Exhibit 10.1
AMENDED AND RESTATED DECLARATION
OF TRUST
by and among
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
WILMINGTON TRUST COMPANY,
as Institutional Trustee,
1ST CONSTITUTION BANCORP,
as Sponsor,
and
ROBERT F. MANGANO and JOSEPH M. REARDON,
as Administrators,
Dated as of June 15, 2006
TABLE OF CONTENTS
Page ARTICLE I INTERPRETATION AND DEFINITIONS
1
Section 1.1.
Definitions
1
ARTICLE II ORGANIZATION
7
Section 2.1.
Name
7
Section 2.2.
Office
7
Section 2.3.
Purpose
7
Section 2.4.
Authority
8
Section 2.5.
Title to Property of the Trust
8
Section 2.6.
Powers and Duties of the Trustees and the Administrators
8
Section 2.7.
Prohibition of Actions by the Trust and the Institutional Trustee
12
Section 2.8.
Powers and Duties of the Institutional Trustee
12
Section 2.9.
Certain Duties and Responsibilities of the Trustees and Administrators
14
Section 2.10.
Certain Rights of Institutional Trustee
15
Section 2.11.
Delaware Trustee
17
Section 2.12.
Execution of Documents
17
Section 2.13.
Not Responsible for Recitals or Issuance of Securities
17
Section 2.14.
Duration of Trust
17
Section 2.15.
Mergers
17
ARTICLE III SPONSOR 19
Section 3.1.
Sponsor' s Purchase of Common Securities
19
Section 3.2.
Responsibilities of the Sponsor
19
Section 3.3.
Expenses
19
Section 3.4.
Right to Proceed
20
ARTICLE IV INSTITUTIONAL TRUSTEE AND ADMINISTRATORS 20
Section 4.1.
Number of Trustees
20
Section 4.2.
Delaware Trustee; Eligibility
20
Section 4.3.
Institutional Trustee; Eligibility
20
Section 4.4.
Administrators
21
Section 4.5.
Appointment, Removal and Resignation of Trustees and Administrators
21
Section 4.6.
Vacancies Among Trustees
23
Section 4.7.
Effect of Vacancies
23
Section 4.8.
Meetings of the Trustees and the Administrators
23
Section 4.9.
Delegation of Power
23
Section 4.10.
Conversion, Consolidation or Succession to Business
23
ARTICLE V DISTRIBUTIONS 24
Section 5.1.
Distributions
24
ARTICLE VI ISSUANCE OF SECURITIES 24
Section 6.1.
General Provisions Regarding Securities
24
Section 6.2.
Paying Agent, Transfer Agent and Registrar
25
Section 6.3.
Form and Dating
25
Section 6.4.
Mutilated, Destroyed, Lost or Stolen Certificates
25
Section 6.5.
Temporary Securities
26
i
Section 6.6.
Cancellation
26
Section 6.7.
Rights of Holders; Waivers of Past Defaults
26
ARTICLE VII DISSOLUTION AND TERMINATION OF TRUST
28
Section 7.1.
Dissolution and Termination of Trust
28
ARTICLE VIII TRANSFER OF INTERESTS
28
Section 8.1.
General
28
Section 8.2.
Transfer Procedures and Restrictions
29
Section 8.3.
Deemed Security Holders
31
ARTICLE IX LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS
32
Section 9.1.
Liability
32
Section 9.2.
Exculpation
32
Section 9.3.
Fiduciary Duty
32
Section 9.4.
Indemnification
33
Section 9.5.
Outside Businesses
35
Section 9.6.
Compensation; Fee
35
ARTICLE X ACCOUNTING
36
Section 10.1.
Fiscal Year
36
Section 10.2.
Certain Accounting Matters
36
Section 10.3.
Banking
36
Section 10.4.
Withholding
36
ARTICLE XI AMENDMENTS AND MEETINGS
37
Section 11.1.
Amendments
37
Section 11.2.
Meetings of the Holders of Securities; Action by Written Consent
38
ARTICLE XII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND THE DELAWARE TRUSTEE
39
Section 12.1.
Representations and Warranties of Institutional Trustee
39
Section 12.2.
Representations of the Delaware Trustee
40
ARTICLE XIII MISCELLANEOUS
41
Section 13.1.
Notices
41
Section 13.2.
Governing Law
42
Section 13.3.
Intention of the Parties
42
Section 13.4.
Headings
42
Section 13.5.
Successors and Assigns
42
Section 13.6.
Partial Enforceability
42
Section 13.7.
