EXHIBIT 4.1
AMERICAN CAPITAL TRUST I
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of January 31, 2002, among (i) AMERICAN BANK
INCORPORATED, a Pennsylvania corporation (the "Depositor"), (ii) BANKERS TRUST
(DELAWARE), a Delaware banking corporation, as Delaware (the "Delaware
Trustee"), and XXXX X. XXXXXX, XXXX X. XXXXXXX and XXXXX X. XXXXXXXXX, 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 American Capital
Trust I, 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
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. However, notwithstanding the foregoing,
all Trustees may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
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, on behalf of the Trust, the Registration
Statement on Form SB-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; (ii) to file with The Nasdaq
National Market or the Over-the-Counter Bulletin Board (each, an Exchange) and
execute on behalf of the Trust one
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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; and (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. 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, Xxxx X. Xxxxxx, Xxxx X.
Xxxxxxx, and Xxxxx X. Xxxxxxxxx in their capacities as Trustees 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 Bankers Trust (Delaware) 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 Trustees, solely as
Trustees and not in their individual capacities, hereby constitutes and appoints
Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxxxx 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 do 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.
7. (a) The Trustees and their officers, directors, agents, shareholders,
members, partners, employees, representatives, nominees, custodians 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 gross 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
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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 gross 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 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 four (4) 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; provided, however, that no resignation of the Delaware Trustee shall
be effective until a successor Delaware Trustee has been appointed by the
Administrative Trustees and has accepted such appointment by an instrument
executed by such successor Delaware Trustee and delivered to the Administrative
Trustees, the Depositor and Bankers Trust (Delaware). In the event a successor
Delaware Trustee is not appointed within thirty (30) days of giving notice of
resignation, the Delaware Trustee shall have a right to petition a court of
competent jurisdiction to appoint a successor Delaware Trustee at the cost of
the Trust.
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).
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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.
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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.
AMERICAN BANK INCORPORATED,
as Depositor
By: \s\ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
BANKERS TRUST (DELAWARE),
as Trustee
By: \s\ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Assistant Vice President
\s\ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, as Trustee
\s\ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, as Trustee
\s\ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, as Trustee
