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Exhibit 4.4
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of August 29 , 2001 (this "Trust
Agreement"), among (i) Second Bancorp Incorporated, an Ohio corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking corporation, as
trustee, and (iii) X.X. (Xxxx) Blossom, Xxxxx X. Xxxxxxxxx and Xxxxxxxxxxx
Xxxxxxx, 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 "Second Bancorp
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
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.
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 Preferred Securities and Common
Securities 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.
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-3 (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) a Registration 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
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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 Underwriters 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 its or his 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 X.X. (Xxxx) Blossom, Xxxxx X. Xxxxxxxxx and
Xxxxxxxxxxx Xxxxxxx each as Trustees and not in their individual
capacities, hereby constitutes and appoints X.X. (Xxxx) Blossom, Xxxxx X.
Xxxxxxxxx and Xxxxxxxxxxx Xxxxxxx, and each of them, as their 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 Trustees' 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 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 to all intents and purposes as the
Depositor or such Trustee might or could to 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.
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
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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 principles).
8. The Trustees (the "Fiduciary Indemnified Persons") shall not be liable,
responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Trust's securities (the
Trust, the Depositor and any holder of the Trust's 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 Persons
in good faith on behalf of the Trust and in a manner the Fiduciary
Indemnified Persons reasonably believed to be within the scope of
authority conferred on the Fiduciary Indemnified Persons by this Trust
Agreement or by law, except that the Fiduciary Indemnified Persons shall
be liable for any such loss, damage or claim incurred by reason of the
Fiduciary Indemnified Person's gross negligence or bad faith with respect
to such acts or omissions.
The Fiduciary Indemnified Persons 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 Persons 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's securities might properly be paid.
9. The Depositor agrees, to the fullest extent permitted by applicable law,
(a) to indemnify and hold harmless each 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 Persons by reason
of the creation, operation or termination of the Trust in a manner
the Fiduciary Indemnified Persons reasonably believed to be within
the scope of authority conferred on the Fiduciary Indemnified
Persons by this Trust Agreement, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by the Fiduciary Indemnified
Persons 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 a 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 such Fiduciary
Indemnified Persons to repay such amount if it shall be determined
that
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such Fiduciary Indemnified Person is not entitled to be indemnified
as authorized in the preceding subsection.
10. The provisions of Section 9 shall survive the termination of this Trust
Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
SECOND BANCORP INCORPORATED
as Depositor
By: /s/ X.X. BLossom
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Name: X.X. (Xxxx) Blossom
Title: President
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Administrative Account Manager
/s/ X.X. BLossom , as Trustee
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Name: X.X. (Xxxx) Blossom
/s/ Xxxxx X. Xxxxxxxxx , as Trustee
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Name: Xxxxx X. Xxxxxxxxx
/s/ Xxxxxxxxxxx Xxxxxxx , as Trustee
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Name: Xxxxxxxxxxx Xxxxxxx
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