EXHIBIT 4.1
FIDBANK CAPITAL TRUST I
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of July 14, 1998, is by and between (i)
Fidelity BancShares (N.C.), Inc., a Delaware corporation (the "Depositor"), and
(ii) Bankers Trust (Delaware), a Delaware banking corporation, as Delaware
trustee ("Trustee"). The Depositor and the Trustee hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "FIDBANK
Capital Trust I."
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. The
Trustee hereby declares that it 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. ss. 3801 et seq. (the "Business Trust Act"), and that this document
constitutes the governing instrument of the Trust.
4. 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.
5. The Depositor, the Trustee and others will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form to be included as an exhibit to the Registration Statement on Form S-1
(the "1933 Act Registration Statement") referred to below, or in such other form
as the Trustee and the Depositor may approve, to provide for the contemplated
operation of the Trust created hereby and the issuance of Capital Securities and
Common Securities referred to therein. Prior to the execution and delivery of
such amended and restated Trust Agreement, 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. Notwithstanding the foregoing, the Trustee may take
all actions deemed proper as are necessary to effect the transactions
contemplated herein.
6. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to 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 (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Capital Securities of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Capital Securities required to be filed pursuant to Rule 424 under 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 Capital Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to file with the American
Stock Exchange 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 Capital Securities to be listed
on the American Stock Exchange; (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 Capital 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, deliver and perform
on behalf of the Trust, an underwriting agreement with the Depositor and the
underwriter or underwriters of the Capital Securities of the Trust. In the event
that any filing referred to in clauses (i)-(iii) above is required by the rules
and regulations of the Commission, the American Stock Exchange or state
securities or Blue Sky laws to be executed on behalf of the Trust by the
Trustee, the Trustee, in its capacity as trustee of the Trust, is hereby
authorized and 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 trustee of the Trust, shall not be require 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 American
Stock Exchange or state securities or Blue Sky laws. In connection with all of
the foregoing, each of the Trustee, solely in its capacity as trustee of the
Trust, and the Depositor hereby constitute and appoint Xxxxxxx X. Xxxxx as its
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for the Depositor or in the Depositor's name, place and stead, in
any and all capacities, to sign any and all amendments (including all
pre-effective and 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 any other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent 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 might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent or his respective substitute or substitutes,
shall do or cause to be done by virtue hereof.
7. This Trust Agreement may be executed in one or more counterparts.
8. The number of trustees initially shall be one (1) 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. Any
trustee 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).
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.
FIDELITY BANCSHARES (N.C.) , INC.
as Depositor
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
BANKERS TRUST (DELAWARE),
as Delaware trustee, and not in its
individual capacity
By: /s/ M. Xxxx Xxxxxxx
------------------------
Name: M. Xxxx Xxxxxxx
Title: Assistant Secretary
AMENDMENT NO. 1 TO TRUST AGREEMENT
OF
FIDBANK CAPITAL TRUST I
This Amendment No. 1 to Trust Agreement of FIDBANK Capital Trust I
(this "Amendment"), is entered into by and between Fidelity BancShares (N.C.),
Inc., a Delaware corporation, as depositor (the "Depositor"), and Bankers Trust
(Delaware), a Delaware banking corporation, as trustee (the "Delaware Trustee").
WHEREAS, the Depositor and the Delaware Trustee heretofore created
and continued a business trust known as FIDBANK Capital Trust I (the "Trust")
pursuant to and in accordance with the Delaware Business Trust Act (12 Del. C.
ss. 3801, et seq.), as amended from time to time, and the Trust Agreement of the
Trust, dated as of July 14, 1998 (the "Original Agreement");
WHEREAS, in accordance with the terms of the Original Agreement, the
Depositor and the Delaware Trustee hereby consent to the adoption of this
Amendment; and
WHEREAS, the parties hereto desire to amend the Original Agreement
as set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
AMENDMENT
Notwithstanding anything in the Original Agreement to the contrary,
the parties hereto amend Section 6 of the Original Agreement by deleting the
reference to "Xxxxxxx X. Xxxxx" contained therein and substituting therefor a
reference to "Xxxxx X. Xxxxxxx".
MISCELLANEOUS
1. Successors and Assigns. This Amendment shall be binding upon, and
shall enure to the benefit of, the parties hereto and their respective
successors and assigns.
2. Full Force and Effect. Except to the extent modified hereby, the
Original Agreement shall remain in full force and effect.
3. Counterparts. This Amendment may be executed in counterparts, all
of which together shall constitute one agreement binding on all parties hereto,
notwithstanding that all such parties are not signatories to the original or
same counterpart.
4. Governing Law. This Amendment shall be governed by, and construed
under, the laws of the State of Delaware, all rights and remedies being governed
by said laws.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Amendment as of the 21st day of July, 1998.
DEPOSITOR:
FIDELITY BANCSHARES (N.C.), INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman and CEO
TRUSTEE:
BANKERS TRUST(DELAWARE), as Delaware
trustee and not in its individual capacity
By: /s/ M. Xxxx Xxxxxxx
----------------------
Name: M. Xxxx Xxxxxxx
Title: Assistant Secretary
