Exhibit 4.2
DECLARATION OF TRUST
OF COMMERCE CAPITAL TRUST II
This Declaration of Trust is made as of March 4, 2002 (the "Declaration
of Trust"), by and among Commerce Bancorp, Inc., a New Jersey corporation, as
depositor (the "Depositor"), The Bank of New York (Delaware), a Delaware
corporation, as Delaware trustee (the "Delaware Trustee"), The Bank of New York,
a New York corporation, as property trustee (the "Property Trustee") and Xxxxxx
X. Xxxx, XX, C. Xxxxxx Xxxxxx, Xx. and Xxxxxxx X. Xxxxx, each an individual, as
administrative trustees (the "Administrative Trustees;" and, together with the
Delaware Trustee and the Property Trustee, the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Commerce Capital Trust
II" (the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor 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 Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. 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 substantially the form attached
hereto as Exhibit A.
3. The Depositor and the Trustees will enter into an amended and
restated Declaration of Trust satisfactory to each such party and in such form
as the Trustees and the Depositor may approve, to provide for the contemplated
operation of the Trust created hereby and the issuance of the convertible trust
preferred securities and common securities of the Trust. Prior to the execution
and delivery of such amended and restated Declaration of Trust, the Trustees
shall not have any duties or obligations hereunder or with respect to the trust
estate, except for the filing of the Certificate of Trust with the Delaware
Secretary of State and except as otherwise required by applicable law or as may
be necessary to obtain prior to such execution and delivery of any licenses,
consents or approvals, required by applicable law or otherwise.
4. The Depositor, as the Depositor of the Trust, is hereby authorized,
in its discretion, (i) to prepare one or more offering memoranda or circular in
preliminary and final form relating to the offering and sale of convertible
trust preferred securities of the Trust in a transaction exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and such forms or filings as may be required by the 1933 Act, the
Securities Exchange Act of 1934, as amended, or the Trust Indenture Act of 1939,
as amended, in each case relating to the convertible trust preferred securities
of the Trust; (ii) 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 that shall be
necessary or desirable to register or establish the exemption from registration
of the convertible trust preferred securities of the Trust under the securities
or "Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the
Trust, may deem necessary or desirable; (iii) to execute and file an
application, and all other applications, statements, certificates, agreements
and other instruments that shall be necessary or desirable, to the Private
Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market;
(iv) to execute and deliver letters or documents to, or instruments for filing
with, a depository relating to the convertible trust preferred securities of the
Trust; and (v) to execute, deliver and perform on behalf of the Trust one or
more purchase agreements, registration rights agreements and other related
agreements providing for or relating to the sale of the convertible trust
preferred securities of the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Securities and Exchange Commission (the
"Commission"), PORTAL or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustees, the Administrative Trustees, in their
capacity 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 Administrative 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, PORTAL or state securities or "Blue Sky" laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees of the Trust initially shall be five 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 Depositor 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 Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. The
Property Trustee and the Delaware Trustee may resign upon thirty days prior
notice to the Depositor.
7. The Delaware Trustee, in its capacity as trustee of the Trust, shall
not have any of the powers or duties of the Trustees set forth herein (except as
may be required under the Business Trust Act) and shall be a trustee of the
Trust for the sole and limited purpose of fulfilling the requirements of Section
3807 of the Business Trust Act.
8. The Depositor hereby agrees, to the fullest extent permitted by
applicable law, to (i) reimburse the Trustees for all reasonable expenses
(including reasonable fees and expenses of counsel and other experts) and (ii)
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 the reasonable fees and expenses of
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 Persons with respect to the
performance of this Declaration of Trust, the creation, operation or termination
of the Trust or the transactions contemplated hereby; provided, however, that
the Depositor 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.
2
9. 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).
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.
COMMERCE BANCORP, INC., as Depositor
By: /s/Xxxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and Chief
Financial Officer
THE BANK OF NEW YORK (Delaware), as Delaware Trustee
By: /s/ Xxxxxxx Xxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: SVP
THE BANK OF NEW YORK, as Property Trustee
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
/s/ Xxxxxx X. Xxxx, XX
----------------------------------------------------
Xxxxxx X. Xxxx, XX, as Administrative Trustee
/s/ C. Xxxxxx Xxxxxx, Xx.
----------------------------------------------------
C. Xxxxxx Xxxxxx, Xx., as Administrative Trustee
/s/ Xxxxxxx X. Xxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxx, as Administrative Trustee
3
