EXHIBIT 4.4
DECLARATION OF TRUST
OF
INVESTORS CAPITA TRUST I
THIS DECLARATION OF TRUST is make as of January 17, 1997 (this
"Declaration"), by and among Ivestors Financial Services Corp., a Delaware
corporation, as sponsor (the "Sponsor"), The Bank of New York (Delaware), a
Delaware banking corporation, as Delaware trustee (the "Delaware Trustee"), and
Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxx and Xxxx X. Xxxxxxxxx, Xx., as administrative
trustees (the "Adminstrative Trustees," and collectively with the Delaware
Trustee, the "Trustees"). The Sponsor, the Delaware Trustee and the
Administrative Trustees hereby agree as follows:
1. The trust created hereby shall be know as "Investors 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
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. (S) 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 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 referred to therein. Prior to the execution
and delivery of such amended and restated Trust Agreement or 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. Notwithstanding
the foregoing, the Trustees may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Sponsor and the Trustees also hereby authorize the Sponsor, as
sponsor of the Trust, in its discretion, (i) to prepare and distribute one or
more offering memoranda in preliminary and final form, including any necessary
or desirable amendments, relating to the offering and sale of Capital 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 other 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 Capital 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 Capital Securities of the Trust under 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 and file an
application, and all other applications, statements, certificates, agreements
and other instruments that shall be necessary or desirable, to have the Capital
Securities listed on the Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market and, if and at such time as determined by
the Sponsor, with the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing or quotation of the Capital
Securities of the Trust;(iv) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Capital Securities of
the Trust; (v) to execute, deliver and perform on behalf of the Trust one or
more purchase agreements, registration rights agreements, dealer manager
agreements, escrow agreements, subscription agreements and other similar or
related agreements providing for or relating to the sale of the Capital
Securities of the Trust; 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.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, PORTAL or state securities or Blue
Sky laws to be executed on behalf of the Trust by the Trustees, the Trustees, in
their capacities 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 Delaware Trustee, in its capacity as a
trustee 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 of Blue Sky laws.
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 and otherwise meets the requirements of applicable law.
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).
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to be
duly executed as of the day and year first above written.
INVESTORS FINANCIAL SERVICES CORP.,
as Sponsor
By:
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Name:
Title:
THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity but solely as
a trustee of the Trust
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, not in his individual
capacity, but solely as a trustee of
the Trust
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, not in her individual
capacity, but solely as a trustee of
the Trust
/s/ Xxxx X. Xxxxxxxxx, Xx.
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Xxxx X. Xxxxxxxxx, Xx., not in his
individual capacity, but solely as a
trustee of the Trust
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