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Exhibit 4.9.2
DECLARATION OF TRUST
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DECLARATION OF TRUST, dated as of April 2, 1997, 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 III", 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 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 junior
subordinated debentures 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 junior subordinated debentures 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
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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-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 the
Toronto Stock Exchange 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 the New York Stock Exchange and the Toronto
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 the Toronto
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 Xxxxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxxxx and Xxxxxxx
X. Xxxxxx, 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
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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 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
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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: VP and Treasurer
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
/s/ X. Xxxxxxx Xxxxxx, as Trustee
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X. Xxxxxxx Xxxxxx, as Trustee
/s/ Xxxxxxxxx Xxxxxx
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Xxxxxxxxx Xxxxxx, as Trustee
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