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EXHIBIT 4.3
EXECUTION COPY
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of March 1, 1996, between Ohio
Edison Company, an Ohio corporation, as Sponsor, and The Bank of New York, a
New York banking corporation, and The Bank of New York (Delaware), a Delaware
banking corporation, as Trustees. The Sponsor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "Ohio Edison
Financing Trust II", in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt
of such amount in trust from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the
trust estate in trust for the Sponsor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq. (the
"Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of State in
the form attached hereto. The Trust is hereby established by the Sponsor and
the Trustees for the purposes of (i) issuing preferred securities representing
undivided beneficial interests in the assets of the Trust in exchange for
outstanding shares of the Sponsor's 7.75% Class A Preferred Stock and
delivering such shares to the Sponsor in consideration for the deposit by the
Sponsor as trust assets of subordinated debentures of the Sponsor, (ii) issuing
and selling common securities representing undivided beneficial interests in
the assets of the Trust to the Sponsor in exchange for cash and investing the
proceeds thereof in additional subordinated debentures of the Sponsor to be
held as assets of the Trust and (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an amended
and restated Declaration of Trust, satisfactory to each such party and
substantially in the form to be included as Exhibit 4.5 to the Registration
Statement referred to below, to
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provide for the contemplated operation of the Trust created hereby and the
issuance of the preferred securities (the "Preferred Securities") and common
securities referred to therein and herein. Prior to the execution and delivery
of such amended and restated Declaration of Trust, the Trustees shall not have
any duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on Form S-4 (the
"Registration Statement") and any pre-effective or post-effective amendments to
such Registration Statement, relating to the registration under the Securities
Act of 1933, as amended, of the Preferred Securities of the Trust, (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12(b)
of the Securities Exchange Act of 1934, as amended and (c) an Issuer Tender
Offer Statement on Schedule 13E-4 and any other tender offer statement required
to be filed by the Trust with the Commission (including, if necessary, Schedule
14D-1) relating to the exchange offer (the "Offer") described in the
Registration Statement (collectively, the "Tender Offer Schedules") and any
amendment or supplement thereto; (ii) to prepare and file with the New York
Stock Exchange and execute on behalf of the Trust a listing application and all
other applications, statements, certificates, agreements and other instruments
as shall be necessary or desirable to cause the Preferred Securities to be
listed on the New York Stock Exchange; (iii) to prepare and file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorneys for service of process and other papers and
documents as shall be necessary or desirable to register the Preferred
Securities under the securities or "Blue Sky" laws of such jurisdictions as the
Sponsor, on behalf of the Trust, may deem necessary or desirable and (iv) to
negotiate the terms of and execute on behalf of the Trust that certain Dealer
Manager Agreement among the Trust, the Sponsor and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated relating to the Offer, substantially in the form
to be included as Exhibit 1 to the Registration Statement. In the event that
any filing referred to in clauses (i)-(iii) above is required by the rules and
regulations of the Commission, the New York Stock Exchange or state securities
or blue sky laws, to be executed on behalf of the Trust by the Trustees, the
Sponsor is hereby authorized and directed to join
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in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that The Bank of New York and The Bank of New
York (Delaware), in their capacities as Trustees of the Trust shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission, the
New York Stock Exchange or state securities or blue sky laws. In connection
with all of the foregoing, the Sponsor and each Trustee, solely in its capacity
as Trustee of the Trust, hereby constitutes and appoints Xxxx X. Xxxxxxxx, Xx.
and Xxxxxxx X. Xxxxxx, and each of them, as his, her or its, as the case may
be, true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for the Sponsor or such Trustee or in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the Registration Statement,
the 1934 Act Registration Statement and the Tender Offer Schedules and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Sponsor or such Trustee might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or their substitute or substitutes, shall do or cause to be done by
virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be two (2) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase
or decrease the number of Trustees; provided that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. The Trustees may resign upon thirty days prior notice to
the Sponsor.
7. The Trust shall terminate before the issuance of any
Preferred Securities at the election of the Sponsor.
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IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
OHIO EDISON COMPANY,
as Sponsor
By: /s/ Xxx X. Xxxxxx, XX
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Name: Xxx X. Xxxxxx, XX
Title: Assistant Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxxx
Title: Assistant Vice
President
THE BANK OF NEW YORK (Delaware),
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice
President
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