EXHIBIT 4(L)
================================
DECLARATION OF TRUST
Alcoa Trust I
Dated as of July 10, 1998
================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.................................................. 1
-----------
ARTICLE II
ORGANIZATION
SECTION 2.1 Name......................................................... 4
----
SECTION 2.2 Office....................................................... 4
------
SECTION 2.3 Purpose...................................................... 4
-------
SECTION 2.4 Authority.................................................... 5
---------
SECTION 2.5 Title to Property of the Trust............................... 5
------------------------------
SECTION 2.6 Powers of the Trustees....................................... 5
----------------------
SECTION 2.7 Filing of Certificate of Trust............................... 6
------------------------------
SECTION 2.8 Duration of Trust............................................ 7
-----------------
SECTION 2.9 Responsibilities of the Sponsor.............................. 7
-------------------------------
SECTION 2.10 Declaration Binding on Securities Holders.................... 7
-----------------------------------------
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees..................................................... 8
--------
SECTION 3.2 Regular Trustees............................................. 8
----------------
SECTION 3.3 Delaware Trustee............................................. 8
----------------
SECTION 3.4 Institutional Trustee........................................ 9
---------------------
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration.............................................. 9
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.................................................. 9
-----------
SECTION 4.2 Fiduciary Duty............................................... 10
--------------
SECTION 4.3 Indemnification.............................................. 11
---------------
SECTION 4.4 Outside Businesses........................................... 14
------------------
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments................................................... 15
----------
SECTION 5.2 Termination of Trust......................................... 15
--------------------
SECTION 5.3 Governing Law................................................ 16
-------------
SECTION 5.4 Headings..................................................... 16
--------
SECTION 5.5 Successors and Assigns....................................... 16
----------------------
i
SECTION 5.6 Partial Enforceability....................................... 16
----------------------
SECTION 5.7 Counterparts................................................. 16
------------
ii
DECLARATION OF TRUST
OF
Alcoa Trust I
July 10, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of July
10, 1998 by the Trustees (as defined herein), the Sponsor (as defined herein),
and by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act for the purpose of issuing
and selling certain securities representing undivided beneficial interests in
the assets of the Trust and investing the proceeds thereof in certain Debentures
of the Debenture Issuer (as defined herein);
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended from
time to time;
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act or any successor rule thereunder .
"Business Day" means any day other than a day on which banking
------------
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. C. (S) 3801 et seq., as it may be amended from time to time, or
------- -- -- ---
any successor legislation.
"Commission" means the Securities and Exchange Commission.
----------
"Common Securities" means securities representing undivided
-----------------
beneficial ownership interests in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Covered Person" means (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the issuer of
----------------
the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
----------
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means the trustee under the Indenture until a
-----------------
successor is appointed thereunder, and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
4.3(b).
2
"Indemnified Person" means a Parent Indemnified Person or a Fiduciary
------------------
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent
---------
and the Debenture Trustee and any indenture supplemental thereto pursuant to
which the Debentures are to be issued.
"Institutional Trustee" has the meaning set forth in Section 3.4.
---------------------
"Parent" means Aluminum Company of America, a Pennsylvania
------
corporation or any successor entity in a merger.
"Parent Indemnified Person" means (a) any Regular Trustee; (b) any
-------------------------
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" means securities representing undivided
--------------------
beneficial ownership interests in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee
---------------
and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred
----------
Securities.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
-------
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
----
The Trust created by this Declaration is named "Alcoa Trust I." The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
------
The address of the principal office of the Trust is c/o Aluminum
Company of America, 425 Sixth Avenue, Alcoa Building, Pittsburgh, Pennsylvania
15219-1850. (Effective August 14, 1998, the address of the principal office of
the Trust will be c/o Aluminum Company of America, 201 Isabella Street,
Pittsburgh, Pennsylvania 15212-5858.) At any time, the Regular Trustees may
designate another principal office.
SECTION 2.3 Purpose.
-------
It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under the Business Trust Act, and that this
Declaration 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 and investing the proceeds thereof
in Debentures, (ii) issuing and selling Common Securities to the Sponsor in
exchange for cash and investing the proceeds thereof in additional Debentures
and (iii) engaging in such other activities as are necessary, convenient or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax purposes as a grantor
trust.
Concurrent with the first issuance of any Securities by the Trust, the
Sponsor and the Trustees intend to enter into an amended and restated
Declaration of Trust or Trust agreement, satisfactory to each such party and
substantially in the form included as an exhibit to the Securities Act
Registration Statement referred to below at the time such registration statement
becomes effective under the
4
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 or Trust agreement, 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, in the case of the Regular Trustees, as
may be necessary to obtain, prior to such execution and delivery, any licenses,
consents or approvals required by applicable law or otherwise.
SECTION 2.4 Authority.
---------
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no Person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and
authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6 Powers of the Trustees.
