EXHIBIT 4.4
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of August 30, 2001 (this "Trust Agreement"),
among ABC BANCORP, a Georgia corporation (the "Depositor"), WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as trustee, and XXXXXXX X. XXXXXXXXX,
XXXX X. XXXXXX and W. XXXXX XXXX, XX., 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 "ABC 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 $10. 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 constitutes 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, and any amendments and modifications hereto,
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, (i) a Trustee shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law, and
(ii) the Depositor shall take or cause to be taken any action as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise. Notwithstanding the
foregoing, a Trustee is authorized to take all actions that it is directed to
take by the Depositor which the Depositor deems necessary, convenient or
incidental to effect the transactions contemplated herein. The Trustees shall
not have any duty or obligation under or in connection with this Trust Agreement
or any document contemplated hereby, except as expressly provided by the terms
of this Trust Agreement, and no implied duties or obligations shall be read into
this Trust Agreement against the Trustees. The right of a Trustee to perform any
discretionary act enumerated herein shall not be construed as a duty.
4. The Depositor, as the sponsor of the Trust, is hereby authorized, in
its discretion, (i) to prepare and 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 prepare and file with the American Stock Exchange, Inc. or another
national stock exchange or self-regulatory organization (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 Exchange; (iii) to prepare, file, execute and deliver 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; (iv) to negotiate, execute
and deliver on behalf of the Trust that certain Underwriting Agreement relating
to the Preferred Securities, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form included as an exhibit to
the 1933 Act Registration Statement; (v) to prepare, execute and deliver letters
or documents to, or instruments for filing with, a depository relating to the
Preferred Securities of the Trust; and (vi) to prepare, execute and deliver on
behalf of the Trust any and all documents, certificates, papers, instruments and
other writings as it deems desirable in connection with any of the foregoing. 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, his or her 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 Xxxxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx and W. Xxxxx Xxxx, Xx., each
as Trustees and not in their individual capacities, hereby constitutes and
appoints Xxxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxxx, and each of them, as its 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 execute and
deliver 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 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. Any Trustee may resign upon thirty (30) days' prior notice to the
Depositor.
7. (a) Each Trustee and its officers, directors, agents and servants
(each a "Fiduciary Indemnified Person") shall not be liable, responsible or
accountable in damages or otherwise to the Trust, the Depositor, the
Trustees or any holder of the Trust Securities (the Trust, the Depositor
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 such 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
foregoing limitation shall not limit the liability, if any, that a
Fiduciary Indemnified Person may have to a Covered Person for any such
loss, damage or claim to the extent incurred by reason of such Fiduciary
Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) A 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,
if selected by such Fiduciary Indemnified Person, has been selected with
reasonable care, 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.
(c) The Depositor agrees, to the fullest extent permitted by
applicable law, (i) to indemnify and hold harmless each Fiduciary
Indemnified Person, and 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 such Fiduciary Indemnified Person and arising from or relating
to the creation, operation or termination of the Trust, except that no
Fiduciary Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or claim to the extent incurred as a result of such
Fiduciary Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions, and (ii) to advance expenses (including
legal fees) incurred by a Fiduciary Indemnified Person in defending any
claim, demand, action, suit or proceeding, from time to time, prior to the
final disposition of such claim, demand, action, suit or proceeding, upon
receipt by the Depositor of an
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undertaking by or on behalf of such Fiduciary Indemnified Person to repay
such amount if it shall be determined that such Fiduciary Indemnified
Person is not entitled to be indemnified as authorized in this subsection.
(d) The provisions of Section 7 shall survive the termination of this
Trust Agreement and the resignation or removal of any and all Trustees that
are Fiduciary Indemnified Persons.
8. 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).
[Signatures Next Page]
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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.
ABC BANCORP,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Administrative Account Manager
/s/ Xxxxxxx X. Xxxxxxxxx
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XXXXXXX X. XXXXXXXXX, as Trustee
/s/ Xxxx X. Xxxxxx
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XXXX X. XXXXXX, as Trustee
/s/ W. Xxxxx Xxxx, Xx.
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W. XXXXX XXXX, XX., as Trustee
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