


ARTICLE XI
ACCOUNTING


Section 11.1 Fiscal Year.................................................. 43 Section 11.2 Certain Accounting Matters................................... 44 Section 11.3 Banking...................................................... 44 Section 11.4 Withholding.................................................. 44


ARTICLE XII
AMENDMENTS AND MEETINGS


Section 12.1 Amendments................................................... 45 Section 12.2 Meetings of the Holders of Securities; Action by Written
Consent...................................................... 47


ARTICLE XIII
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE


Section 13.1 Representations and Warranties of the Property Trustee....... 48 Section 13.2 Representations and Warranties of the Delaware Trustee....... 49


ARTICLE XIV
MISCELLANEOUS


Section 14.1 Notices...................................................... 50 Section 14.2 Governing Law................................................ 51 Section 14.3 Intention of the Parties..................................... 51 Section 14.4 Headings..................................................... 51 Section 14.5 Successors and Assigns....................................... 51 Section 14.6 Partial Enforceability....................................... 51 Section 14.7 Counterparts................................................. 52


Signatures .............................................................. 53


Exhibit A Terms of Preferred Securities and Common Securities............... 55


AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BERGEN CAPITAL TRUST I


May 26, 1999


THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration"), dated and effective as of May 26, 1999, by the undersigned trustees (together with all other Persons from time to time duly appointed and serving as trustees in accordance with the provisions of this Declaration, the "Trustees"), Bergen Brunswig Corporation, a New Jersey corporation, as trust sponsor (the "Sponsor"), and by the holders, from time to time, of the securities representing undivided beneficial interests in the assets of the Bergen Capital Trust I (the "Trust") to be issued pursuant to this Declaration;


WITTNESSETH THAT


WHEREAS, the Trustees and the Sponsor established the Trust under the Business Trust Act (as defined herein) pursuant to a Declaration of Trust, dated as of March 11, 1999 (the "Original Declaration") and a Certificate of Trust filed with the Secretary of State of Delaware on March 11, 1999, for the sole purpose of issuing and selling certain securities representing undivided beneficial interests in the assets of the Trust and investing the proceeds thereof in certain Subordinated Notes (as defined herein) of the Subordinated Notes Issuer (as defined herein);


WHEREAS, as of the date hereof, no interests in the Trust have been issued; and


WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend and restate each and every term and provision of the Original Declaration,


NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a business trust under the Business Trust Act and that this Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the benefit of the holders, from time to time, of the securities representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to the provisions of this Declaration.


ARTICLE I


INTERPRETATION AND DEFINITIONS


Section 1.1 Definitions.


Unless the context otherwise requires:


(a) Capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1;


(b) a term defined anywhere in this Declaration has the same meaning throughout;


(c) all references to "the Declaration" or "this Declaration" are to this Amended and Restated Declaration of Trust as modified, supplemented or amended from time to time;


(d) all references in this Declaration to Articles and Sections and Exhibits are to Articles and Sections of and Exhibits to this Declaration unless otherwise specified;


(e) a term defined in the Trust Indenture Act has the same meaning when used in this Declaration unless otherwise defined in this Declaration; and


(f) a reference to the singular includes the plural and vice versa.


The following terms shall have the following meanings:


"Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act as in effect on the date of this Declaration.


"Authorized Officer" of a Person means any Person that is authorized to bind such Person.


"Book Entry Interest" means a beneficial interest in a Global Certificate, ownership and transfers of which shall be maintained and made through book entries by a Clearing Agency as described in Section 9.4.


"Business Day" means any day other than a day on which banking institutions in New York, New York are authorized or required by law to close.


"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Sections 3801 et seq., as it may be amended from time to time, or any successor legislation.


"Certificate" means a Common Security Certificate or a Preferred Security Certificate.


"Clearing Agency" means an organization registered as a "Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary for the Preferred Securities and in whose name, or in the name of a nominee of


that organization, shall be registered a Global Certificate and which shall undertake to effect book entry transfers and pledges of the Preferred Securities.


"Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Clearing Agency effects book entry transfers and pledges of securities deposited with the Clearing Agency.


"Closing Date" means May 26, 1999.


