DECLARATION OF TRUST OF EVANS CAPITAL TRUST II
Exhibit 4.12
This DECLARATION OF TRUST, dated as of March 23, 2010 (the “Declaration of Trust”), among
Xxxxx Bancorp, Inc., a New York corporation, as depositor (the “Depositor”), Wilmington Trust
Company, as trustee (the “Trustee”), and Xxxxx X. Xxxxx, Xxxx X. Xxxxxxx and Xxxx X. Xxxxxxxxx as
administrative trustees (the “Administrative Trustees” and together with the Trustee collectively,
the “Trustees”). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as Xxxxx Capital Trust II (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 on behalf of the Trust, and xxx and be sued on behalf of the
Trust.
2. The Depositor hereby assigns, transfers, conveys and sets over to the Trust the sum of $10,
which amount shall constitute the initial trust estate. It is the intention of the parties hereto
that the Trust created hereby constitute a statutory trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. § 3801 et seq. (the “Statutory 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 Statutory Trust Act.
3. The Depositor and the Trustees will enter into an Amended and Restated Declaration of
Trust, satisfactory to each such party and having substantially the terms described in the
Prospectus (as defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Capital Securities and 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 Depositor and the Trustees hereby authorize and direct the Depositor, as the Depositor
of the Trust, (i) to prepare and distribute any prospectus or supplemental prospectus on behalf of
the Trust, including the prospectus relating to the Capital Securities of the Trust and certain
other securities (the “Prospectus”) and any necessary or desirable amendments thereto (including
any exhibits contained therein or forming a part thereof); (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 as the Depositor, on behalf of the Trust, may
deem necessary or desirable to register the Capital Securities under, or obtain for the Capital
Securities an exemption from, the securities or “Blue Sky” laws; (iii) to execute on behalf of the
Trust such underwriting or purchase agreements with one or more underwriters, purchasers or agents
relating to the offering of the Capital Securities as the Depositor, on behalf of the Trust, may
deem necessary or desirable; and (iv) 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. If any filing referred to in clauses (i) or (ii) above is required by law or by the rules and regulations of the
applicable governmental agency, self-regulatory organization or other person or organization to be
executed on behalf of the Trust by one of the Trustees, the Depositor and any of the Trustees
appointed pursuant to Section 6 hereof are hereby authorized 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 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 any such law, rule or
regulation.
5. The Trustees shall not have any duty or obligation under or in connection with this
Declaration of Trust or any document contemplated hereby, except as expressly provided by the terms
of this Declaration of Trust, and no implied duties or obligations shall be read into this
Declaration of Trust against the Trustees. The right of the Trustees to perform any discretionary
act enumerated herein shall not be construed as a duty. None of the Trustees have any duty or
obligation to supervise or monitor the performance of, or compliance with this Declaration of Trust
by, the Depositor or any beneficial owner or any other trustee of the Trust. None of the Trustees
shall be liable for the acts or omissions of the Depositor or any beneficial owners or any other trustee of the Trust nor
shall any Trustee be liable for any act or omission by it in good faith in accordance with the
directions of the Depositor.
6. 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 Statutory 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 of the Trustees at any time. Any of the Trustees may resign upon thirty days’ prior
notice to the Depositor; provided, however, that such notice shall not be required if it is waived
by the Depositor.
7. The Depositor hereby agrees to (i) reimburse the Trustee for all reasonable expenses
(including reasonable fees and expenses of counsel and other experts), (ii) indemnify, defend and
hold harmless the Trustee and the officers, directors, employees and agents of the Trustee
(collectively, including the 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 of Trust, the creation, operation, administration or termination of
the Trust, or the transactions contemplated hereby; provided, however, that the
Depositor shall not be required to indemnify an 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 each such Indemnified Person Expenses 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 Depositor of an undertaking, by or on
behalf of such Indemnified Person, to repay such amount if it shall be
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determined that such Indemnified Person is not entitled to be indemnified therefor under this Section 7. The obligations
of the Depositor under this Section 7 shall survive the resignation or removal of the Trustees and
shall survive the termination, amendment, supplement, and/or restatement of this Declaration of
Trust.
8. The Trustee is authorized to take such action or refrain from taking such action under this
Declaration of Trust as they may be directed in writing by the Depositor from time to time;
provided, however, that the Trustee shall not be required to take or refrain from
taking any such action if the Trustee shall have determined, or shall have been advised by counsel,
that such performance is likely to involve the Trustee in personal liability or is contrary to the
terms of this Declaration of Trust or of any document contemplated hereby to which the Trust or the
Trustee are a party or is otherwise contrary to law. If at any time the Trustees determines that
they require or desire guidance regarding the application of any provision of this Declaration of
Trust or any other document, or regarding compliance with any direction received hereunder, then
the Trustee may deliver a notice to the Depositor requesting written instructions as to the course
of action desired by the Depositor, and such instructions shall constitute full and complete
authorization and protection for actions taken and other performance by the Trustee in reliance
thereon. Until the Trustee has received such instructions after delivering such notice, they may
refrain from taking any action with respect to the matters described in such notice.
9. This Declaration of Trust shall be governed by, and construed in accordance with, the laws
of the State of Delaware (without regard to conflict of laws principles).
10. This Declaration of Trust may be executed in one or more counterparts.
11. The Trust may dissolve at the written direction of the Depositor. Upon dissolution, the
Trustee shall, at the written direction and expense of the Depositor, file a certificate of
cancellation in accordance with the Act. Any remaining expenses of the Trust shall be paid by the
Depositor.
[Signature page follows]
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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 BANCORP, INC., as Depositor |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | President and Chief Executive Officer | |||
| WILMINGTON TRUST COMPANY, as Trustee |
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| By: | /s/ Xxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxx | |||
| Title: | Senior Financial Services Officer | |||
| ADMINISTRATIVE TRUSTEES |
||||
| /s/ Xxxxx X. Xxxxx | ||||
| Name: Xxxxx X. Xxxxx | ||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Name: Xxxx X. Xxxxxxx | ||||
| /s/ Xxxx X. Xxxxxxxxx | ||||
| Name: Xxxx X. Xxxxxxxxx | ||||
