Exhibit 4.4.2
DECLARATION OF TRUST, dated as of March 17, 1999 between Pogo Producing
Company, a Delaware corporation, as Sponsor (the "Sponsor"), and Wilmington
Trust Company, not in its individual capacity but solely as trustee (the
"Property Trustee"), Wilmington Trust Company, not in its individual capacity
but solely as trustee (the "Delaware Trustee"), and Xxxxxx X. Xxxxxx, not in his
individual capacity but solely as trustee (the Property Trustee, Delaware
Trustee and such individual as trustee, collectively the "Trustees"). The
Sponsor and the Trustees hereby agree as follows:
1. The Delaware business trust created hereby shall be known as "Pogo
Trust II" (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 Trust hereby acknowledges receipt of such amount from
the Sponsor, which amount shall constitute the initial trust estate. 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. CODE
Section 3801 ET SEQ. (the "Business Trust Act"), and that this document
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Secretary of State of the State of Delaware in the form attached hereto in
accordance with the provisions of the Business Trust Act. The Trust is hereby
established by the Sponsor and the Trustees for the purposes of (i) issuing
preferred securities representing undivided beneficial interests in the assets
of the Trust ("Preferred Securities") in exchange for cash and investing the
proceeds thereof in junior subordinated debentures of the Sponsor, (ii) issuing
and selling common securities representing an undivided beneficial interest in
the assets of the Trust ("Common Securities") 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. 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 referred to
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, as the sponsor of the Trust, is hereby authorized (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 under the Securities Act of 1933, as
amended, of the Preferred Securities and certain other securities of the Sponsor
and (b) if the Sponsor shall deem it desirable, 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 under Section 12 of the Securities Exchange Act of 1934, as amended;
(ii) if the Sponsor shall deem it desirable, to prepare and file with the New
York Stock Exchange or one or more national securities exchange(s) (each, an
"Exchange") or the National Association of Securities Dealers, Inc. (the "NASD")
and execute on behalf of the Trust a listing application or applications 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 such Exchange or the NASD's Nasdaq National Market ("Nasdaq");
(iii) to prepare and 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 the Sponsor, on behalf of
the Trust, may deem 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, (iv) to negotiate the
terms of and execute on behalf of the Trust an underwriting agreement among the
Trust, the Sponsor and any underwriter(s), dealer(s) or agent(s) relating to the
Preferred Securities, as the Sponsor, on behalf of the Trust, may deem necessary
or desirable and (v) to execute and deliver on behalf of the Trust letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities. In the event that any filing referred to in clauses
(i)-(iii) above is required by the rules and regulations of the Commission, any
Exchange, Nasdaq, the NASD or state securities or blue sky laws, to be executed
on behalf of the Trust by the Trustees, any Trustee appointed pursuant to
Section 6 hereof, in their capacities as Trustees of the Trust, and the Sponsor
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
Property Trustee, the Delaware Trustee and Xxxxxx X. Xxxxxx, 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, any Exchange, Nasdaq, the NASD or state
securities or blue sky laws. In connection with all of the foregoing, the
Sponsor and each Trustee, solely in its capacity as Trustee of the Trust, hereby
constitutes and appoints Xxxx X. Xxx Xxxxxxx, Xxxxxx X. Xxxx and Xxxxxx 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 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) a registration
statement, and any and all amendments thereto, relating thereto filed pursuant
to Rule 462(b) under the Securities Act of 1933, as amended, 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, may lawfully do or cause to be done by
virtue hereof.
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5. (a) Except as otherwise expressly required in Section 4 of this Trust
Agreement, the Trustees shall not have any duty or liability with respect to the
administration of the Trust, the investment of the Trust's property or the
payment of dividends or other distributions of income or principal to the
Trust's beneficiaries, and no implied obligations shall be inferred from this
Trust Agreement on the part of the Trustees. the Trustees shall not be liable
for the acts or omissions of the Sponsor or any other person who acts on behalf
of the Trust or shall the Trustees be liable for any act or omission by them in
good faith in accordance with the directions of the Sponsor.
