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EXHIBIT 3(b)(1)
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of December 12, 1996, between X.X.
Xxxxxx & Co. Incorporated, a Delaware corporation, as Sponsor, Wilmington Trust
Company, a Delaware banking corporation, as Delaware Trustee, and H. Xxxxxxxxx
Xxxxxxx, Xxxxxx X. Xxxxxx and Xxxxx X. XxXxxxxx, as Regular Trustees
(collectively with the Delaware Trustee, the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "X.X.
Xxxxxx Index Funding Company I", 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 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 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. Sections 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 in the office of the Secretary of State of the State of Delaware in the
form attached hereto. 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 debt
instruments of the Sponsor or a wholly-owned subsidiary thereof, (ii) issuing
and selling common securities representing undivided beneficial interests in the
assets of
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the Trust ("Common Securities" and, together with the Preferred Securities,
"Trust Securities") to the Sponsor in exchange for cash and investing the
proceeds thereof in such debt instruments, (iii) effectuating a merger of any
other entity with and into the Trust, with the Trust being the surviving
business trust, and (iv) engaging in such other activities as are necessary,
convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities by the
Trust, the Sponsor and the Trustees intend to 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 at the time such registration statement becomes effective under the
Securities Act of 1933, as amended (the "Securities Act"), to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and the 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, to (i) prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, an application for an exemption from the provisions of
the Investment Company Act of 1940, (ii) negotiate, prepare, execute and, as
applicable, file all agreements, certificates, documents and applications
necessary to effectuate a merger of any other entity with and into the Trust,
with the Trust being the surviving business trust, and to effectuate any
amendment to the Declaration of Trust of the Trust in effect at such time or to
adopt a new Declaration of Trust at such time, in accordance with Section
3815(f) of the Business Trust Act, (iii) prepare and file with 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 by way of an
amendment of a Registration Statement of any other entity that has merged with
and into the Trust, and including any pre-effective or post-effective amendments
to such Registration Statement, relating to the registration of the Preferred
Securities under the Securities Act and (b) a Registration Statement on Form 8-A
(the "1934 Act Registration
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Statement") (including any pre-effective or post-effective amendments thereto)
relating to the registration of the Preferred Securities under Section 12(b) of
the Securities Exchange Act of 1934, as amended; (iv) prepare and file with the
New York Stock Exchange and execute, in each case 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; (v) prepare
and file and execute, in each case 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 (vi) negotiate the terms of, and execute on behalf
of the Trust, an underwriting agreement among the Trust, the Sponsor and any
underwriter, dealer or agent relating to the Preferred Securities, substantially
in the form included as an exhibit to the 1933 Act Registration Statement at the
time it becomes effective under the Securities Act. It is hereby acknowledged
and agreed that in connection with any execution, filing or document referred to
in clauses (i)-(vi) above, (A) any Regular Trustee (or his attorneys-in-fact and
agents or the Sponsor as permitted herein) is authorized on behalf of the Trust
to file and execute such document on behalf of the Trust and (B) the Delaware
Trustee 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 or the New York Stock Exchange or state securities or blue sky laws,
and in such case only to the extent so required. In connection with all of the
foregoing, the Sponsor and each Regular Trustee, solely in its capacity as
Trustee of the Trust, hereby constitutes and appoints Xxxx X. Xxxxxxx and Xxxxx
X.X. Xxxxx, 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)
the 1933 Act Registration Statement and the 1934 Act Registration Statement and
any and all amendments (including post-effective amendments) thereto, with all
exhibits thereto, and other documents in connection therewith, and (ii) a
registration statement and any and all amendments thereto filed pursuant to Rule
462(b) under the Securities Act with the Commission, granting unto said
attorneys-in-fact and
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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, 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 four (4) 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 four (4); and provided, further, however, 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 that has its principal place of business in the State of Delaware and
meets any 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; provided, however, that the Delaware Trustee may resign immediately
upon notice to the Sponsor if the Delaware Trustee is required to join in any
filing or execute on behalf of the Trust any document pursuant to the provisions
of paragraph 4 hereof and, upon giving such notice, the Delaware Trustee shall
not be required to join in any such filing or execute on behalf of the Trust any
such document; provided, further, however, that no resignation of the Delaware
Trustee shall be effective until a successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such successor
Delaware Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee.
7. To the fullest extent permitted by applicable law, the Sponsor
agrees to indemnify (i) the Delaware Trustee, (ii) any affiliate of the Delaware
Trustee, and (iii) any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Delaware
Trustee (each of the persons or entities in (i) through (iii) being referred to
as an "Indemnified Person") for, and to hold each Indemnified Person harmless
against, any
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loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this paragraph 7 shall survive the termination of this
Declaration.
8. The Trust may terminate without issuing any Trust Securities at
the election of the Sponsor.
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.
X.X. XXXXXX & CO. INCORPORATED,
as Sponsor
By: /s/ Xxxxx XX Xxxxx
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Name: Xxxxx XX Xxxxx
Title: Vice President, Assistant
General Counsel and
Assistant Secretary
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
/s/ H. Xxxxxxxxx Xxxxxxx
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H. Xxxxxxxxx Xxxxxxx, as
Trustee
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, as Trustee
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/s/ Xxxxx X. XxXxxxxx
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Xxxxx X. XxXxxxxx, as Trustee
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