Counterparts
42
Annex I
Terms of Securities
Exhibit A-1
Form of Capital Security Certificate
Exhibit A-2
Form of Common Security Certificate
Exhibit B
Specimen of Initial Debenture
Exhibit C
Placement Agreement
ii
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
1ST CONSTITUTION CAPITAL TRUST II
June 15, 2006
AMENDED AND RESTATED DECLARATION OF TRUST (" Declaration" ) dated and effective as of June 15, 2006, by the Trustees (as defined herein), the Administrators (as defined herein), the Sponsor (as defined herein) and by the holders, from time to time, of undivided beneficial interests in the Trust (as defined herein) to be issued pursuant to this Declaration;
WHEREAS, the Trustees, the Administrators and the Sponsor established 1st Constitution Capital Trust II (the " Trust" ), a statutory trust under the Statutory Trust Act (as defined herein) pursuant to a Declaration of Trust dated as of May 30, 2006 (the " Original Declaration" ), and a Certificate of Trust filed with the Secretary of State of the State of Delaware on May 30, 2006, for the sole purpose of issuing and selling certain securities representing undivided beneficial interests in the assets of the Trust and investing the proceeds thereof in certain debentures of the Debenture Issuer (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have been issued; and
WHEREAS, the Trustees, the Administrators and the Sponsor, by this Declaration, amend and restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a statutory trust under the Statutory Trust Act and that this Declaration constitutes the governing instrument of such statutory trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the benefit of the holders, from time to time, of the securities representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to the provisions of this Declaration. The parties hereto hereby agree as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1. Definitions . Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning throughout;
(c) all references to " the Declaration" or " this Declaration" are to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to this Declaration unless otherwise specified; and
(e) a reference to the singular includes the plural and vice versa.
1
" Acceleration Event of Default" has the meaning set forth in the Indenture.
" Additional Interest" has the meaning set forth in the Indenture.
" Administrative Action" has the meaning set forth in paragraph 4(a) of Annex I.
" Administrators" means each of Robert F. Mangano and Joseph M. Reardon, solely in such Person' s capacity as Administrator of the Trust created and continued hereunder and not in such Person' s individual capacity, or such Administrator' s successor in interest in such capacity, or any successor appointed as herein provided.
" Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule thereunder.
" Authorized Officer" of a Person means any Person that is authorized to bind such Person.
" Bankruptcy Event" means, with respect to any Person:
(a) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of such Person in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or
(b) such Person shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of such Person of any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due.
" Business Day" means any day other than Saturday, Sunday or any other day on which banking institutions in New York City or Wilmington, Delaware are permitted or required by any applicable law or executive order to close.
" Capital Securities" has the meaning set forth in paragraph 1(a) of Annex I.
" Capital Security Certificate" means a definitive Certificate in fully registered form representing a Capital Security substantially in the form of Exhibit A-1.
" Capital Treatment Event" has the meaning set forth in paragraph 4(a) of Annex I.
" Certificate" means any certificate evidencing Securities.
" Closing Date" has the meaning set forth in the Placement Agreement.
" Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation.
" Common Securities" has the meaning set forth in paragraph 1(b) of Annex I.
2
" Common Security Certificate" means a definitive Certificate in fully registered form representing a Common Security substantially in the form of Exhibit A-2.
" Company Indemnified Person" means (a) any Administrator; (b) any Affiliate of any Administrator; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Administrator; or (d) any officer, employee or agent of the Trust or its Affiliates.
" Corporate Trust Office" means the office of the Institutional Trustee at which the corporate trust business of the Institutional Trustee shall, at any particular time, be principally administered, which office at the date of execution of this Declaration is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600, Attn: Corporate Trust Administration.
" Coupon Rate" has the meaning set forth in paragraph 2(a) of Annex I.
" Covered Person" means: (a) any Administrator, officer, director, shareholder, partner, member, representative, employee or agent of (i) the Trust or (ii) any of the Trust' s Affiliates; and (b) any Holder of Securities.
" Creditor" has the meaning set forth in Section 3.3.
" Debenture Issuer" means 1st Constitution Bancorp, a New Jersey corporation, in its capacity as issuer of the Debentures under the Indenture.
" Debenture Trustee" means Wilmington Trust Company, as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such successor trustee.
" Debentures" means the Floating Rate Junior Subordinated Deferrable Interest Debentures due 2036 to be issued by the Debenture Issuer under the Indenture.
" Defaulted Interest" has the meaning set forth in the Indenture.
" Delaware Trustee" has the meaning set forth in Section 4.2.
