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Exhibit 4.10
DECLARATION OF TRUST
OF
ADLT TRUST I
DECLARATION OF TRUST, dated as of June 1, 1998, between Advanced
Lighting Technologies, Inc., an Ohio corporation, as sponsor (the "Sponsor"),
and Xxxx Xxxxxxx, not in his individual capacity but solely as trustee (the
"Delaware Trustee"). The Sponsor and the Delaware Trustee hereby agree as
follows:
1. The trust created hereby shall be known as ADLT Trust I (the
"Trust").
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of ten dollars ($10), which amount shall constitute the initial
trust estate. The Delaware Trustee hereby declares that he 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. ss. 3801 et seq. (the "Business Trust Act"),
and that this document constitutes the governing instrument of the Trust. The
Delaware Trustee is hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with the
provisions of the Business Trust Act.
3. The Sponsor, the Delaware Trustee, and certain other trustees named
therein will enter into an amended and restated Declaration of Trust,
satisfactory to each such party and substantially in the form included as an
exhibit to the 1933 Act Registration Statement (as defined 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 Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Delaware Trustee 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. During such period, and except to the extent
applicable law may otherwise require, the management of the affairs of the Trust
shall be vested exclusively in the Sponsor.
4. The Sponsor and the Delaware Trustee 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-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such Registration Statement, and any related registration
statement filed pursuant to Rule 462(b) under the Securities Act (the Rule
462(b) 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 any national securities
exchange or automated quotation system and execute, in each case 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 any
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national securities exchange or quoted on any automated quotation system; (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, a purchase agreement among the Trust, the Sponsor and
any underwriter, dealer or agent relating to the Preferred Securities,
substantially in the form included as an exhibit to the 1933 Act Registration
Statement at the time it becomes effective under the Securities Act. In the
event that any filing referred to in any of clauses (i)-(iii) above is required
by the rules and regulations of the Commission, any national securities
exchange, automated quotation system or state securities or blue sky laws, to be
executed on behalf of the Trust by the Delaware Trustee, the Delaware Trustee is
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Delaware Trustee in his capacity as a Trustee 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 or any
national securities exchange, automated quotation system or state securities or
blue sky laws. In connection with all of the foregoing, the Sponsor and the
Delaware Trustee, solely in his capacity as Trustee of the Trust, may constitute
and appoint lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for the Sponsor or such Delaware Trustee and in
the Sponsor's or such Trustee's name, place and stead, in any and all
capacities, to sign and file (i) any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement with all exhibits thereto, and other documents in
connection therewith, and (ii) the Rule 462(b) 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 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 Delaware Trustee shall initially be the only trustees of the
Trust. Thereafter, the Sponsor may increase or decrease (but not below one) the
number of trustees of the Trust by executing a written instrument fixing such
number, which instrument may be the amended and restated Delcaration referred to
in paragraph 3; PROVIDED, HOWEVER, that so long as it is required by the
Business Trust Act, one trustee of the Trust shall be either a natural person
who is a resident of the State of Delaware or an entity other than a natural
person that has its principal place of business in the State of Delaware and
that, in either case, otherwise meets the requirements of applicable Delaware
law. Subject to the foregoing, the Sponsor is entitled to appoint or remove
without cause any trustee at any time. The Delaware Trustee may resign upon
thirty days' prior written notice to the Sponsor.
7. The Delaware Trustee, in his capacity as trustee, shall not have any
of the powers or duties of the Sponsor set forth herein and shall, except to the
extent otherwise required by
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applicable law, be a trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807 of the Business Trust Act.
8. This Declaration of Trust shall be governed by, and construed in
accordance with, 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.
Xxxx Xxxxxxx,
not in his individual capacity
but solely as Delaware Trustee
/s/ Xxxx Xxxxxxx
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ADVANCED LIGHTING TECHNOLOGIES,
INC.,
as Sponsor
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title:
