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EXHIBIT 4.11
DECLARATION OF TRUST
OF
WALBRO CAPITAL TRUST
THIS DECLARATION OF TRUST is made as of December 17, 1996 (this
"Declaration"), by and among Walbro Corporation, a Delaware corporation, as
sponsor (the "Sponsor"), Bankers Trust (Delaware), a Delaware banking
corporation, as trustee, and Xxxxxxx X. Xxxxx, as trustee (jointly, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Walbro Capital Trust" (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. 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. C. Section 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
Trust Agreement or Declaration satisfactory to each such party 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 Trust Agreement or
Declaration, the Trustees shall not have any duty or obligation hereunder or
with respect of 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 Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary prospectus or prospectus supplement thereto relating to the
Preferred Securities required to be filed under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (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 the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange or other exchange, and execute on behalf of
the Trust a listing application and all other applications, statements,
certificates,
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agreements and other instruments as shall be necessary or desirable to cause
the Preferred Securities to be listed on the New York Stock Exchange or such
other 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 Depositor, on behalf
of the Trust, may deem necessary or desirable; and (iv) to execute, deliver
and perform on behalf of the Trust an underwriting agreement with the Depositor
and the underwriter or underwriters of the Preferred Securities of the Trust.
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
other exchange, 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, the New York Stock Exchange or other exchange, or state securities
or Blue Sky laws. In connection with all of the foregoing, Bankers Trust
(Delaware), solely in its capacity as trustee of the Trust, and the Depositor
hereby constitute and appoint Xxxxxxx X. Xxxxx as its true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registrations Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any 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 Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be two
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 thirty days' prior notice to the
Sponsor.
7. This Declaration shall be governed by, and construed in
accordance with the laws of the State of Delaware (with regard to conflict of
laws principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
WALBRO CORPORATION,
as Sponsor
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
BANKERS TRUST (DELAWARE),
not in its individual capacity but
solely as trustee of the Trust
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: President
XXXXXXX X. XXXXX, not in his individual
capacity, but solely as trustee of the
Trust
/s/ Xxxxxxx X. Xxxxx
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