"Code" means the Internal Revenue Code of 1986, as amended, or any successor legislation.


"Commission" means the Securities and Exchange Commission.


"Common Security" has the meaning specified in Section 7.1.


"Common Securities Guarantee" means the guarantee agreement to be dated as of May 26, 1999 of the Sponsor in respect of the Common Securities.


"Common Securities Subscription Agreement" has the meaning set forth in Section 3.6(c).


"Common Security Certificate" means a definitive certificate in fully registered form representing a Common Security substantially in the form of Annex II to Exhibit A attached hereto.


"Covered Person" means: (a) any officer, director, shareholder, partner, member, representative, employee or agent of: (i) the Trust; or (ii) the Trust's Affiliates; and (b) any Holder of Securities.


"Definitive Preferred Security Certificates" has the meaning set forth in Section 9.4.


"Delaware Secretary of State" means the Office of the Secretary of State of the State of Delaware.


"Delaware Trustee" has the meaning set forth in Section 5.1.


"Direct Action" has the meaning set forth in Section 3.8(e).


"Distribution" means a distribution payable to Holders of Securities in accordance with Section 6.1.


"DTC" means The Depository Trust Company, the initial Clearing Agency.


"Event of Default" in respect of the Securities means an Event of Default (as defined in the Indenture) has occurred and is continuing in respect of the Subordinated Notes.


"Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time or any successor legislation.


"Global Certificate" has the meaning set forth in Section 9.4.


"Holder" means a Person in whose name a Certificate representing a Security is registered, such Person being a beneficial owner within the meaning of the Business Trust Act.


"Indemnified Person" means


(i) any Trustee;


(ii) any Affiliate of any Trustee;


(iii) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or


(iv) any employee or agent of the Trust or its Affiliates.


"Indenture" means the Indenture dated as of May 14, 1999 among the Subordinated Notes Issuer and Chase Manhattan Bank and Trust Company, National Association, as trustee, as supplemented by an Officers' Certificate (as defined in the Indenture) dated as of May 24, 1999 pursuant to Section 3.01 of the Indenture.


"Investment Company" means an investment company as defined in the Investment Company Act.


"Investment Company Act" means the Investment Company Act of 1940, as amended from time to time or any successor legislation.


"Legal Action" has the meaning set forth in Section 3.6(h).


"Majority in liquidation amount of the Securities" means, except as provided in the terms of the Preferred Securities and by the Trust Indenture Act, Holder(s) of Securities voting together as a single class or, as the context may require, Holder(s) of Preferred Securities or Common Securities voting separately as a class, who vote Securities of a relevant class and the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to


the date upon which the voting percentages are determined) of the Securities voted by such Holders represents more than 50% of the above stated aggregate liquidation amount of all Securities of such class.


"Officers' Certificate" means, with respect to any Person, a certificate signed by two Authorized Officers of such Person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Declaration shall include:


(a) a statement that each officer signing the Certificate has read the covenant or condition and the definition relating thereto;


(b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Certificate;


(c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and


(d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with.


"Paying Agent" has the meaning specified in Section 3.8(h).


"Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.


"Preferred Securities Guarantee" means the guarantee agreement to be dated as of May 26, 1999 of the Sponsor in respect of the Preferred Securities.


"Preferred Security" has the meaning specified in Section 7.1.


"Preferred Security Beneficial Owner" or "Beneficial Owner of Preferred Securities" means, with respect to a Book Entry Interest, a Person who is the beneficial owner of such Book Entry Interest, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of such Clearing Agency).


"Preferred Security Certificate" means a certificate representing a Preferred Security substantially in the form of Annex I to Exhibit A attached hereto.


"Property Trustee" means the Trustee meeting the eligibility requirements set forth in Section 5.3.


"Property Trustee Account" has the meaning set forth in Section 3.8(c).


"Purchase Agreement" means the purchase agreement or underwriting agreement for the offering and sale of Preferred Securities, substantially in the form of Exhibit B attached hereto.


"Quorum" means a majority of the Regular Trustees or if there are only two Regular Trustees, both of them.


"Regular Trustee" means any Trustee other than the Property Trustee or the Delaware Trustee.


