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EXHIBIT 4.4
DECLARATION OF TRUST
OF
EXECUTIVE RISK CAPITAL TRUST
THIS DECLARATION OF TRUST is made as of January 24, 1997 (this
"Declaration"), by and between Executive Risk Inc., a Delaware corporation, as
sponsor (the "Sponsor"), and Chase Manhattan Bank Delaware, a Delaware banking
corporation, as trustee (the "Trustee"). The Sponsor and
the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "Executive Risk
Capital Trust" (the "Trust"), in which name the Trustee 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 ten dollars ($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 Trustee
is hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Sponsor and the Trustee 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 Capital Securities (the "Capital Securities") and the Common
Securities (the "Common Securities") referred to in the Offering Memorandum (as
hereinafter defined). Prior to the execution and delivery of such amended and
restated Trust Agreement or Declaration, the Trustee 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 Trustee may take
all actions deemed proper as are necessary to effect the transactions
contemplated herein.
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4. The Sponsor, as sponsor of the Trust, is hereby authorized, 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 (the "Offering Memorandum"); (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 cause the Capital
Securities to be listed on the Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market, with PORTAL, 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 underwriting or 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 Securities and Exchange Commission
(the "Commission"), PORTAL or state securities or Blue Sky laws to be executed
on behalf of the Trust by a Trustee, the Trustee or any trustee of the Trust
appointed pursuant to Section 6 hereof, in its capacity as trustee of the Trust,
is 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 any
such trustee of the Trust, in its capacity as trustee of the Trust, shall not be
required to join in any such filing or execute on behalf of the Trust
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any such document unless required by the rules and regulations of the
Commission, PORTAL or state securities or 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 one 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 (but not below one) 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 that otherwise meets the
requirements of applicable Delaware 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 (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.
EXECUTIVE RISK INC.
as Sponsor
By:/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice Chairman
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity
but solely as trustee of the
Trust
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
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