1
EXHIBIT 4.2
DECLARATION OF TRUST
OF
XXXXXXXX CAPITAL TRUST I
THIS DECLARATION OF TRUST, dated as of December 2, 1998 (this
"Declaration"), is by and among Xxxxxxxx Bancorp Inc., a Florida corporation,
as sponsor (the "Sponsor"), Wilmington Trust Company, a Delaware banking
corporation, as trustee, and Xxxx X.X. Xxxxxx, Xxxxxxx Xxxxxxxx and Xxxx
Xxxxxxxxx each as trustees (collectively, the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Xxxxxxxx Capital Trust
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
Trust the sum of $10. Such 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.
X.xx. 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 such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration, satisfactory to each such party and having substantially
the same terms described in the Registration Statement (as defined below), to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Capital Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Declaration,
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 the sponsor of the Trust, is hereby authorized (i)
to prepare and distribute one or more registration statements, including a
prospectus and prospectus supplements and any amendment thereto, in preliminary
and final form (each a "Registration Statement"), relating to the offering and
sale of the Capital Securities under the Securities Act of 1933, as amended
(the "Securities Act") and such forms or filings as may be required by the
Securities 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 and the Common Securities of the Trust and certain other securities;
(ii) to execute and file 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 Capital Securities under, or
obtain for the Capital Securities and Common Securities and certain other
securities an exemption from, the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iii) to execute, deliver and perform on behalf of the
2
Trust such underwriting or purchase agreements with one or more underwriters,
purchasers or agents relating to the offering of the Capital Securities as the
Sponsor, on behalf of the Trust, may deem necessary or desirable; (iv) to
execute and file on behalf of the Trust with the Private Offering, Resales and
Trading through Automatic Linkages (PORTAL) Market ("PORTAL") or a national
securities exchange or an automated securities quotation system, a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Trust's Capital Securities to be listed on PORTAL or
such exchange or automated securities quotation system; (v) to execute and
deliver letters or documents to, or instruments for filing with, a depository
relating to the Capital Securities and Common Securities of the Trust and
certain other 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. If any filing referred to in clauses (i), (ii), (iv) or
(v) above is required by law or by the rules and regulations of any applicable
governmental agency, self-regulatory organization or other person or
organization to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacities as trustees of the Trust, are hereby authorized
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 capacities 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 law or by
the rules and regulations of any applicable governmental agency,
self-regulatory organization or other person or organization.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four, and
thereafter the number of trustees of the Trust 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 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. 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 30 days' prior written notice to the
Sponsor.
7. This Declaration shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
-2-
3
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
XXXXXXXX BANCORP INC.
as Sponsor
By: /s/ Xxxx Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxx Xxxxxxx
Title: Executive Vice President
WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as trustee of the Trust
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxx X.X. Xxxxxx
----------------------------------------
Xxxx X.X. Xxxxxx
not in his individual capacity
but solely as trustee of the Trust
/s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxx
not in her individual capacity
but solely as trustee of the Trust
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx
not in her individual capacity
but solely as trustee of the Trust
-3-
