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EXHIBIT 4.4
TRUST AGREEMENT
OF
PROSPERITY CAPITAL TRUST I
THIS TRUST AGREEMENT is made as of October 13, 1999 (this "Trust
Agreement"), by and among Prosperity Bancshares, Inc., a Texas corporation, as
Depositor (the "Depositor"), First Union Trust Company, National Association, a
national banking association with its principal place of business in the State
of Delaware, as trustee (the "Delaware Trustee"), and Xxxxx Xxxxxx, Xxxxx X.
Xxxxxxx and Xxxxx Xxxxxxxx, as trustees (the "Administrative Trustees"; and
together with the Delaware Trustee, the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Prosperity Capital Trust
I" (the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, 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 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 such form as the Trustees may
approve.
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 to be included as an exhibit to the Registration Statement on Form S-1
(the "1933 Act Registration Statement") referred to below, or in such other form
as the Trustees and the Depositor may approve, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Trust 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 duties or obligations hereunder or with respect of 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. Notwithstanding the foregoing, the
Trustees may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, and the Administrative Trustees, as
trustees of the Trust, acting singly or jointly, (i) to file with the Securities
and Exchange Commission (the "Commission") and to execute, in the case of the
1933 Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including
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pre-effective or post-effective amendments to such Registration Statement,
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the Trust Preferred Securities of the Trust, (b) any preliminary
prospectus or prospectus supplement thereto relating to the Trust Preferred
Securities required to be filed pursuant to Rule 424 under the 1933 Act, and (c)
a Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Trust Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange or other
exchange, and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Trust Preferred Securities to be
listed on the New York Stock Exchange or such other exchange or quotation
system; (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 Trust 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, deliver and perform on
behalf of the Trust an underwriting agreement with the Depositor and the
underwriter or underwriters of the Trust Preferred Securities of the Trust. In
the event that any filing referred to in clauses (i)- (iii) above is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange or quotation system, or state securities or Blue Sky laws to be
executed on behalf of the Trust by a trustee, the Administrative 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 the Administrative Trustees, in their
capacities as trustees 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 New York Stock Exchange or
other exchange, or state securities or Blue Sky laws. In connection with all of
the foregoing, the Trustees, solely in their capacities as trustees of the
Trust, and the Depositor hereby constitute and appoint the Administrative
Trustees as the Depositor's true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to sign any and
all amendments (including all pre-effective and 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 any other documents in
connection therewith, with the Commission, 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 might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or his
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 of the Trust initially shall be four and
thereafter the number of trustees of the Trust 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 of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
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or, if not a natural person, an entity which has its principal place of business
in the State of Delaware. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty 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 (with regard to conflict of
laws principles).
[SIGNATURE PAGE FOLLOWS]
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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.
PROSPERITY BANCSHARES, INC.,
as Depositor
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Prsident
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, as Delaware Trustee
By: /s/ XXXXXX X. XXXXXX, XX.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
/s/ XXXXX XXXXXX
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XXXXX XXXXXX, as Administrative Trustee
/s/ XXXXX X. XXXXXXX
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XXXXX X. XXXXXXX, as Administrative Trustee
/s/ XXXXX XXXXXXXX
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XXXXX XXXXXXXX, as Administrative Trustee