" Determination Date" has the meaning set forth in paragraph 4(a) of Annex I.
" Direct Action" has the meaning set forth in Section 2.8(d).
" Distribution" means a distribution payable to Holders of Securities in accordance with Section 5.1.
" Distribution Payment Date" has the meaning set forth in paragraph 2(b) of Annex I.
" Distribution Period" means (i) with respect to the Distribution paid on the first Distribution Payment Date, the period beginning on (and including) the date of original issuance and ending on (but excluding) the Distribution Payment Date in September 2006 and (ii) thereafter, with respect to a Distribution paid on each successive Distribution Payment Date, the period beginning on (and including) the preceding Distribution Payment Date and ending on (but excluding) such current Distribution Payment Date.
" Distribution Rate" means, for the Distribution Period beginning on (and including) the date of original issuance and ending on (but excluding) the Distribution Payment Date in September 2006, the rate per annum of 6.95%, and for each Distribution Period beginning on or after the Distribution Payment Date in September 2006, the Coupon Rate for such Distribution Period.
3
" Event of Default" means any one of the following events (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) the occurrence of an Indenture Event of Default; or
(b) default by the Trust in the payment of any Redemption Price or Special Redemption Price of any Security when it becomes due and payable; or
(c) default in the performance, or breach, in any material respect, of any covenant or warranty of the Institutional Trustee in this Declaration (other than those specified in clause (a) or (b) above) and continuation of such default or breach for a period of 60 days after there has been given, by registered or certified mail to the Institutional Trustee and to the Sponsor by the Holders of at least 25% in aggregate liquidation amount of the outstanding Capital Securities, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a " Notice of Default" hereunder; or
(d) the occurrence of a Bankruptcy Event with respect to the Institutional Trustee if a successor Institutional Trustee has not been appointed within 90 days thereof.
" Extension Period" has the meaning set forth in paragraph 2(b) of Annex I.
" Federal Reserve" has the meaning set forth in paragraph 3 of Annex I.
" Fiduciary Indemnified Person" shall mean each of the Institutional Trustee (including in its individual capacity), the Delaware Trustee (including in its individual capacity), any Affiliate of the Institutional Trustee or Delaware Trustee and any officers, directors, shareholders, members, partners, employees, representatives, custodians, nominees or agents of the Institutional Trustee or Delaware Trustee.
" Fiscal Year" has the meaning set forth in Section 10.1.
" Guarantee" means the guarantee agreement to be dated as of the Closing Date, of the Sponsor in respect of the Capital Securities.
" Holder" means a Person in whose name a Certificate representing a Security is registered, such Person being a beneficial owner within the meaning of the Statutory Trust Act.
" Indemnified Person" means a Company Indemnified Person or a Fiduciary Indemnified Person.
" Indenture" means the Indenture dated as of the Closing Date, between the Debenture Issuer and the Debenture Trustee, and any indenture supplemental thereto pursuant to which the Debentures are to be issued, as such Indenture and any supplemental indenture may be amended, supplemented or otherwise modified from time to time.
" Indenture Event of Default" means an " Event of Default" as defined in the Indenture.
" Institutional Trustee" means the Trustee meeting the eligibility requirements set forth in Section 4.3.
" Interest" means any interest due on the Debentures including any Additional Interest and Defaulted Interest.
4
" Investment Company" means an investment company as defined in the Investment Company Act.
" Investment Company Act" means the Investment Company Act of 1940, as amended from time to time, or any successor legislation.
" Investment Company Event" has the meaning set forth in paragraph 4(a) of Annex I.
" Liquidation" has the meaning set forth in paragraph 3 of Annex I.
" Liquidation Distribution" has the meaning set forth in paragraph 3 of Annex I.
" Majority in liquidation amount of the Securities" means Holder(s) of outstanding Securities voting together as a single class or, as the context may require, Holders of outstanding Capital Securities or Holders of outstanding Common Securities voting separately as a class, who are the record owners of more than 50% of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Securities of the relevant class.
" Maturity Date" has the meaning set forth in paragraph 4(a) of Annex I.
" Officers' Certificates" means, with respect to any Person, a certificate signed by two Authorized Officers of such Person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant providing for it in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or investigation as, in such officer' s opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with.
" OTS" has the meaning set forth in paragraph 3 of Annex I.
" Paying Agent" has the meaning specified in Section 6.2.
" Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.
" Placement Agreement" means the Placement Agreement relating to the offering and sale of Capital Securities in the form of Exhibit C.
" Property Account" has the meaning set forth in Section 2.8(c).
