1
EXHIBIT 4.12
SOUTHSIDE CAPITAL TRUST II
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of October 12, 2000, is between (i)
SOUTHSIDE BANCSHARES, INC., a Texas corporation (the "Depositor"), (ii)
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Delaware and
property trustee (the "Delaware Trustee"), and XXX XXXXXX and XXX X. XXXXXX,
each an individual, as administrative trustees (the "Administrative trustees"
and collectively with the Delaware Trustee, the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Southside
Capital Trust II."
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Administrative Trustees the sum of $10.00. The Administrative 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.
3. 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.
4. 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.
5. 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 (collectively, the "Trust Securities"). 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.
6. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the agent 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-2 (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 (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
2
amended; (ii) to file with the New York Stock Exchange or any other national
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 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.
7. (a) The Trustees and their officers, directors, agents and
servants (collectively, 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 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 willful misconduct 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.
(c) The Depositor agrees, to the fullest extent permitted by
applicable law, (i) to indemnify and hold harmless each Fiduciary Indemnified
Person 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 of Trust, 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 (ii) 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
3
determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
(d) The provisions of Section 7 shall survive the termination
of this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
8. 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 Depositor, who 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 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 written notice to the
Depositor.
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 principles).
10. This Trust Agreement may be executed in one or more counterparts.
11. The Trust may terminate without issuing any Trust Securities at the
election of the Depositor.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have caused this Trust Agreement to be duly executed as of the date first
written above.
SOUTHSIDE BANCSHARES, INC.,
as Depositor
By:
-------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:
-------------------------------------
Name:
Title:
----------------------------------------
XXX XXXXXX, as Administrative Trustee
----------------------------------------
XXX X. XXXXXX, as Administrative Trustee