(b) The Trustees accept the trusts hereby created and agrees to
perform their duties hereunder with respect to the same but only upon the terms
of this Trust Agreement. The Trustees shall not be personally liable under any
circumstances, except for their own willful misconduct or gross negligence. In
particular, but not by way of limitation:
(i) The Trustees shall not be personally liable for any error of
judgment made in good faith by an officer or employee of the Trustees;
(ii) No provision of this Trust Agreement shall require the
Trustees to expend or risk their personal funds or otherwise incur any financial
liability in the performance of its rights or duties hereunder, if the Trustees
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured or
provided to them;
(iii) Under no circumstance shall the Trustees be personally
liable for any representation, warranty, covenant or indebtedness of the Trust;
(iv) The Trustees shall not be personally responsible for or in
respect of the genuineness, form or value of the Trust property, the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the
Sponsor;
(v) In the event that they are unsure as to the course of action
to be taken by them hereunder, the Trustees may request instructions from the
Sponsor and to the extent the Trustees follow such instructions in good faith
they shall not be liable to any person. In the event that no instructions are
provided within the time requested by the Trustees, they shall have no duty or
liability for their failure to take any action or for any action they take in
good faith;
(vi) All funds deposited with the Trustees hereunder may be held
in a non-interest bearing trust account and the Trustees shall not be liable for
any interest thereon or for any loss as a result of the investment thereof at
the direction of the Sponsor;
(vii) To the extent that, at law or in equity, the Trustees
have duties and liabilities relating thereto to the Sponsor or the Trust, the
Sponsor agrees that such duties and liabilities are replaced by the terms of
this Trust Agreement.
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(c) The Trustees shall incur no liability to anyone in acting upon
any document believed by them to be genuine and believed by them to be signed by
the proper party or parties. The Trustees may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter
the manner of ascertainment is not specifically prescribed herein, the Trustees
may for all purposes hereof rely on a certificate, signed by the Sponsor, as to
such fact or matter, and such certificate shall constitute full protection to
the Trustees for any action taken or omitted to be taken by them in good faith
in reliance thereon.
(d) In the exercise or administration of the trusts hereunder, the
Trustees (i) may act directly or, at the expense of the Sponsor, through agents
or attorneys, and the Trustees shall not be liable for the default or misconduct
of such attorneys or agents if such agents and attorneys shall have been
selected by the Trustees in good faith, and (ii) may, at the expense of the
Sponsor, consult with counsel, accountants and other experts, and they shall not
be liable for anything done, suffered or omitted in good faith by them in
accordance with the advice or opinion of any such counsel, accountants or other
experts.
(e) Notwithstanding anything contained herein to the contrary, the
Delaware Trustee shall not be required to take any action in any jurisdiction
other than the State of Delaware if the taking of such action will (i) require
the consent or approval or authorization or order of or the giving of notice to,
or the registration with or the taking of any other action in respect of, any
state or other governmental authority or agency of any jurisdiction other than
the State of Delaware, (ii) result in any fee, tax or other governmental charge
under the laws of any jurisdiction or any political subdivision thereof in
existence becoming payable by the Delaware Trustee, or (iii) subject the
Delaware Trustee to personal jurisdiction in any jurisdiction other than the
State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by the Delaware Trustee, as the case may be,
contemplated hereby.
(f) In accepting and performing the trust hereby created, the
Trustees act solely as trustees hereunder and not in their individual capacity,
and all persons having any claim against the Trustees by reason of the
transactions contemplated by this Trust Agreement shall look only to the Trust's
property for payment or satisfaction thereof.
6. The Sponsor hereby agrees to (i) compensate the Trustees for their
services hereunder in an amount separately agreed to by the Sponsor and the
Trustees, (ii) reimburse the Trustees for all reasonable expenses (including
reasonable fees and expenses of counsel and other experts) and (iii) 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 reasonable fees and expenses of their
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 Person with respect to the
performance of this Trust Agreement, the
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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. The
obligations of the Sponsor under this Section 6 shall survive the termination of
this Trust Agreement.
7. This Declaration of Trust may be executed in one or more counterparts.
8. 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 and meets 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.
9. Wilmington Trust Company, in its capacity as Delaware Trustee, shall
not have any of the powers or duties of the Trustees set forth herein and shall
be a Trustee of the Trust for the sole purpose of satisfying the requirements of
Section 3807(a) of the Business Trust Act.
10. The Trust may be dissolved and terminated before the issuance of any
Preferred Securities at the election of the Sponsor.
11. 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.
POGO PRODUCING COMPANY,
as Sponsor
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President--Law and
Corporate Secretary
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Property Trustee
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Administrative Account Manager
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Delaware Trustee
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Administrative Account Manager
XXXXXX X. XXXXXX,
not in his individual capacity but solely as
Trustee
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
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CERTIFICATE OF TRUST
OF
POGO TRUST II
THIS CERTIFICATE OF TRUST of Pogo Trust II (the "TRUST"), dated as of
March 17, 1999, is being duly executed and filed by the undersigned, as
trustees, with the Secretary of State of the State of Delaware to form a
business trust under the Delaware Business Trust Act (12 DEL. CODE Section 3801
ET SEQ.).
4. NAME. The name of the business trust being formed hereby is Pogo
Trust II.
5. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are Wilmington
Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
6. EFFECTIVE DATE. This Certificate of Trust shall be effective at the
time of its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the Trust
at the time of filing this Certificate of Trust, have executed this Certificate
of Trust as of the date first above written.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Administrative Account Manager
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Administrative Account Manager
Xxxxxx X. Xxxxxx,
as Regular Trustee
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
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