"Related Party" means, with respect to the Sponsor, any direct or indirect wholly owned subsidiary of the Sponsor or any other Person that owns, directly or indirectly, 100% of the outstanding voting securities of the Sponsor.


"Responsible Officer" means, with respect to the Property Trustee, any officer of the Property Trustee with direct responsibility for the administration of this declaration, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject.


"Securities" means the Common Securities and the Preferred Securities.


"Securities Act" means the Securities Act of 1933, as amended, or any successor legislation.


"Special Event" has the meaning set forth in the terms of the Securities.


"Sponsor" means Bergen Brunswig Corporation, a New Jersey corporation, or any permitted successor thereof under the Indenture, in its capacity as sponsor of the Trust.


"Subordinated Notes" means the series of Subordinated Notes to be issued by the Subordinated Notes Issuer under the Indenture to be held by the Property Trustee pursuant to Section 3.6(d), a specimen certificate for such series of Subordinated Notes being attached hereto as Exhibit C.


"Subordinated Notes Issuer" means Bergen Brunswig Corporation, a New Jersey corporation.


"Subordinated Notes Subscription Agreement" has the meaning set forth in Section 3.6(d).


"Subordinated Notes Trustee" means Chase Manhattan Bank and Trust Company, National Association, as trustee under the Indenture until a successor is appointed thereunder and thereafter means such successor trustee.


"Successor Property Trustee" means a successor Trustee possessing the qualifications to act as Property Trustee under Section 5.3(a).


"25% in liquidation amount of the Securities" means, except as provided in the terms of the Preferred Securities and by the Trust Indenture Act, Holder(s) of Securities voting together as a single class or, as the context may require, Holder(s) of Preferred Securities or Common Securities, voting separately as a class, who vote Securities of a relevant class and the liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of the Securities voted by such Holders represents 25% of the above stated aggregate liquidation amount of all Securities of such class.


"Treasury Regulations" means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).


"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation.


"Trustee" or "Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue to serve as a trustee in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder.


ARTICLE II


TRUST INDENTURE ACT


Section 2.1 Trust Indenture Act; Application.


(a) This Declaration is subject to the provisions of the Trust Indenture Act that are required to be part of this Declaration and shall, to the extent applicable, be governed by such provisions;


(b) the Property Trustee shall be the only Trustee which is a trustee for the purposes of the Trust Indenture Act;


(c) if and to the extent that any provision of this Declaration limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control; and


(d) the application of the Trust Indenture Act to this Declaration shall not affect the nature of the Securities as equity securities representing undivided beneficial interests in the assets of the Trust.


Section 2.2 Lists of Holders of Securities.


(a) Each of the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide the Property Trustee (i) semiannually, not later than June 30 and December 31 in each year, a list, in such form as the Property Trustee may reasonably require, containing all the information in the possession or control of the Sponsor, or any of its Paying Agents other than the Property Trustee, as to the names and addresses of the Holders of Securities ("List of Holders") as of the preceding June 15 or December 15, as the case may be, and (ii) at such other times as the Property Trustee may request in writing, within 30 days after the receipt by the Trust of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished. The Property Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in each List of Holders given to it or which it receives in its capacity as Paying Agent (if acting in such capacity) provided that the Property Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders.


(b) The Property Trustee shall comply with its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.


Section 2.3 Reports by the Property Trustee.


Within 60 days after May 15 of each year, commencing May 15, 1999, the Property Trustee shall provide to the Holders of the Securities such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Property Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act.


Section 2.4 Periodic Reports to the Property Trustee.


Each of the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to the Property Trustee such documents, reports and information as required by Section 314 of the Trust Indenture Act (if any) and the compliance


certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act.


Section 2.5 Evidence of Compliance with Conditions Precedent.


Each of the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Declaration which relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate.


Section 2.6 Events of Default; Waiver.


(a) The Holders of a Majority in liquidation amount of Preferred Securities may, by vote, on behalf of the Holders of all of the Preferred Securities, waive any past Event of Default in respect of the Preferred Securities and its consequences, provided that, if the underlying Event of Default under the Indenture:


(i) is not waivable under the Indenture, the Event of Default
under this Declaration shall also not be waivable; or


(ii) requires the consent or vote of greater than a majority in
...