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TRUST AGREEMENT
This TRUST AGREEMENT, dated as of May ---, 1997 (this "Trust
Agreement"), among (i) Xxxxxxx First National Corporation, an Arkansas
corporation (the "Depositor"), (ii) Wilmington Trust Company, a Delaware
banking corporation, as trustee, and (iii) X. Xxxxxx May, Xxxxx X. Xxxx and
Xxxx X. Xxxx, 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
"Xxxxxxx First Capital Trust" 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 the Trustees the sum of $10.00. 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 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 in accordance with the provisions of the Business 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 the Preferred
Securities and Common Securities 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 of 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, (the "1933 Act")
of the Preferred Securities of the Trust (including any registration
statement for the same offering that is to be effective upon filing pursuant
to Rule 462(b) under the 1933 Act), 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 Stock Market's National
Market or a 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
several Underwriters named therein, substantially in
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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 Wilmington Trust Company 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 X. Xxxxxx May, Xxxxx X. Xxxx and Xxxx X. Xxxx, each
as Trustees and not in their individual capacities, hereby constitutes and
appoints X. Xxxxxx May, Xxxxx X. Xxxx and Xxxx X. Xxxx, 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 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 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 four 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 any Trustee at any time. The Trustees may resign upon
30 days' prior notice to the Depositor.
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 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.
XXXXXXX FIRST NATIONAL CORPORATION
as Depositor
By:
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X. Xxxxxx May
Chief Executive Officer
WILMINGTON TRUST COMPANY
as Trustee
By:
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Name:
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Title:
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X. Xxxxxx May
as Trustee
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Xxxxx X. Xxxx
as Trustee
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Xxxx X. Xxxx
as Trustee
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