EXHIBIT 4.4
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of December 6, 1996 (this "Trust
Agreement"), among (i) United Community Bancshares, Inc., a Minnesota
corporation (the "Depositor"), (ii) Wilmington Trust Company, a Delaware banking
corporation, as trustee, and (iii) Xxxxxx X. X'Xxxxx, Xxxx X. XxXxx, and Xxxxxx
X. Xxxxxx, each an individual, as trustees (each of such trustees in (ii) and
(iii) a "Trustee" and collectively, the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "United
Capital Trust I" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated
hereby, make and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of Ten Dollars ($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 constitutes 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.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in
the form 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 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 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 S-1 (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to the 1933 Act
Registration Statement, relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) if required, a
Registration
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Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto)
relating to the registration of the Preferred Securities of the Trust
under the Securities Exchange Act of 1934, as amended; (ii) to file
with the Nasdaq National Market or a national stock exchange (each, an
"Exchange") and execute on behalf of the Trust one or more listing
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 any of the Exchanges;
(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 that certain Underwriting Agreement
relating to the Preferred Securities, among the Trust, the Depositor
and the Underwriter named therein, 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, an Exchange
or state securities or blue sky laws to be executed on behalf of the
Trust by one or more of the Trustees, each of the Trustees, in such
Trustee's capacity as a Trustee of the Trust, is hereby authorized
and, to the extent so 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 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 Exchange or state
securities or blue sky laws. In connection with the filings referred
to above, the Depositor and Xxxxxx X. X'Xxxxx, Xxxx X. XxXxx, and
Xxxxxx X. Xxxxxx, each as Trustees and not in their individual
capacities, hereby constitutes and appoints Xxxxxx X. X'Xxxxx, Xxxx X.
XxXxx, and Xxxxxx X. Xxxxxx, and each of them, as the Depositor's or
such Trustee's true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for the Depositor or such
Trustee or in the Depositor's or such Trustee's name, place and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement (if required) and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, the Exchange and administrators of the
state securities or blue sky laws, granting unto said
attorneys-in-fact and agents 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 and to all intents and purposes
as the Depositor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their respective substitute or substitutes, shall do
or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
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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 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
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 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 Trustees may resign upon thirty (30) days' prior
notice to the Depositor.
7. 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 of principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
UNITED COMMUNITY BANCSHARES, INC.,
as Depositor
By: /s/
---------------------------------
Name: Xxxxx X. Xxxx
Title: President
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/
-----------------------------------
Name:
Title:
/s/
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XXXXXX X. X'XXXXX, as Trustee
/s/
--------------------------------------
XXXX X. XXXXX, as Trustee
/s/
--------------------------------------
XXXXXX X. XXXXXX, as Trustee
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