EXHIBIT 4.12
DECLARATION OF TRUST
OF
XXXXXXXX'X CAPITAL TRUST I
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of May 29, 1998, by and among Xxxxxxxx'x,
Inc., a Tennessee corporation, as "Depositor," and The First National Bank of
Chicago, a national bank organized under the laws of the United States, at
trustee, First Chicago Delaware Inc., a Delaware corporation, as trustee (the
"Delaware Trustee"), and Xx. Xxxxx X. Xxxxxx, as Administrative Trustee
(collectively, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
Section 1. THE TRUST. The trust created hereby shall be known as
Xxxxxxxx'x Capital Trust I (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 sue and be sued.
Section 2. THE TRUST ESTATE. The Depositor hereby assigns, transfers,
conveys and sets over to the Trustees the sum of $10, 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. (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 accordance with the
Business Trust Act.
Section 3. AMENDED AND RESTATED TRUST AGREEMENT. The Depositor and the
Trustees will enter into an amended and restated Declaration of Trust,
satisfactory to each such party and substantially in the form to be included as
an exhibit to the 1933 Act Registration Statement (as defined below), to provide
for the contemplated operations of the Trust created hereby and the issuance of
the Preferred Securities (as defined below) and common securities of the Trust
to be referred to 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 any licenses, consents or approvals required by
applicable law or otherwise.
Section 4. CERTAIN AUTHORIZATIONS. The Depositor, as the sponsor of the
Trust, is hereby authorized, in its discretion (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 "1993 Act
Registration Statement (including the prospectus and the exhibits contained
therein), relating to the registration under the Securities Act of 1933, as
amended, of the preferred securities of the Trust (the "Preferred Securities")
and certain other securities of the Depositor 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 Section 12 of the Securities Exchange
Act of 1934, as amended; (ii) to file with one or more national securities
exchanges (each, an "Exchange") or the National Association of Securities
Dealers ("NASD") and execute on behalf of the Trust a listing application or
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 such 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 as the Depositor, on behalf of
the Trust, may deem necessary or desirable to register the Preferred Securities
under the securities or "Blue Sky" laws; and (iv) to execute on behalf of the
Trust such Underwriting Agreements with one or more underwriters relating to the
offering of the Preferred Securities 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, any Exchange, the NASD or state securities or "Blue Sky" laws,
to be executed on behalf of the Trust by a Trustee, the Depositor and
the Trustees and any trustee appointed pursuant to Section 6 hereof are hereby
authorized to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that the Delaware Trustee, 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, the NASD or state
securities or "Blue Sky" laws.
Section 5. COUNTERPARTS. This Declaration of Trust may be executed in one
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 6. TRUSTEES. 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, 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 thirty days' prior notice to
the Depositor.
Section 7. GOVERNING LAW. This Declaration of Trust shall be governed by,
and construed in accordance with, the laws of the State of Delaware (without
regard to conflicts of law principles).
Section 8. First Chicago Delaware Inc., in its capacity as trustee of the
Trust, 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 of the Business Trust Act.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
XXXXXXXX'X, INC.,
as Depositor
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
The First National Bank of Chicago,
not in its individual capacity,
but solely as Trustee
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
First Chicago Delaware Inc.,
not in its individual capacity,
but solely as Trustee
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
Xxxxx X. Xxxxxx,
not in his individual capacity,
but solely as Trustee
/s/ Xxxxx X. Xxxxxx
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