Exhibit 4.9
DECLARATION OF TRUST
OF
XXXXXXXXXX CAPITAL TRUST III
THIS DECLARATION OF TRUST is made as of April 30, 2002 (this "Declaration
of Trust"), by and among Xxxxxxxxxx Corporation, a Vermont corporation, as
sponsor (the "Sponsor"), The Bank of New York (Delaware), a Delaware banking
corporation, as trustee (the "Delaware Trustee"), The Bank of New York, a New
York banking corporation, as trustee (the "Property Trustee"), and F. Xxxxxxx
Xxxxxxxx, as trustee (the "Administrative Trustee" and, together with the
Delaware Trustee and the Property Trustee, the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Xxxxxxxxxx Capital Trust
III" (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 xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust 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. ss. 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 with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. An amended and restated Declaration of Trust satisfactory to each party
to it, in such form as the parties thereto may approve, will be entered into to
provide for the contemplated operation of the Trust created hereby and the
issuance by the Trust of the capital securities of the Trust (the "Capital
Securities") and the common securities of the Trust 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. Notwithstanding the
foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and distribute one or more direct placement
memoranda, or offering memoranda or circulars in preliminary and/or final form,
including any necessary or desirable amendments, relating to the offering and
sale of Capital Securities in a transaction exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933 Act"), and
such other forms or filings as may be required by the 1933 Act, the Securities
Exchange Act of 1934, as amended, or
the Trust Indenture Act of 1939, as amended, in each case relating to the
Capital Securities; (ii) 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 that shall be
necessary or desirable to register or establish the exemption from registration
of the Capital 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 to qualify the Trust to do business as a foreign entity in any
jurisdiction outside of the State of Delaware; (iii) to execute and file an
application, and all other applications, statements, certificates, agreements
and other instruments that shall be necessary or desirable, to have the Capital
Securities listed on the Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market and, if and at such time as determined by
the Sponsor, with the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing or quotation of the Capital
Securities; (iv) to execute and deliver letters or documents to, or instruments
for filing with, a depository relating to the Capital Securities; (v) to
execute, deliver and perform on behalf of the Trust one or more purchase
agreements, placement agreements, registration rights agreements, dealer manager
agreements, escrow agreements, subscription agreements and other similar or
related agreements providing for or relating to the sale of the Capital
Securities; and (vi) to execute on behalf of the Trust any and all documents,
papers and instruments as may be desirable in connection with any of the
foregoing.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Securities and Exchange Commission (the
"Commission"), PORTAL, or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity 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 the Trustees, in their capacity as trustees 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,
PORTAL, or state securities or "Blue Sky" laws.
5. This Declaration of Trust may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be three (3) and
thereafter the number of trustees of the Trust shall be five (5) pursuant to the
amended and restated Declaration of Trust or 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 of the Trust; provided, however, that to the
extent required by the Business Trust Act, one trustee of the Trust 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 and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty (30) days' prior notice to the Sponsor.
7. The Delaware Trustee, in its capacity as a trustee of the Trust, shall
not have any of the powers or duties of the Trustees set forth herein (except as
may be required under the
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Business Trust Act) and shall be a trustee of the Trust for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Business Trust
Act.
8. The Sponsor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against any and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Declaration of Trust, the creation, operation
or termination of the Trust or the transactions contemplated hereby; provided,
however, that the Sponsor shall not be required to indemnify any Indemnified
Person for any Expenses which are a result of the willful misconduct, bad faith
or gross negligence of such Indemnified Person.
9. The Trust may be dissolved and terminated before the issuance of the
Capital Securities at the election of the Sponsor.
10. 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.
XXXXXXXXXX CORPORATION,
as Sponsor
By:/s/ F. Xxxxxxx Xxxxxxxx
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Name: F. Xxxxxxx Xxxxxxxx
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Title: Senior Vice President & General Counsel
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THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:/s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Senior Vice President
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THE BANK OF NEW YORK,
as Property Trustee
By:/s/ Xxxxx X. Xxxxxx
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Name: /s/ Xxxxx X. Xxxxxx
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Title: Assistant Treasurer
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/s/ F. Xxxxxxx Xxxxxxxx
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F. XXXXXXX XXXXXXXX,
as Administrative Trustee
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