TRUST AGREEMENT
This TRUST AGREEMENT, dated as of May 3, 2001 (this "Trust
Agreement"), among (i) S.Y. BANCORP, INC., a Kentucky corporation (the
"Depositor"), (ii) WILMINGTON TRUST COMPANY, a Delaware banking corporation,
as trustee, and (iii) DAVID P. HEINTZMAN, KATHY C. THOMPSON and NANCY B.
DAVIS, 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
"S.Y. 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 sue 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 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-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 American Stock Exchange, Inc. or another 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
several 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, 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
David P. Heintzman, Kathy C. Thompson and Nancy B. Davis, each as Trustees
and not in their individual capacities, hereby constitutes and appoints David
P. Heintzman and Nancy B. Davis, 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 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 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.
6. The number of Trustees initially shall be five (5) 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.
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7. (a) The Trustee and its officers, directors, agents and
servants (collectively, 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
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 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 negligence or
willful misconduct with respect to such acts or omissions.
(b) 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
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, 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 of Trust, 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 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 Trust of an undertaking by or on behalf of such
Fiduciary Indemnified Persons 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 or the earlier resignation or
removal of the Fiduciary Indemnified Persons.
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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).
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first above
written.
S.Y. BANCORP, INC.,
as Depositor
By: /s/ David H. Brooks
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Name: David H. Brooks
Title: Chairman and Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Janel R. Havrilla
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Name: Janel R. Havrilla
Title: Administrative Account Manager
/s/ David P. Heintzman
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DAVID P. HEINTZMAN, as Trustee
/s/ Kathy C. Thompson
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KATHY C. THOMPSON, as Trustee
/s/ Nancy B. Davis
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NANCY B. DAVIS, as Trustee
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