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Exhibit 4.6.5
DECLARATION OF TRUST
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DECLARATION OF TRUST, dated as of June 1, 1999, between Xxxxx Corning,
a Delaware corporation, as Sponsor, Wilmington Trust Company, a Delaware banking
corporation, as Delaware Trustee, and X. Xxxxxxx Xxxxxx and Xxxxxxxxx Xxxxxx, as
Regular Trustees (collectively with the Delaware Trustee, the "Trustees"). The
Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Xxxxx
Corning Capital IV", 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. Sections 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 in the office of the Secretary of State of the State of Delaware in the
form attached hereto. The Trust is hereby established by the Sponsor and the
Trustees for the purposes of (i) issuing preferred securities ("Preferred
Securities") representing undivided beneficial interests in the assets of the
Trust in exchange for cash and investing the proceeds thereof in debt securities
of the Sponsor, (ii) issuing and selling common securities ("Common Securities"
and, together with the 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 debt
securities of the Sponsor and (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities by the
Trust, the Sponsor and the Trustees intend to enter into an amended and restated
Declaration of Trust, satisfactory to each such party and substantially in the
form to be included as an exhibit to the 1933 Act Registration Statement
referred to below at the time such registration statement becomes effective
under the Securities Act of 1933, as amended (the "Securities Act"), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities and the 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, 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
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Form S-3 (the "1933 Act Registration Statement"), including any pre-effective
or post-effective amendments to such Registration Statement, relating to the
registration of the Preferred Securities under the Securities Act and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including any pre-effective or post-effective amendments thereto) relating to
the registration of the Preferred Securities under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to prepare and file with the
New York Stock Exchange and execute 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, in each
case on behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney 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, an underwriting agreement among the Trust, the Sponsor and any
underwriter, dealer or agent relating to the Preferred Securities, substantially
in the form to be included as an exhibit to, or incorporated by reference in,
the 1933 Act Registration Statement. It is hereby acknowledged and agreed that
in connection with any execution, filing or document referred to in clauses
(i)-(iii) above, (A) any Regular Trustee (or his attorneys-in-fact and agents or
the Sponsor as permitted herein) is authorized on behalf of the Trust to file
and execute such document on behalf of the Trust and (B) the Delaware Trustee
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 or the New York Stock Exchange or state securities or blue sky laws,
and in such case only to the extent so required. In connection with all of the
foregoing, the Sponsor and each Regular Trustee, solely in its capacity as
Trustee of the Trust, hereby constitutes and appoints Xxxxx X. Xxxxx, Xxxxxxx X.
Xxxxxx and Xxxxxx Xxxxxxx, and each of them, his, her or its, as the case may
be, true and lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for the Sponsor or such Trustee and in the
Sponsor's or such Trustee's name, place and stead in any and all capacities, to
sign and file (i) the 1933 Act Registration Statement and the 1934 Act
Registration Statement and any and all amendments (including post-effective
amendments) or supplements thereto, with all exhibits thereto, and other
documents in connection therewith, and (ii) a registration statement and any and
all amendments thereto filed pursuant to Rule 462(b) under the Securities Act
with the Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing 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 attorneys-in-fact and agents or any of them, or their or his or her
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 three (3) 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, however, that the number of Trustees shall in
no event be less than three (3); and provided, further, however, that to the
extent required by the Business Trust Act, one Trustee shall either be a natural
person who is a
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resident of the State of Delaware or, if not a natural person, an entity that
has its principal place of business in the State of Delaware and meets any other
requirements imposed by applicable law. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause any Trustee at any time. Any Trustee
may resign upon thirty days prior notice to the Sponsor; provided, however, that
the Delaware Trustee may resign immediately upon notice to the Sponsor if the
Delaware Trustee is required to join in any filing or execute on behalf of the
Trust any document pursuant to the provisions of paragraph 4 hereof and, upon
giving such notice, the Delaware Trustee shall not be required to join in any
such filing or execute on behalf of the Trust any such document; provided,
further, however, that no resignation of the Delaware Trustee shall be effective
until a successor Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware Trustee.
7. To the fullest extent permitted by applicable law, the Sponsor
agrees to indemnify (i) the Delaware Trustee, (ii) any affiliate of the Delaware
Trustee, and (iii) any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Delaware
Trustee (each of the persons or entities in (i) through (iii) being referred to
as an "Indemnified Person") for, and to hold each Indemnified Person harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this paragraph 7 shall survive the termination of
this Declaration.
8. The Trust may terminate without issuing any Trust Securities at the
election of the Sponsor.
9. This Declaration shall be governed by the laws of the State of
Delaware, without regard to conflict of laws principles.
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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.
XXXXX CORNING, as Sponsor
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
/s/ X. Xxxxxxx Xxxxxx
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X. Xxxxxxx Xxxxxx, as Trustee
/s/ Xxxxxxxxx Xxxxxx
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Xxxxxxxxx Xxxxxx, as Trustee
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