EXHIBIT 4.16
TRUST AGREEMENT
OF
X. X. XXXXXXX CAPITAL TRUST III
THIS TRUST AGREEMENT is made as of March 22, 2001 (this "Trust Agreement"),
by and among X. X. Xxxxxxx Corporation, a Delaware corporation, as Depositor
(the "Depositor"), and The Bank of New York, a New York corporation, as property
trustee (the "Property Trustee"), The Bank of New York (Delaware), a Delaware
banking corporation, as trustee (the "Delaware Trustee"), Xxx X. Xxxxxxxx, an
individual, as trustee (the "First Administrative Trustee"), and Xxxxxx X.
Xxxxxxx, an individual, as trustee (the "Second Administrative Trustee" and
together with the First Administrative Trustee, the "Administrative Trustees")
(the Property Trustee, the Delaware Trustee and the Administrative Trustees are
hereinafter collectively referred to as the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "X. X. Xxxxxxx Capital Trust
III" (the "Trust"), in which name the 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
Trust the sum of $10. Such 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.
(S) 3801, et seq. (the "Business 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 such form as the Trustees may approve.
3. The Depositor and the Trustees expect 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 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 of 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. Notwithstanding the
foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Depositor, as depositor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (each as herein defined), on
behalf of the Trust, (a) a Registration Statement (the "1933 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the
Preferred Securities of the Trust, (b) any preliminary prospectus or prospectus
or supplement thereto relating to the Preferred Securities of the Trust required
to be filed pursuant to the 1933 Act, and (c) a Registration Statement on Form
8-A or other appropriate form (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) if and at such time as determined by the
Depositor, to file with the New York Stock Exchange or other exchange, or the
National Association of Securities Dealers ("NASD"), and execute on behalf of
the Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities of the Trust to be listed on the New
York Stock Exchange or such other exchange, or the NASD's Nasdaq National
Market; (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 that shall be necessary or
desirable to register the Preferred Securities of the Trust under the securities
or "Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the
Trust, may deem necessary or desirable; (iv) to execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities of the Trust; (v) to execute, deliver and perform on behalf
of the Trust an underwriting agreement with one or more underwriters relating to
the offering of the Preferred Securities of the Trust; and (vi) to execute on
behalf of the Trust such purchase agreements with one or more purchasers or
agents relating to an offering of securities of the Trust as the Depositor, in
its sole discretion on behalf of the Trust, may deem necessary or desirable.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustees, the Administrative Trustees, in their
capacity as trustees of the Trust, are hereby authorized to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four and
thereafter the number of trustees of the Trust 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 of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
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 of the Trust at any time. Any trustee of the
Trust may resign upon thirty days' prior notice to the Depositor.
7. The Bank of New York (Delaware), in its capacity as Trustee, shall not
have the powers or duties of the Trustees 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 of Section 3807(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 Depositor.
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9. (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 Preferred Securities (the Trust, the
Depositor, the Trustees 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, bad faith 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 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 Preferred 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, or
any of its respective 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, bad faith or willful misconduct with respect to such acts or
omissions, and (ii) to advance expenses (including reasonable legal fees)
incurred by a Fiduciary Indemnified Person in defending any claim, demand,
action, suit or proceeding, 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.
(d) The provisions of Section 9 shall survive the termination of this Trust
Agreement or the earlier resignation or removal of the Fiduciary Indemnified
Persons.
10. 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).
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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.
X.X. XXXXXXX CORPORATION,
as Depositor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President,
Chief Financial Officer and
Treasurer
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Xxxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
Administrative Trustee
/s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx, not in his individual
capacity but solely as trustee of the Trust
Administrative Trustee
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx, not in his individual
capacity but solely as trustee of the Trust
