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EXHIBIT 4.4
TRUST AGREEMENT
TRUST AGREEMENT, dated as of July 23, 1999 (this "Trust Agreement"), by
and among (i) Mercantile Bank Corporation, a Michigan corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking corporation, as
trustee (the "Delaware Trustee"), and (iii) Xxxxxx X. Xxxxxxx, Xx., Xxxxxxx X.
Xxxxx and Xxxxxxx X. Christmas, each an individual, as trustees (each of such
trustees in (iii) an "Administrative Trustee" and together with the Delaware
Trustee collectively, the "Trustees").
SECTION 1. THE TRUST. The trust created hereby shall be known as MBWM
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 xxx and be sued.
SECTION 2. THE TRUST ESTATE. The Depositor hereby assigns, transfers,
conveys and sets over to the Trustees the sum of $10.00. The 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. 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 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 provisions of the Business Trust Act.
SECTION 3. AMENDED AND RESTATED TRUST AGREEMENT. The Depositor and the
Trustees 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 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 of the Trust to be referred to
therein. 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 any licenses,
consents or approvals required by applicable law or otherwise.
SECTION 4. CERTAIN AUTHORIZATIONS. The Depositor and the Trustees
hereby authorize and direct the Depositor, as the sponsor of the Trust, (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 SB-2
(the "1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to such 1933 Act Registration Statement (including the
prospectus and exhibits contained therein), relating to the registration under
the Securities Act of 1933, as amended, of the Preferred Securities of the Trust
and certain other securities of the Depositor and (b) a Registration Statement
on Form 8-A (including all pre-effective and post-effective amendments thereto)
relating to the registration of the Preferred Securities of the Trust
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under the Securities Exchange Act of 1934, as amended; (ii) to file with the
Nasdaq National Market 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 the 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 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; 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,
substantially in the form included as an exhibit to the 1933 Act Registration
Statement. 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, the
Nasdaq National Market or state securities or "Blue Sky" laws, to be executed on
behalf of the Trust by one or more of the Trustees, the Depositor is hereby
authorized and, to the extent 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 the Delaware Trustee 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 Nasdaq National Market or state
securities or "Blue Sky" laws.
SECTION 5. COUNTERPARTS. This Trust Agreement 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 four 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 be either 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. Any of the Trustees may resign upon thirty days' prior
notice to the Depositor.
SECTION 7. GOVERNING LAW. This Trust Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware (without
regard to conflicts of law of principles).
SECTION 8. This Trust Agreement may be amended by written agreement of
the parties hereto.
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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.
MERCANTILE BANK CORPORATION,
as Depositor
By:
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Chairman of the Board and
Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Trustee
By:
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Name:
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Title:
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ADMINISTRATIVE TRUSTEES
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Xxxxxx X. Xxxxxxx, Xx., as Administrative
Trustee
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Xxxxxxx X. Xxxxx, as Administrative
Trustee
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Xxxxxxx X. Christmas, as Administrative
Trustee
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