Exhibit 4.4
DECLARATION OF TRUST
This DECLARATION OF TRUST, dated as of October 29, 2001 (this
"Declaration of Trust") between The St. Xxxx Companies, Inc., a Minnesota
corporation (the "Sponsor"), and The Chase Manhattan Bank USA, National
Association, a national bank with its principle office in the State of Delaware,
as Delaware trustee (the "Delaware Trustee"), and Xxxxxx X. Xxxxxxx, as trustee
(the "Administrative Trustee", and, together with the Delaware Trustee, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "St.
Xxxx Capital Trust I" in which name the Trustees, or the Sponsor to the extent
provided herein, may engage in the transactions contemplated hereby, 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 $100. The Administrative Trustee hereby acknowledges
receipt of such amount in trust from the Sponsor, which amount shall constitute
the initial trust estate. The Administrative Trustee hereby declares that it
will hold the trust estate in trust for the Sponsor. It is the intention of the
parties hereto that the Trust created hereby constitutes 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 constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Secretary of State of the State
of Delaware in accordance with the provisions of the Business Trust Act.
3. The Sponsor and the Trustees will 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 (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities referred to therein. Prior
to the execution and delivery of such Amended and Restated Declaration of Trust,
(i) the Delaware Trustee shall not
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have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law, and (ii) the Administrative
Trustee and the Sponsor shall take any action 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 hereby agrees to (i) reimburse the Delaware Trustee
for all reasonable expenses (including reasonable fees and expenses of counsel
and other experts), (ii) indemnify, defend and hold harmless the Delaware
Trustee and any of the officers, directors, employees and agent of the Delaware
Trustee (collectively, including the Delaware Trustee in its individual
capacity, 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,
the creation, operation, administration or termination of the Trust, or the
transactions contemplated hereby; provided, however, that the Sponsor shall not
be required to indemnify any Indemnified Person for Expenses to the extent such
Expenses result from the willful misconduct, bad faith or negligence of such
Indemnified Person, and (iii) advance to such Indemnified Person Expenses
(including reasonable legal fees) incurred by such Indemnified Person in
defending any claim, demand, action, suit or proceeding prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Sponsor of an undertaking by or on behalf of the Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified therefor under this Section 4.
5. The Sponsor, as the sponsor of the Trust, is hereby authorized,
in its discretion (i) to 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
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Registration Statement"), including any pre-effective or post-effective
amendments thereto (including the prospectus, prospectus supplements and the
exhibits contained therein), and any registration statement filed pursuant to
Rule 462 under the Securities Act of 1933, as amended (the "1933 Act"), relating
to the registration under the 1933 Act of the Preferred Securities of the Trust
and certain other securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement"), including any pre-effective and
post-effective amendments thereto, relating to the registration of the Preferred
Securities of the Trust under Section 12(b) or 12(g) of the Securities Exchange
Act of 1934, as amended; (ii) to file with the New York Stock Exchange or any
other national stock exchange or The Nasdaq National Market (each, an
"Exchange") and execute on behalf of the Trust one or more listing applications
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 any of the Exchanges; (iii) 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
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 execute, deliver and
perform on behalf of the Trust that certain Underwriting Agreement relating to
the Preferred Securities, among the Trust, the Sponsor and the several
Underwriters named therein, substantially in the form included as an exhibit to
the 1933 Act Registration Statement. In the event that any filing referred to in
clauses (i), (ii) and (iii) above is required by the rules and regulations of
the Commission, an Exchange or state securities or blue sky laws, to be executed
on behalf of the Trust by any of the Trustees, each of the Trustees, in its
capacity as a 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. In connection with the filings referred to above, the Sponsor hereby
constitutes and appoints Xxxxx X. Xxxxxxxx and Xxxxxx Xxxxxxxx and each of them,
as its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution,
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for the Sponsor or in the Sponsor's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement (and any registration statement filed
pursuant to Rule 462 promulgated pursuant to the 0000 Xxx) and the 1934 Act
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, any Exchange and
administrators of state securities or blue sky laws, granting unto said
attorney-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 might or could do in person,
thereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their respective substitute or substitutes, shall do or cause to
be done by virtue hereof.
6. The Delaware Trustee shall take such action or refrain from
taking such action under this Declaration as it may be directed in writing by
the Sponsor from time to time; provided, however, that the Delaware Trustee
shall not be required to take or refrain from taking any such action if it shall
have determined, or shall have been advised by counsel, that such performance is
likely to involve the Delaware Trustee in personal liability or is contrary to
the terms of this Declaration or of any document contemplated hereby to which
the Trust or the Delaware Trustee is a party or is otherwise contrary to law. If
at any time the Delaware Trustee determines that it requires or desires guidance
regarding the application of any provision of this Declaration or any other
document, then the Delaware Trustee may deliver a notice to the Sponsor
requesting written instructions as to the course of action desired by the
Sponsor, and such instructions shall constitute full and complete authorization
and protection for actions taken by the Delaware Trustee in reliance thereon. If
the Delaware Trustee does not receive such instructions it may refrain from
taking any action with respect to the matters described in such notice to the
Sponsor.
7. This Declaration of Trust may be executed in one or more
counterparts.
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8. The number of Trustees initially shall be two (2) 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 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 otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any time.
A Trustee may resign upon thirty (30) days' prior notice to the Sponsor.
9. This Declaration of Trust shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware.
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.
THE ST. XXXX COMPANIES, INC.,
as Sponsor
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as Delaware
Trustee
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx,
as Administrative Trustee
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