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EXHIBIT 4.5
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of April 14, 1998, among Amerus Life
Holdings, Inc., an Iowa corporation, as "Depositor," and First Union
Trust Company, National Association, a national banking association under the
federal laws of the United States of America, not in its individual capacity
but solely as Trustee. The Depositor and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "Amerus Capital II"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Trustee the sum of $10. The Trustee hereby acknowledges receipt of
such amount in trust from the Depositor, which amount shall constitute the
initial trust estate. The Trustee hereby declares that it 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. Section 3801 et seq. (the "Business
Trust Act"), and that this document constitutes 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 Depositor and the Trustee will enter into an amended and
restated Trust Agreement, satisfactory to each such party, 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 Trust Agreement (i) the
Trustee shall not have any duty or obligation hereunder or with respect to
the trust estate, except as otherwise required by applicable law and (ii) the
Depositor 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.
4. The Depositor, as the sponsor of the Trust, is hereby
authorized, in its discretion (i) to prepare and 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 Capital Securities of the Trust and
certain other securities and (b) a Registration Statement (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Capital Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with such securities exchange or exchanges or the Nasdaq
National Market System ("Nasdaq"), as shall be determined by the Depositor, and
prepare and execute 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 Capital Securities to be listed on
such securities exchanges or quoted on
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Nasdaq, as applicable; (iii) to prepare, 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 Capital Securities under the
securities or "Blue Sky" laws, and to obtain any permits under the insurance
laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable, (iv) to prepare, execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Capital Securities of the Trust, (v) to negotiate, execute, deliver and
perform, 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 included as Exhibit 1.2
to the 1933 Act Registration Statement and one or more registration rights
agreements, escrow agreements, subscription agreements and other similar or
related agreements providing for or relating to the sale and issuance of the
Capital Securities of the Trust and/or any other interests in the Trust, and
(vi) to prepare, execute and deliver on behalf of the Trust any and all
instruments, documents and papers as may be desirable in connection with the
foregoing. 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, any
securities exchange, Nasdaq or state securities or blue sky laws to be executed
on behalf of the Trust by the Trustee, First Union Trust Company, National
Association, 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. In connection with all of the foregoing, the
Depositor hereby constitutes and appoints Xxxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxx and Xxxxx X. Xxxxxxxxxxxxx, 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 in the Depositor'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, 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 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.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be one (1) 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 the
Trustee at any time. The Trustee may resign upon thirty days prior notice to
the Depositor.
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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
each of 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 Trust Agreement,
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 gross negligence
of such Indemnified Person, and (iii) advance to each 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 Depositor 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 7.
8. The Trustee shall take such action or refrain from taking
such action under this Trust Agreement as it 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 (i) it shall have
determined, or shall have been advised by counsel, that such performance is
likely to involve the Trustee in personal liability or (ii) it shall have
actual knowledge, or shall have been advised by counsel, that such performance
is contrary to the terms of this Trust Agreement or of any document
contemplated hereby to which the Trust or the Trustee is a party or is
otherwise contrary to law. If at any time the Trustee determines that it
requires or desires guidance regarding the application of any provision of this
Trust Agreement or any other document, 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 by the Trustee in
reliance thereon. The Trustee shall refrain from taking any action with
respect to the matters described in such notice to the Depositor until the
Trustee has received such instructions.
9. 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 of principles).
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IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first above written.
AMERUS LIFE HOLDINGS, INC., as
Depositor
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxxxx
Title: Senior Vice President
and Secretary
FIRST UNION TRUST COMPANY,
National Association, not in
its individual capacity but
solely as Trustee
By:/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
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