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Exhibit 4.4
TRUST AGREEMENT
TRUST AGREEMENT, dated as of May 15, 2001 by and between First Busey
Corporation, a Nevada corporation, as "Depositor," and Wilmington Trust Company,
a Delaware banking corporation, as "Trustee."
Section 1. The Trust. The trust created hereby shall be known as
First Busey Capital Trust I (the "Trust"), in which name the Trustee, 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 Trustee the sum of $10.00. The Trustee hereby
acknowledges receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustee hereby declares that it
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 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.
Section 3. Amended and Restated Trust Agreement. The Depositor, the
Trustee and certain other parties 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 (as defined below) 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 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.
Section 4. Certain Authorizations. 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 execute,
in each case on behalf of the Trust, (a) the Registration Statement on Form S-3
(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
(the "Preferred Securities") 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 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
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other papers and documents as the Depositor, on behalf of the Trust, may deem
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws; 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. 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 a Trustee, the Depositor and any Trustee appointed
pursuant to Section 6 hereof are hereby authorized to join in any such filing
and to execute on behalf of the Trust any and all of the foregoing.
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. Trustee. The number of Trustees initially shall be one 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. The Trustee 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).
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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.
FIRST BUSEY CORPORATION as Depositor
By /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer and
Chairman of the Board
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WILMINGTON TRUST COMPANY, as Trustee
By /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
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Title: Administrative Account Manager
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