EXHIBIT 4.2
TRUST AGREEMENT
TRUST AGREEMENT, dated as of February 12, 1998, by and among: (i) National
City Bancshares, Inc., an Indiana corporation (the "Depositor"), (ii)
Wilmington Trust Company, a Delaware banking corporation, as trustee and (iii)
Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxx and Xxxxxxx X. Xxxxxxx, Xx., each an
individual, as trustees (each of such trustees in (ii) and (iii) a "Trustee" and
collectively, the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
Section 1. The Trust. The trust created hereby shall be known as NCBE
Capital Trust I (the "Trust"), in which name the Trustees, or the Depositor to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and xxx and be sued.
Section 2. The Trust Estate. The Depositor hereby assigns, transfers,
conveys and sets over to the Trust the sum of $10. Such amount shall constitute
the initial trust estate. The Trustees hereby declare that they will hold the
trust estate in trust for the Depositor. 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 accordance with the
provisions of the Business Trust Act.
Section 3. Amended and Restated Trust Agreement. The Depositor and the
Trustees will enter into an amended and restated Trust Agreement, satisfactory
to each such party and substantially in the form to be 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
Capital Securities (as defined below) and common securities of the Trust to be
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, 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.
Section 4. Certain Authorizations. The Depositor, as the sponsor of the
Trust, is hereby authorized (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf of the Trust
(a) the Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post- effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the preferred securities of the Trust (the "Capital
Securities") and certain other securities of the Depositor 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 Capital Securities of the Trust under Section 12 of the
Securities Exchange Act of 1934, as amended; (ii) to file with the Nasdaq
National Market and execute on behalf of the Trust a listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Capital
Securities to be listed on the Nasdaq National Market; (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 the Depositor on behalf of the Trust, may deem necessary or
desirable to register the Capital Securities under state securities or "Blue
Sky" laws; and (iv) to execute on behalf of the Trust that certain Underwriting
Agreement relating to the Capital Securities, among the Trust, the Depositor and
the several Underwriters named therein, substantially in the form filed 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, the Nasdaq Stock Market or state securities or
"Blue Sky" laws, to be executed on behalf of the Trust by one or more of the
Trustees, each of the Trustees, in its or his capacity as a trustee of the
Trust, is hereby authorized and, to the extent so required, 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 Wilmington Trust Company 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, the Nasdaq Stock Market or state securities
or "Blue Sky" laws. In connection with
the filings referred to above, the Depositor and Xxxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxx and Xxxxxxx X. Xxxxxxx, Xx, each as a Trustee and not in their individual
capacities, hereby constitute and appoint Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxx
and Xxxxxxx X. Xxxxxxx, Xx., and each of them, as its true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Trustee or in the Depositor's or such
Trustee'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 the 1934 Act Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, the Nasdaq National Market and administrators of the state
securities or "Blue Sky" laws, 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 Depositor 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 respective substitute or substitutes, shall do
or cause to be done by virtue hereof.
Section 5. Counterparts. This Trust Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 6. Trustees. The number of Trustees initially shall be four (4)
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 Depositor, 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 Depositor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon thirty days' prior notice to
the Depositor.
Section 7. Governing Law. 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 Trust Agreement to
be duly executed as of the day and year first above written.
NATIONAL CITY BANCSHARES, INC.,
as Depositor
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: President
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WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely as trustee
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
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Title: Financial Services Officer
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, not in his individual capacity,
but solely as trustee
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, not in his individual capacity,
but solely as trustee
/s/ Xxxxxxx X. Xxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxx, Xx., not in his individual
capacity, but solely as trustee
