EXHIBIT 4.4
DECLARATION OF TRUST
OF
COMMUNITY CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of January 29, 1997 (this
"Trust Agreement"), by and between Community Bank System, 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 "Community Capital
Trust I" (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 sue 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
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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 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 Trustee may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
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, 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. Notwithstanding anything to the
contrary contained herein, the Trust shall be authorized to issue and sell
the Capital Securities at an offering price per Capital Security to be
determined by the Sponsor in its sole and absolute discretion, including,
without limitation, at an offering price that is less than the liquidation
amount thereof, which offering price shall be specified in the offering
material relating thereto and the Common Securities shall be issued and sold
at an offering price per Common Security that is equal to the offering price
per Capital Security.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission 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 any such document unless required by
the rules and regulations of the Commission or state securities or Blue Sky
laws.
5. This Trust Agreement 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. 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 Trust Agreement 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.
COMMUNITY BANK SYSTEM, INC.,
as Sponsor
By:
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Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as
trustee of the Trust
By:
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Name:
Title: