1
EXHIBIT 4.4
TRUST AGREEMENT, dated as of July 9, 2001, between Team Financial, Inc., a
Kansas corporation (the "Sponsor"), Wilmington Trust Company, a Delaware banking
corporation, as trustee (the "Delaware Trustee"), and the individual trustees
identified on the signature page hereto (the "Individual Trustees") (the
Delaware Trustee and such Individual Trustees, collectively, the "Trustees").
The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Team Financial Capital Trust
I," in which name the Trustees, or the Sponsor to the extent provided herein,
may conduct the business of the Trust, make and execute contracts, and xxx and
be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. 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. Code ss. 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 in the office of the Secretary of State of the State of Delaware in the
form attached hereto. The Trust is hereby established by the Sponsor and the
Trustees for the purpose of (i) issuing trust preferred securities ("Preferred
Securities") representing undivided beneficial interests in the assets of the
Trust in exchange for cash and investing the proceeds thereof in debentures of
the Sponsor, (ii) issuing and selling common securities ("Common Securities"
and, together with the Preferred Securities, "Trust Securities") representing
undivided beneficial interests in the assets of the Trust to the Sponsor in
exchange for cash and investing the proceeds thereof in additional convertible
debentures of the Sponsor and (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities by the Trust,
the Sponsor and the Trustees intend to enter into an amended and restated Trust
Agreement, satisfactory to each such party, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and the Common Securities 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.
4. The Sponsor and the Trustees hereby authorize and direct the Sponsor, as
the sponsor of the Trust, (i) to prepare and file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) a Registration Statement on Form S-1 or S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such Registration Statement, relating to the registration of the
Preferred Securities under the Securities Act of 1933, as amended (the
"Securities Act") and (b) a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including any pre-effective or post-effective
amendments thereto) relating to the registration of the Preferred Securities
under Section 12(b) of the Securities Exchange Act of 1934, as amended; (ii) to
execute on behalf of the Trust and file with the National Association of
Securities Dealers
2
Automated Quotation System (the "Nasdaq National Market"), the New York Stock
Exchange or such other national securities exchange a listing application 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, the New York Stock Exchange or such
other national securities exchange; (iii) to prepare, execute and file, in each
case 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 Sponsor, on behalf of the Trust, may deem necessary or
desirable; and (iv) to negotiate the terms of, and execute on behalf of the
Trust, a purchase agreement among the Trust, the Sponsor and any underwriter,
dealer or agent relating to the offer and sale of the Preferred Securities,
satisfactory to each such party. In the event that any filing referred to in any
of clauses (i) - (iii) above is required by the rules and regulations of the
Commission, the Nasdaq National Market, the New York Stock Exchange or such
other national securities exchange or state securities or blue sky laws, to be
executed on behalf of the Trust by the Trustees, the Individual Trustees, in
their capacities as Trustees of the Trust, are 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 Wilmington Trust Company, 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 Nasdaq National Market, the New York
Stock Exchange or such other national securities exchange or state securities or
blue sky laws and unless the Delaware Trustee has received an indemnity
satisfactory to it.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be four (4) 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 Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be less than four (4); and provided, further, 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
meets any other requirements imposed by applicable law. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon 30 days prior notice to the
Sponsor.
7. (a) The Delaware Trustee (the "Fiduciary Indemnified Person") shall not
be liable, responsible or accountable in damages or otherwise to the Trust, the
Sponsor, the Trustees or any holder of the Trust Securities (the Trustees and
any holder of the Trust Securities being a "Covered Person") for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by the Fiduciary Indemnified Person in good faith on behalf of the Trust and in
a manner the Fiduciary Indemnified Person reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Person by this Trust
Agreement or by law, except that the Fiduciary Indemnified Person shall be
liable for any such loss, damage or
-2-
3
claim incurred by reason of the Fiduciary Indemnified Person's gross negligence
or bad faith with respect to such acts or omissions.
(b) The Fiduciary Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any person as to matters the
Fiduciary Indemnified Person reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to holders of Trust Securities might properly be paid.
8. The Sponsor agrees, to the fullest extent permitted by applicable law,
(a) to indemnify and hold harmless the Fiduciary Indemnified Person, or any
of its officers, directors, shareholders, employees, representatives or agents,
from and against any loss, damage, liability, tax, penalty, expense or claim of
any kind or nature whatsoever incurred by the Fiduciary Indemnified Person by
reason of the creation, operation or termination of the Trust in a manner the
Fiduciary Indemnified Person reasonably believed to be within the scope of
authority conferred on the Fiduciary Indemnified Person by this Trust Agreement,
except that no Fiduciary Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by the Fiduciary Indemnified
Person by reason of gross negligence or willful misconduct with respect to such
acts or omissions; and
(b) to advance expenses (including legal fees) incurred by the Fiduciary
Indemnified Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, prior to the final disposition of such claim, demand,
action, suit or proceeding, upon receipt by the Trust of an undertaking by or on
behalf of the Fiduciary Indemnified Person to repay such amount if it shall be
determined that the Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
9. The provisions of Section 9 shall survive the termination of this Trust
Agreement or the earlier resignation or removal of the Fiduciary Indemnified
Person.
10. The Trust may terminate without issuing any Trust Securities at the
election of the Sponsor.
11. This Trust Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to the
principles of conflict of laws.
-3-
4
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
TEAM FINANCIAL, INC.,
as Sponsor
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
-------------------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxxx,
as Trustee
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx,
as Trustee
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx,
as Trustee
-4-
5
CERTIFICATE OF TRUST
OF
TEAM FINANCIAL CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF Team Financial Capital Trust I (the "Trust")
is being duly executed and filed by the undersigned, as trustees, to form a
business trust under the Delaware Business Trust Act (12 Del. C. Section 3801
et seq.)
1. Name: The name of the business trust being formed hereby is Team
Financial Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware is Wilmington
Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trustee Administration.
3. Effective Date. This Certificate of Trust shall be effective upon its
filing in the office of the Secretary of State of the State of Delaware.
4. Counterparts. This Certificate of Trust may be executed in one or more
counterparts.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
6
---------------------------------------
Xxxxxx X. Xxxxxxxxxx, as Trustee
---------------------------------------
Xxxxxxx X. Xxxxxx, as Trustee
---------------------------------------
Xxxxxxx X. Xxxxxxxxx, as Trustee
WILMINGTON TRUST COMPANY, as Trustee
By:
-----------------------------------
Name:
Title:
-2-
