EXHIBIT 4.10
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of June 30, 1998, between Unocal
Corporation, a Delaware corporation, as Sponsor, The Bank of New York, a New
York banking corporation, as trustee, The Bank of New York (Delaware), a
Delaware banking corporation, as trustee, Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx
and Xxxxxxx X. Xxxxxx as Regular Trustees (collectively with the other trustees,
the "Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Unocal
Capital 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 ("Trust Preferred Securities") representing
undivided beneficial interests in the assets of the Trust in exchange for cash
and investing the proceeds thereof in junior subordinated debentures of the
Sponsor, (ii) issuing and selling common securities ("Trust Common Securities"
and, together with the Trust Preferred Securities, "Trust 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
junior subordinated debentures of the Sponsor 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 4.11 to the Registration Statement referred to
below, to provide for the contemplated operation of the Trust created hereby and
the issuance of the Trust Preferred Securities and Trust Common Securities
referred to therein. 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,
in each
case on behalf of the Trust as the sponsor of the Trust: (i) to prepare and file
with the Securities and Exchange Commission (the "Commission"), in each case on
behalf of the Trust, (a) a Registration Statement on Form S-3 and any
pre-effective or post-effective amendments to such Registration Statement (the
"Registration Statement"), relating to the registration under the Securities Act
of 1933, as amended, of the Trust Preferred Securities of the Trust, and (b) a
Registration Statement on Form 8-A or other form issued or permitted by the
Commission, including all pre-effective and post-effective amendments thereto
(the "1934 Act Registration Statement"), relating to the registration of the
Trust Preferred Securities under the Securities Exchange Act of 1934, as
amended, (ii) to prepare and file, in each case on behalf of the Trust, with the
New York Stock Exchange, the American Stock Exchange or such other national
securities exchange or the Nasdaq National Market as the Sponsor shall
determine, a listing or other similar application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Trust Preferred Securities to be listed or approved
for quotation on the New York Stock Exchange, the American Stock Exchange or
such other national securities exchange or the Nasdaq National Market; (iii) to
prepare and file, in each case on behalf of the Trust, such applications,
reports, surety bonds, irrevocable consents, appointments of attorneys for
service of process and other papers, documents and agreements as shall be
necessary or desirable to register the Trust 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, on behalf of
the Trust, the form of Underwriting Agreement among the Trust, the Sponsor, and
the underwriters to be named in Schedule I thereto, substantially in the form to
be included as Exhibit 1.4 to the Registration Statement. It is hereby
acknowledged and agreed that in connection with any documents referred to in
clauses (i)-(iv) above, (A) any Regular Trustee (or his attorneys-in-fact and
agents as permitted herein or the Sponsor is authorized on behalf of the Trust
to execute such documents on behalf of the Trust, provided that the Registration
Statement shall be signed by all of the Regular Trustees, and (B) 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 other national securities
exchange or the Nasdaq National Market) or state securities or "Blue Sky" laws,
and in such case only to the extent so required. In connection with all of the
foregoing, each Regular Trustee, solely in his capacity as Trustee of the Trust,
hereby constitutes and appoints Xxxxxxx X. Xxxx, Xxx X. Xxxxx and Xxxxxxx X.
Xxxxxxx, and each of them, as his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for such Regular Trustee or
in such Regular Trustee's name, place and stead, in any and all capacities, to
sign the Registration Statement and the 1934 Act Registration Statement and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents,
or any of them, 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 such Regular Trustee might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Declaration of Trust may be executed in counterparts.
2
6. The number of Trustees initially shall be five (5) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor 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 may terminate without issuing any Trust Preferred Securities
and Trust Common Securities at the election of the Sponsor.
3
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.
UNOCAL CORPORATION, as Sponsor
By: /s/ X. X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
/s/ X. X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx, as Regular Trustee
/s/ X. X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx, as Regular Trustee
/s/ X. X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx, as Regular Trustee
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE)
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
4
