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Exhibit 4(g)
DECLARATION OF TRUST
OF
BANCWEST CAPITAL II
This DECLARATION OF TRUST, dated as of October 20, 2000 (this
"Declaration"), is entered by and among BANCWEST CORPORATION, a Delaware
corporation, as sponsor (the "Sponsor"), BANK ONE DELAWARE, INC., a Delaware
corporation, as trustee (the "Delaware Trustee"), BANK ONE TRUST COMPANY, N.A.,
a national banking corporation, as trustee (the "Property Trustee"), and XXXXXXX
X. XXXXXXXXX, III, as trustee (the "Administrative Trustee" and collectively
with the Delaware Trustee and the Property Trustee, the "Trustees"). The Sponsor
and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "BancWest
Capital II," in which name the Trustees, or the Sponsor to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of ten dollars ($10.00), which amount shall constitute the initial
trust estate. 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 Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, 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 (the "Preferred Securities") and common
securities by the Trust as such securities will be described 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 and licenses, consents
or approvals required by applicable law or otherwise.
4. The Sponsor, as sponsor of the Trust, is hereby authorized and
directed (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") (a) a 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 New York Stock Exchange or any other national
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stock exchange or The Nasdaq National Market (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 negotiate and execute an underwriting
agreement among the Trust, the Sponsor and the underwriter(s) thereto relating
to the offer and sale of the Preferred Securities, substantially in the form
included or to be incorporated as an exhibit to the 1933 Act Registration
Statement, (iv) to execute and file such applications, reports, surety bonds,
irrevocable consents, appointments of attorneys 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 Sponsor, on behalf of the Trust, may deem necessary or
desirable and (v) to execute and deliver letters or documents to, or instruments
for filing with, a depository relating to the Preferred Securities of the Trust.
It is hereby acknowledged and agreed that in connection with any
document referred to in clauses (i), (ii) and (iv) above, Bank One Delaware,
Inc. and Bank One Trust Company, N.A., in their capacities as trustees 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 Exchanges or state securities or blue sky laws, and in such case
only to the extent so required.
5. This Declaration may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) 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 Sponsor which may increase or decrease the
number of Trustees; provided that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may resign
upon thirty days prior notice to the Sponsor.
7. Bank One Delaware, Inc., in its capacity as trustee, shall not have
the powers or the duties of the Trustee set forth herein (except as may be
required under the Business trust Act) and shall be a Trustee hereunder for the
sole and limited purpose of fulfilling the requirements ofSection3807(a) of the
Business Trust Act.
8. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities at the election of the Sponsor.
9. The Sponsor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (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 are asserted at any time against, such Indemnified Persons
with respect to the performance of this
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Declaration, the creation, operation or termination of the Trust or the
transactions contemplated hereby; provided, however, that the Sponsor shall not
be required to indemnify any Indemnified Person for any Expenses which are a
result of the willful misconduct, bad faith or gross negligence of such
Indemnified Person.
10. This Declaration shall be governed by and construed in accordance
with the laws of the State of Delaware.
[The rest of this page has been left blank intentionally; the signature page
follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
BANCWEST CORPORATION,
as Sponsor
By: /s/ XXXXXX X. XXXX
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Name: XXXXXX X. XXXX
Title Executive Vice President and
Chief Financial Officer
BANKONE DELAWARE, INC., as Delaware Trustee
By: /s/ XXXXXX X. XXXXXX
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Name: XXXXXX X. XXXXXX
Title VICE PRESIDENT
BANKONE TRUST COMPANY, N.A., as Property Trustee
By: /s/ XXXXXX X. XXXXXX
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Name: XXXXXX X. XXXXXX
Title VICE PRESIDENT
/s/ XXXXXXX X. XXXXXXXXX, III
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XXXXXXX X. XXXXXXXXX, III, as Administrative Trustee