----------------------
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
-------- -------
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
-------- -------
shall be no interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor (the "Registration
Statement"), including any amendments thereto in relation to the
registration of the Preferred Securities under the Securities Act;
5
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file on behalf of the Trust, with the New York
Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing or quotation upon notice of issuance of
any Preferred Securities 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 such exchange or national market, as the
case may be;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the Preferred Securities
under Section 12(b) or 12(g) of the Exchange Act, if the Sponsor in
its sole discretion determines that such a filing is necessary or
appropriate; and
(v) negotiate the terms of, and execute and enter into, on
behalf of the Trust, an underwriting agreement and pricing agreement
providing for the sale of the Preferred Securities substantially in
the form included as an exhibit to the Registration Statement at the
time it becomes effective under the Securities Act;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants and provide for reasonable compensation for such services;
(d) to incur expenses that are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
------------------------------
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
6
SECTION 2.8 Duration of Trust.
-----------------
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for forty (40) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing of any documents to be executed and filed by the
Trust, as the Sponsor deems necessary or advisable in order to comply with
the applicable laws of any such States;
(c) at the sole discretion of the Sponsor, to prepare for filing by
the Trust of an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing or
quotation upon notice of issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) or 12(g) of the Exchange
Act, including any amendments thereto, if the Sponsor in its sole
discretion determines that such a filing is necessary or appropriate; and
(e) to negotiate the terms of an underwriting agreement and pricing
agreement providing for the sale of the Preferred Securities.
SECTION 2.10 Declaration Binding on Securities Holders.
-----------------------------------------
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
--------
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. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; provided, however that the number
-------- -------
of Trustees shall in no event be less than two (2); provided further that one
-------- --------
Trustee, in the case of a natural person, shall be a person who is a resident of
the State of Delaware or that, if not a natural person, is an entity that has
its principal place of business in the State of Delaware (the "Delaware
Trustee"); provided further that there shall be at least one trustee who is an
employee or officer of, or is affiliated with the Parent (a "Regular Trustee").
SECTION 3.2 Regular Trustees.
----------------
The initial Regular Trustees shall be:
Cynthia E. Holloway
Robert G. Wennemer
Richard B. Kelson
(a) Except as expressly set forth in this Declaration, any power of
the Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to cause the Trust to execute pursuant to
Section 2.6; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents that the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
8
SECTION 3.3 Delaware Trustee.
----------------
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
1201 Market St.
Wilmington, DE 19801
Attention: Corporate Trust Department
Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any of the powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Trustees
(except as required by the Business Trust Act) described in this Declaration.
The Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust Act.
Notwithstanding anything herein to the contrary, the Delaware Trustee shall not
be liable for the acts or omissions to act of the Trust or of the Regular
Trustees except such acts as the Delaware Trustee is expressly obligated or
authorized to undertake under this Declaration or the Business Trust Act and
except for the negligence or willful misconduct of the Delaware Trustee. The
Delaware Trustee may resign as a Trustee of the Trust by giving not less than 30
days written notice of resignation to any Regular Trustee; provided, however,
that no such 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.
SECTION 3.4 Institutional Trustee.
---------------------
The Sponsor hereby appoints The Chase Manhattan Bank as the trustee
meeting the requirements of an eligible trustee under the Trust Indenture Act of
1939, as amended (the "Institutional Trustee").
Notwithstanding any other provision of this Declaration, the
Institutional Trustee shall not be entitled to exercise any of the powers, nor
shall the Institutional Trustee have any of the duties and responsibilities of
the Trustees (except as required by the Business Trust Act) described in this
Declaration. Notwithstanding anything herein to the contrary, the Institutional
Trustee shall not be liable for the acts or omissions to act of the Trust or of
the Regular Trustees except such acts as the Institutional Trustee is expressly
obligated or authorized to undertake under this Declaration or the Business
Trust Act and except for the negligence or willful misconduct of the
Institutional Trustee. The Institutional Trustee may resign as a Trustee of the
Trust by giving not less than 30 days written notice of resignation to any
Regular Trustee; provided, however that no such resignation of the Institutional
Trustee shall be effective until a successor Institutional Trustee has been
appointed and has accepted such appointment by instrument executed by such
successor Institutional Trustee and delivered to the Trust, the Sponsor and the
resigning Institutional Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
----------------------------------------------------------
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
9
representations as to the validity or sufficiency of this Declaration.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Indemnified
Person;
(b) unless otherwise expressly provided herein:
10
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 4.3 Indemnification.
---------------
(a) (i) The Sponsor shall indemnify, to the full extent permitted by
law, any Parent Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or contemplated action, suit
or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by reason of the
fact that he is or was a Parent Indemnified Person against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith
11
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Parent
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by
law, any Parent Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or contemplated action or
suit by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Parent Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as
to which such Parent Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such Person is
fairly and reasonably entitled to indemnity for such expenses that such
Court of Chancery or such other court shall deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Sponsor
only as authorized in the specific case upon a determination that
indemnification of the Parent Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent legal counsel
in a written opinion, or (3) by the holder(s) of the Common Securities of
the Trust.
