1
EXHIBIT 4.3
TRUST AGREEMENT, dated as of September 15, 1999, among OLD
NATIONAL BANCORP, a multi-bank holding company organized under the laws of
Indiana, (including any successors or assigns, the "Depositor"), BANK ONE TRUST
COMPANY, NA, a national banking association organized under the laws of the
United States (the "Property Trustee"), and BANK ONE DELAWARE, INC., a Delaware
corporation (the "Delaware Trustee") (the Property Trustee and the Delaware
Trustee referred to collectively as the "Issuer Trustees"). The Depositor and
Issuer Trustees hereby agree as follows:
1. The trust created hereby shall be known as "ONB Capital
Trust I," in which name the Issuer 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.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Property Trustee the sum of $10. The Property Trustee hereby
acknowledges receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Property 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. Code
ss. 3801 et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Issuer Trustees are hereby authorized
and directed to execute and file a certificate of trust in the office of the
Secretary of State of the State of Delaware in the form attached hereto. The
Trust is hereby established by the Depositor and the Issuer Trustees for the
purpose of (i) issuing and selling preferred securities ("Preferred Securities")
representing undivided beneficial interests in the assets of the Trust in
exchange for cash and investing the proceeds thereof in Junior Subordinated
Debentures of the Depositor (the "Debentures"), (ii) issuing and selling common
securities ("Common Securities" and, together with the Preferred Securities,
"Trust Securities") representing undivided beneficial interests in the assets of
the Trust to the Depositor in exchange for cash and investing the proceeds
thereof in additional Debentures and (iii) engaging in such other activities as
are necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities
by the Trust, the Depositor and the Issuer Trustees intend to 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 Preferred Securities and the Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Issuer Trustees shall not have any duty or obligation hereunder
or with respect to the trust estate.
4. The Depositor and the Property Trustee hereby authorize and
direct the Depositor, as the Depositor 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
2
Act of 1934, as amended; (ii) to file with The New York Stock Exchange or any
other national stock exchange (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 Underwriter named therein, substantially in the form
included as an exhibit to the 1933 Act Registration Statement. In connection
with the filings referred to above, the Depositor hereby constitutes and
appoints Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx and Xxxxxxxxxxx X. Xxxxxxx, 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 the 1933 Act Registration
Statement, the 1934 Act Registration Statement and 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 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 might or could
to 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 two (2) 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 the number of
trustees shall in no event be less than one (1); and provided, further, 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 meets any other requirements imposed by applicable 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 30 days prior notice to the
Depositor.
7. The recitals contained in this Trust Agreement shall be
taken as statements of the Depositor, and the Issuer Trustees do not assume any
responsibility for their correctness. The Issuer Trustees make no
representations as to the value or condition of the property of the Trust or any
part thereof. The Issuer Trustees make no representations as to the validity or
sufficiency of this Trust Agreement.
8. (a) The Issuer Trustees (the "Fiduciary Indemnified
Persons") shall not be liable, responsible or accountable in damages or
otherwise to the Trust, the Depositor or any
3
holder of the Trust Securities (the Trust, the Depositor and any holder of the
Trust 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 negligence or bad faith with respect to such acts or omissions.
(b) 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 believes 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 Trust
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
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.
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.
11. The Trust may terminate without issuing any Trust
Securities at the election of the Depositor.
12. The Delaware Trustee shall not have any of the powers or
duties of the Issuer Trustees set forth herein, except as required under the
Business Trust Act. The Delaware Trustee shall be an Issuer Trustee hereunder
for the sole and limited purpose of fulfilling the
4
requirements of 3807(a) of the Business Trust Act.
13. This Trust Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to the principles of conflict of laws.
[SIGNATURE PAGE FOLLOWS]
5
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
OLD NATIONAL BANCORP, as Depositor
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Operating
Officer
BANK ONE TRUST COMPANY, N.A., as
Property Trustee
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK ONE DELAWARE, INC., as Delaware
Trustee
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
