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EXHIBIT 4.4
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DECLARATION OF TRUST
THIS DECLARATION OF TRUST, dated as of March 21, 2000, between SKY
FINANCIAL GROUP, INC., an Ohio corporation (the "Sponsor"), and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, X. Xxxxxxx Xxxxxx, Jr., Xxxxx X.
Xxxxxxxx and Xxxxxxx X. Xxxxx, each an individual, as trustees (together with
such other trustees as the Sponsor may, from time to time, appoint hereunder,
the "Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Sky Financial Capital
Trust 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. Code 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 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 purpose of (i) issuing capital securities ("Capital
Securities") representing undivided beneficial interests in the assets of the
Trust in exchange for cash and investing the proceeds thereof in Junior
Subordinated Deferrable Interest Debentures of the Sponsor (the "Debentures");
(ii) issuing and selling common securities ("Common Securities" and, together
with the Capital Securities, "Trust Securities") representing undivided
beneficial interests in the assets of the Trust to the Sponsor in exchange for
cash and investing the proceeds thereof in additional Debentures and (iii)
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, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Capital 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.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to assist in the preparation of an
offering memorandum (the "Offering Memorandum") in preliminary and final form
prepared by the Sponsor, in relation to the offering and sale of the Capital
Securities; (ii) to execute on behalf of the Trust and file with the National
Association of Securities Dealers Automated Quotation System (the "Nasdaq
National Market"), the New York Stock Exchange or other such national securities
exchange a listing application and all other applications, statements,
certificates, agreements, and other instruments as shall be
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necessary or desirable to cause the Capital Securities to be listed on the
Nasdaq National Market, the New York Stock Exchange or other such national
securities exchange; (iii) to prepare, execute and file, 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 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 (iv) to negotiate the terms of,
and execute on behalf of the Trust, a purchase agreement among the Trust, the
Sponsor and any underwriter, dealer or agent relating to the offer and sale of
the Capital Securities, satisfactory to each such party.
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 one (1); 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 which 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 (30) days' prior notice
to Sponsor.
7. The recitals contained in this Declaration of Trust shall be taken
as statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration of Trust.
8. (a) The Trustees (the "Fiduciary Indemnified Persons") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Sponsor, the Trustees or any holder of the Trust Securities (the Trust, the
Sponsor and any holder of the Trust Securities being a "Covered Person") for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by the Fiduciary Indemnified Persons in good faith on behalf of the
Trust and in a manner the Fiduciary Indemnified Persons reasonably believed to
be within the scope of authority conferred on the Fiduciary Indemnified Persons
by this Declaration or by law, except that the Fiduciary Indemnified Persons
shall be liable for any such loss, damage or claim incurred by reason of the
Fiduciary Indemnified Person's negligence or bad faith with respect to such acts
or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected
in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust be any
person as to matters the Fiduciary Indemnified Persons reasonably believes are
within such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses,
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or any other facts pertinent to the existence and amount of assets from which
distributions to holders of Trust Securities might properly be paid.
9. The Sponsor agrees, to the fullest extent permitted by applicable
law,
(a) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust in manner the Fiduciary Indemnified Persons reasonably
believed to be within the scope of authority conferred on the Fiduciary
Indemnified Persons by this Declaration of Trust, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of
negligence or willful misconduct with respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of such
claim, demand, action, suit or proceeding, upon receipt by the Trust of an
undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such
amount if it shall be determined that such Fiduciary Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
10. The provisions of Section 9 shall survive the termination of this
Declaration of Trust or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
11. The Trust may terminate without issuing any Trust Securities at the
election of the Sponsor.
12. This Declaration of Trust and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to the principles of conflict of laws.
[SIGNATURE PAGE FOLLOWS]
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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.
SKY FINANCIAL GROUP, INC.,
as Sponsor
By:
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Name:
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Title:
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WILMINGTON TRUST COMPANY, as Trustee
By:
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Name:
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Title:
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X. Xxxxxxx Xxxxxx, Jr., as Trustee
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Xxxxx X. Xxxxxxxx, as Trustee
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Xxxxxxx X. Xxxxx, as Trustee
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