EXHIBIT 4.2
TRUST AGREEMENT
OF
BTI CAPITAL TRUST
TRUST AGREEMENT (this "Declaration of Trust"), dated as of October 17,
1997, between Breed Technologies, Inc., a Delaware corporation, as depositor or
sponsor (the "Depositor"), and Wilmington Trust Company, a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as BTI Capital Trust
(the "Trust"), in which name the Trustee, 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 Trustee the sum of $1. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it 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 3 of Title 12 of
the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustee is 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 Trustee will enter into an amended and
restated declaration or agreement of Trust, satisfactory to each such party, to
provide for the contemplated operation of the Trust created hereby and the
issuance of the capital or preferred securities and common securities referred
to therein. Prior to the execution and delivery of such amended and restated
agreement or declaration of Trust, the Trustee 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.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to prepare and distribute one or
more offering circulars on behalf of the Trust, including any necessary or
desirable amendments thereto (including any exhibits contained therein or
forming a part thereof), relating to the capital securities or preferred
securities of the Trust and certain other securities; (ii) if and at such time
as determined by the Depositor, to execute and file an application, and all
other applications, statements, certificates, agreements and other instruments
that shall be necessary or desirable to cause the Capital Securities to be
listed on the Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") Market, with
PORTAL, and, if and at such time as determined by the Depositor, with the New
York Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing or quotation of the Capital Securities of the Trust; (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 Capital Securities under, or obtain for
the capital or preferred securities an exemption from, the securities or "Blue
Sky" laws; (iv) to execute, deliver and perform on behalf of the Trust one or
more underwriting agreements, purchase agreements, pricing agreements, exchange
agreements, registration rights agreements and other similar or related
agreements providing for or relating to the sale of the capital or preferred
securities of the Trust and the exchange of the capital or preferred securities
of the Trust for capital or preferred securities of the Trust with the same
terms as the capital or preferred Securities of the Trust (the "Exchange Capital
Securities")(except that the Exchange Capital Securities will not contain terms
with respect to the transfer restrictions under the Securities Act of 1933, as
amended, or for the provision of any increased distribution rate under certain
circumstances); and (v) to execute on behalf of the Trust any and all documents,
papers and instruments as may be desirable in connection with any of the
foregoing. If any filing referred to in clauses (i), (ii) and (iii) above is
required by law or by the rules and regulations of applicable governmental
agency, self-regulatory organization or other person or organization to be
executed on behalf of the Trust by a Trustee, the Depositor and any trustee of
the Trust 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.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The Trustee shall initially be the only trustee of the Trust.
Thereafter, the Depositor may increase or decrease (but not below one) the
number of trustees of the Trust by executing a written instrument fixing such
number; provided, however, that so long as it is required by the Business a
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Trust Act, one trustee of the Trust shall be either a natural person who is a
resident of the State of Delaware or an entity other than a natural person that
has its principal place of business in the State of Delaware and that, in either
case, 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 Trustee may resign upon thirty days' prior notice to
the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
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.
BREED TECHNOLOGIES, INC., as
Depositor
By: /s/ ^^
____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ ^^
____________________________________
Name: ^^
Title: ^^
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