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EXHIBIT 4.5
DECLARATION OF TRUST, dated as of October 7, 1996, between
Xxxxx Xxxxxx Group Inc., a Delaware corporation (the "Sponsor"), and The Chase
Manhattan Bank, a New York banking corporation, not in its individual capacity
but solely as trustee (the "Property Trustee"), Chase Manhattan Bank Delaware, a
Delaware banking corporation, not in its individual capacity but solely as
trustee (the "Delaware Trustee"), and Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx and
Xxxxxxx X. Xxxxx, each not in her or his individual capacity but solely as
trustee (the Property Trustee, the Delaware Trustee and each such individual as
trustee, collectively, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "PWG Capital
Trust II", 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 purposes of (i) issuing preferred securities ("Preferred
Securities") representing undivided beneficial interests in the assets of the
Trust in exchange for cash and investing the proceeds thereof in junior
subordinated debentures of the Sponsor, (ii) issuing and selling common
securities ("Common Securities" and, together with the Preferred 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 junior subordinated debentures of the Sponsor and (iii) engaging
in such other activities as are necessary, convenient or incidental thereto.
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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, (i) to prepare and file with the
Securities and Exchange Commission (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 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 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; (ii) to 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; (iii) to 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 (iv) to 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,
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substantially in the form included as an exhibit to the 1933 Act Registration
Statement at the time it becomes effective under the Securities Act. In the
event that any filing referred to in any of clauses (i)-(iii) above is required
by the rules and regulations of the Commission or the New York Stock Exchange or
state securities or blue sky laws, to be executed on behalf of the Trust by the
Trustees, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx, 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 Chase Manhattan Bank and Chase Manhattan
Bank Delaware, in their capacities 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 or the
New York Stock Exchange or state securities or blue sky laws. In connection with
all of the foregoing, the Sponsor and each Trustee, solely in its capacity as
Trustee of the Trust, hereby constitutes and appoints Xxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxx, Xxxxxx X. Xxxxx and Xxxxxxx 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) any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement 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 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 five (5) 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
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decrease the number of Trustees; provided, however, that the number of Trustees
shall in no event be less than five (5); 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 30 days prior notice to the
Sponsor.
7. 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.
XXXXX XXXXXX GROUP INC., as
Sponsor,
by
/s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
THE CHASE MANHATTAN BANK, not
in its individual capacity but
solely as Property Trustee,
by
/s/ X. X'Xxxxx
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Name: X. X'Xxxxx
Title: Senior Trust Officer
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CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity
but solely as Delaware
Trustee,
by
/s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
/s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx,
not in her individual
capacity but solely as
Trustee
/s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx,
not in his individual
capacity but solely as
Trustee
/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx,
not in his individual
capacity but solely as
Trustee
