EXHIBIT 4.2
DECLARATION OF TRUST
OF
ARVIN CAPITAL I
DECLARATION OF TRUST, dated as of December 18, 1996 (this "Declaration of
Trust"), by and among Arvin Industries, Inc., an Indiana corporation, as
Sponsor, and Richard A. Smith, A.R. Sales, and Wilmington Trust Company, a
Delaware banking corporation, not in their individual capacities but solely as
trustees of the Trust, as defined below (collectively, the "Trustees"). The
Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Arvin Capital I" (the
"Trust"), 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
sue 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 benefit of 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. (S) 3801 et seq., as it may be amended
from time to time, or any successor legislation (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.
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 included as an exhibit to the 1933 Act Registration Statement (as defined
below), 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 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 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 all pre-effective and post-effective amendments thereto,
relating to the registration of the Preferred Securities of the Trust under the
Securities Act of 1933, as amended, and (b) a Registration Statement on Form 8-A
(the "1934 Act Registration Statement"), including all pre-effective and post-
effective amendments thereto, relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange and execute 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; (iii) to file and execute 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 execute on behalf of the Trust that
certain Underwriting Agreement among
the Trust, the Sponsor and the Underwriters named in such Underwriting
Agreement, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In the event that any filing referred to in clauses (i)-
(iii) above is required by the rules and regulations of the Commission, the New
York Stock Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Trustees, Richard A. Smith and A. R. Sales, in their
capacities as Trustees of the Trust, are 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 Wilmington Trust Company, in its capacity as
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, the New York Stock Exchange or state
securities or blue sky laws. In connection with all of the foregoing, the
Sponsor and each Trustee, other than Wilmington Trust Company, solely in his
capacity as Trustee of the Trust, hereby constitutes and appoints A. R. Sales as
his true and lawful attorney-in-fact, and agent, with full power of substitution
and resubstitution, for the Sponsor or such Trustee or in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to the 1933 Act Registration
Statement and the 1934 Act Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent 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 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 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 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 (30) days prior notice
to the Sponsor.
7. Notwithstanding any other provision of this Declaration of Trust,
Wilmington Trust Company, in its capacity as Trustee of the Trust, shall not be
entitled to exercise any of the powers, nor shall Wilmington Trust Company, in
its capacity as Trustee of the Trust, have any duties and responsibilities of
the other Trustees described in this Declaration of Trust. Wilmington Trust
Company, in its capacity as trustee of the Trust, shall be a Trustee for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
8. No Trustee, nor any affiliate of any Trustee or any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Trustee or any employee or agent of the Trust or its affiliates (each, an
"Indemnified Person" and collectively, the "Indemnified Persons"), shall be
liable, responsible or accountable, in damages or otherwise, to the Trust or any
other 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 of Trust or by
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law, except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions.
9. To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person 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 of Trust, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of gross negligence or willful misconduct with respect to such
acts or omissions.
10. To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Sponsor
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 9.
11. Wilmington Trust Company 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, the Sponsor
and the other Trustees shall have no rights by virtue of this Declaration of
Trust 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. Wilmington
Trust Company shall not 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 Wilmington Trust
Company 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. Wilmington Trust Company may engage or be interested in
any financial or other transactions with the Sponsor or any affiliate of the
Sponsor, or may act on any committee or body of holders of securities or other
obligations of the Sponsor or its affiliates.
12. 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 parities hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
ARVIN INDUSTRIES, INC.
as Sponsor
By: /s/ A.R. Sales
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Name: A. R. Sales
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Title: Treasurer
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WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Trustee
By: /s/ W. Chris Sponenberg
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Name: W. Chris Sponenberg
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Title: Senior Financial Services Officer
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/s/ Richard A. Smith
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Richard A. Smith,
not in his individual capacity
but solely as Trustee
/s/ A.R. Sales
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A.R. Sales,
not in his individual capacity
but solely as Trustee
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