EXHIBIT 4.3
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of February 26, 2003 (this "Trust
Agreement"), among (i) Independent Bank Corporation, a Michigan corporation (the
"Depositor"), (ii) U.S. Bank Trust National Association, a national banking
association, as trustee, and (iii) Xxxxxxx X. Van Loan, Xxxxxx X. Xxxxxxx and
Xxxxx X. Xxxxxxxxxxx, 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:
1. The trust created hereby (the "Trust") shall be known as "IBC Capital
Finance II" in which name the Trustees, or the Depositor to the extent
provided herein, may engage in the transactions contemplated hereby, make
and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of Twenty-Five Dollars ($25.00). The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor, which
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 Delaware statutory trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq. (the "Delaware 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 Delaware Trust Act.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement, 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 Preferred Securities and Common
Securities 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.
4. The Depositor and the Trustees hereby authorize and direct the Depositor,
as the sponsor of the Trust, (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 the 1933 Act Registration Statement), relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto)
relating to the registration of the Preferred Securities of the Trust under
the Securities Exchange Act of 1934, as amended; (ii) to file with the
Nasdaq National Market or other national stock exchange or automated
quotation system (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 Depositor, on
behalf of the Trust, may deem necessary or desirable and (iv) to execute on
behalf of the Trust that certain Underwriting Agreement relating to the
Preferred Securities, among the Trust, the Depositor and the 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 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 U.S. Bank Trust National Association 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 Exchange or
state securities or blue sky laws. In connection with the filings referred
to above, the Depositor and Xxxxxxx X. Van Loan, Xxxxxx X. Xxxxxxx and
Xxxxx X. Xxxxxxxxxxx each as Trustees and not in their individual
capacities, hereby constitute and appoint Xxxxxxx X. Van Loan, Xxxxxx X.
Xxxxxxx and Xxxxx X. Xxxxxxxxxxx, and each of them, as their 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 Trustees' 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 Exchange 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.
5. This Trust Agreement may be executed in one or more counterparts.
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 Delaware 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. The Trustees may resign upon thirty
(30) days' prior notice to the Depositor.
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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).
8. The Trustees (the "Fiduciary Indemnified Persons") shall not be liable,
responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Trust's securities (the Trust,
the Depositor and any holder of the Trust's securities being a "Covered
Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by the Fiduciary Indemnified Persons in good
faith on behalf of the Trust and in a manner the Fiduciary Indemnified
Persons reasonably believed to be within the scope of authority conferred
on the Fiduciary Indemnified Persons by this Trust Agreement or by law,
except that the Fiduciary Indemnified Persons shall be liable for any such
loss, damage or claim incurred by reason of the Fiduciary Indemnified
Person's gross negligence or willful misconduct with respect to such acts
or omissions.
The Fiduciary Indemnified Persons shall be fully protected in relying in
good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Fiduciary Indemnified Persons reasonably believe are within
such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits, losses, or any other facts pertinent to
the existence and amount of assets from which distributions to holders of
the Trust's securities might properly be paid.
9. The Depositor agrees, to the fullest extent permitted by applicable law,
(a) to indemnify and hold harmless each Fiduciary Indemnified Person, or
any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by the Fiduciary Indemnified Persons by reason of
the creation, operation or termination of the Trust in a manner the
Fiduciary Indemnified Persons reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Persons by
this Trust Agreement, except that no Fiduciary Indemnified Persons
shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by the Fiduciary Indemnified Persons by reason of gross
negligence or willful misconduct with respect to such acts or
omissions; and
(b) to advance expenses (including legal fees) incurred by a Fiduciary
Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of
such claim, demand, action, suit or proceeding, upon receipt by the
Trust of an undertaking by or on behalf of such Fiduciary Indemnified
Persons to repay such amount if it shall be determined that such
Fiduciary Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection.
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10. The provisions of Section 9 shall survive the termination of this Trust
Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
INDEPENDENT BANK CORPORATION, as
Depositor
By: /s/ Xxxxxxx X. Van Loan
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Name: Xxxxxxx X. Van Loan
Title: President and Chief Executive
Officer
U.S. BANK TRUST NATIONAL
ASSOCIATION, as trustee
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
/s/ Xxxxxxx X. Van Loan , as Trustee
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Name: Xxxxxxx X. Van Loan
/s/ Xxxxxx X. Xxxxxxx , as Trustee
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Name: Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxxxxx , as Trustee
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Name: Xxxxx X. Xxxxxxxxxxx
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