EXHIBIT 4.4
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TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of January 7, 2002 (this "Trust Agreement"),
is made and entered into among COMMUNITY TRUST BANCORP, INC., a Kentucky
corporation (the "Depositor"), FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
a national banking association, as trustee (the "Delaware Trustee"), and Jean R.
Hale, Mark A. Gooch and William Hickman III, each an individual, as trustees
(each of such trustees and the Delaware Trustee, 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 "CTBI
Preferred Capital Trust II" 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 depositor 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 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 the American Stock Exchange or any other
Exchange; (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, the American Stock Exchange or any
other 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 First Union Trust
Company, National Association 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 Jean R. Hale, Mark A. Gooch and
William Hickman III, each as Trustees and not in their individual capacities,
hereby constitutes and appoints Jean R. Hale and William Hickman III, 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, any 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 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. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
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7. (a) The Trustees and their 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 gross 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, 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 (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.
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
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.
COMMUNITY TRUST BANCORP, INC.,
as Depositor
By: /s/ Jean R. Hale
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Name: Jean R. Hale
Title: Vice Chairman, President and Chief
Executive Officer
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Edward L. Truitt, Jr.
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Name: Edward L. Truitt, Jr.
Title: Vice President
/s/ Jean R. Hale
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JEAN R. HALE, as Trustee
/s/ Mark A. Gooch
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MARK A. GOOCH, as Trustee
/s/ William Hickman, III
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WILLIAM HICKMAN III, as Trustee
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