" Pro Rata" has the meaning set forth in paragraph 8 of Annex I.
5
" Quorum" means a majority of the Administrators or, if there are only two Administrators, both of them.
" Redemption Date" has the meaning set forth in paragraph 4(a) of Annex I.
" Redemption/Distribution Notice" has the meaning set forth in paragraph 4(e) of Annex I.
" Redemption Price" has the meaning set forth in paragraph 4(a) of Annex I.
" Registrar" has the meaning set forth in Section 6.2.
" Relevant Trustee" has the meaning set forth in Section 4.5(a).
" Responsible Officer" means, with respect to the Institutional Trustee, any officer within the Corporate Trust Office of the Institutional Trustee, including any vice-president, any assistant vice-president, any assistant secretary, the treasurer, any assistant treasurer, any trust officer or other officer of the Corporate Trust Office of the Institutional Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer' s knowledge of and familiarity with the particular subject.
" Restricted Securities Legend" has the meaning set forth in Section 8.2(b).
" Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
" Rule 3a-7" means Rule 3a-7 under the Investment Company Act.
" Securities" means the Common Securities and the Capital Securities.
" Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor legislation.
" Special Event" has the meaning set forth in paragraph 4(a) of Annex I.
" Special Redemption Date" has the meaning set forth in paragraph 4(a) of Annex I.
" Special Redemption Price" has the meaning set forth in paragraph 4(a) of Annex I.
" Sponsor" means 1st Constitution Bancorp, a New Jersey corporation, or any successor entity in a merger, consolidation or amalgamation, in its capacity as sponsor of the Trust.
" Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. a7a7 3801, et seq . as may be amended from time to time.
" Successor Entity" has the meaning set forth in Section 2.15(b).
" Successor Delaware Trustee" has the meaning set forth in Section 4.5(e).
" Successor Institutional Trustee" has the meaning set forth in Section 4.5(b).
" Successor Securities" has the meaning set forth in Section 2.15(b).
" Super Majority" has the meaning set forth in paragraph 5(b) of Annex I.
6
" Tax Event" has the meaning set forth in paragraph 4(a) of Annex I.
" 10% in liquidation amount of the Securities" means Holder(s) of outstanding Securities voting together as a single class or, as the context may require, Holders of outstanding Capital Securities or Holders of outstanding Common Securities voting separately as a class, who are the record owners of 10% or more of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Securities of the relevant class.
" 3-Month LIBOR" has the meaning set forth in paragraph 4(a) of Annex I.
" Transfer Agent" has the meaning set forth in Section 6.2.
" Treasury Regulations" means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
" Trust Property" means (a) the Debentures, (b) any cash on deposit in, or owing to, the Property Account and (c) all proceeds and rights in respect of the foregoing and any other property and assets for the time being held or deemed to be held by the Institutional Trustee pursuant to the trusts of this Declaration.
" Trustee" or " Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder.
" U.S. Person" means a United States Person as defined in Section 7701(a)(30) of the Code.
ARTICLE II
ORGANIZATION
Section 2.1. Name . The Trust is named " 1st Constitution Capital Trust II," as such name may be modified from time to time by the Administrators following written notice to the Holders of the Securities. The Trust' s activities may be conducted under the name of the Trust or any other name deemed advisable by the Administrators.
Section 2.2. Office . The address of the principal office of the Trust is c/o Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600. On at least 10 Business Days written notice to the Holders of the Securities, the Administrators may designate another principal office, which shall be in a state of the United States or in the District of Columbia.
Section 2.3. Purpose . The exclusive purposes and functions of the Trust are (a) to issue and sell the Securities representing undivided beneficial interests in the assets of the Trust, (b) to invest the gross proceeds from such sale to acquire the Debentures, (c) to facilitate direct investment in the assets of the Trust through issuance of the Common Securities and the Capital Securities and (d) except as otherwise limited herein, to engage in only those other activities necessary or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets, or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust not to be classified for United States federal income tax purposes as a grantor trust.
7
Section 2.4. Authority . Except as specifically provided in this Declaration, the Institutional Trustee shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by a Trustee in accordance with its powers shall constitute the act of and serve to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of the Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Declaration. The Administrators shall have only those ministerial duties set forth herein with respect to accomplishing the purposes of the Trust and are not intended to be trustees or fiduciaries with respect to the Trust or the Holders. The Institutional Trustee shall have the right, but shall not be obligated except as provided in Section 2.6, to perform those duties assigned to the Administrators.
Section 2.5. Title to Property of the Trust . Except as provided in Section 2.8 with respect to the Debenture ...
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