12
(iv) Expenses (including attorneys' fees) incurred by a Parent
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a) shall be paid by the Sponsor in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Parent Indemnified Person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor if a
determination is reasonably and promptly made (i) by the Regular Trustees
by a majority vote of a quorum of disinterested Regular Trustees, (ii) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in
a written opinion or (iii) the holder(s) of the Common Securities of the
Trust, that, based upon the facts known to the Regular Trustees,
independent legal counsel or the holder(s) of the Common Securities of the
Trust at the time such determination is made, such Parent Indemnified
Person acted in bad faith or in a manner that such Person did not believe
to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Parent Indemnified Person
believed or had reasonable cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where the Regular Trustees,
independent legal counsel or the holder(s) of the Common Securities of the
Trust reasonably determine that such Person deliberately breached his duty
to the Trust or to the holder(s) of its Common Securities or Preferred
Securities.
(v) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 4.3(a) shall
not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of shareholders or disinterested directors of the Sponsor
or of the holder(s) of the Preferred Securities of the Trust or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification under
this Section 4.3(a) shall be deemed to be provided by a contract between
the Sponsor and each Parent Indemnified Person who serves in such capacity
at any time while this Section 4.3(a) is in effect. Any repeal or
modification of this Section 4.3(a) shall not affect any rights or
obligations then existing.
(vi) The Sponsor or the Trust may purchase and maintain insurance
on behalf of any Person who is
13
or was a Parent Indemnified Person against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status
as such, whether or not the Sponsor would have the power to indemnify him
against such liability under the provisions of this Section 4.3(a).
(vii) For purposes of this Section 4.3(a), references to "the Trust"
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any Person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 4.3(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 4.3(a) shall, unless otherwise provided
when authorized or ratified, continue as to a Person who has ceased to be a
Parent Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a Person.
(b) The Sponsor agrees to indemnify (i) the Delaware Trustee and the
Institutional Trustee, (ii) any Affiliate of the Delaware Trustee or the
Institutional Trustee, and (iii) any officers, directors, stockholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Delaware Trustee or the Institutional Trustee (each of the Persons in (i)
through (iii) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary 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 provisions of this Section 4.3(b) shall survive the termination
of this Declaration or the resignation or removal of the Delaware Trustee or
Institutional Trustee.
14
SECTION 4.4 Outside Businesses.
------------------
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. None of any Covered Person, the Sponsor, the
Delaware Trustee or the Institutional Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such opportunity
is of a character that, if presented to the Trust, could be taken by the Trust,
and any Covered Person, the Sponsor, the Delaware Trustee and the Institutional
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Covered Person, the Delaware Trustee and the
Institutional Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary, trustee or agent for, or may act on any committee or body of holders
of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
----------
At any time before the issue of any Securities, this Declaration may
be amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor; provided, however, that if the amendment effects the
rights, powers, duties, obligations or immunities of the Delaware Trustee or the
Institutional Trustee, the amendment shall also be approved in writing by the
Delaware Trustee or the Institutional Trustee, as the case may be.
SECTION 5.2 Termination of Trust.
--------------------
(a) The Trust shall dissolve and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
15
(iv) before the issue of any Securities, with the consent of
all of the Regular Trustees and the Sponsor; and
(b) As soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file, after satisfaction of
all liabilities of the Trust in accordance with applicable law, a certificate of
cancellation with the Secretary of State of the State of Delaware and the Trust
shall terminate.
SECTION 5.3 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 5.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether or not so expressed.
SECTION 5.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to Persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
16
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
/S/ Cynthia E. Holloway
-----------------------------------
CYNTHIA E. HOLLOWAY
Regular Trustee
/S/ Robert G. Wennemer
-----------------------------------
ROBERT G. WENNEMER
Regular Trustee
/S/ Richard B. Kelson
-----------------------------------
RICHARD B. KELSON
Regular Trustee
CHASE MANHATTAN BANK DELAWARE, as
Delaware Trustee
By: /S/ Denis Kelly
--------------------------------
Denis Kelly
Trust Officer
THE CHASE MANHATTAN BANK, as
Institutional Trustee
By: /S/ Joanne Adamis
--------------------------------
Joanne Adamis
Assistant Vice President
ALUMINUM COMPANY OF AMERICA, as
Sponsor
By: /S/ Cynthia E. Holloway
--------------------------------
Cynthia E. Holloway
Assistant Treasurer
17
EXHIBIT A
(begins on next page)
CERTIFICATE OF TRUST
The undersigned, the trustees of Alcoa Trust I, desiring to form a
business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S) 3810 et
---- -- --
seq., hereby certify as follows:
- ----
(a) The name of the business trust being formed hereby (the "Trust")
is "Alcoa Trust I."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Chase Manhattan Bank Delaware
1201 Market St.
Wilmington, DE 19801
Attention: Trust Department
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated:
-----------------------------------
Regular Trustee
----------------------------------
Regular Trustee
----------------------------------
Regular Trustee
Delaware Trustee
By:
-------------------------------
Trust Officer
Institutional Trustee
By:
-------------------------------