EXHIBIT 4.4
SOUTHERN COMMUNITY CAPITAL TRUST II
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of September __ 2003, is among (i)
SOUTHERN COMMUNITY FINANCIAL CORPORATION, a North Carolina corporation, as
depositor (the "Depositor"), (ii) WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as property trustee (the "Property Trustee"), and as Delaware
trustee (the "Delaware Trustee"), and (iii) F. Xxxxx Xxxxx, Xxxxxxx Xxxx and
Xxxx X. Xxxxx, each individual, as administrative trustees (the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the Administrative
Trustees being collectively referred to as the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Southern Community Capital Trust II"
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Administrative Trustees the sum of $10.00. The Administrative Trustees
hereby acknowledges 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.
3. It is the intention of the parties hereto that the Trust
created hereby constitute a statutory trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801 et seq. (the "Statutory Trust Act"), and
that this document constitutes the governing instrument of the Trust.
4. 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 Statutory Trust Act in the form attached hereto as
Exhibit A.
5. 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 (collectively, the "Trust Securities"). 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 of any licenses,
consents or approvals required by applicable law or otherwise.
6. 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, (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-2 (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 (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 New York Stock Exchange or any other national stock exchange or The
Nasdaq National Market (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 Underwriter named therein, substantially in the form
included as an exhibit to the 1933 Act Registration Statement.
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 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 shall, from time to time, prior to the final disposition of such
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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 the preceding 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. 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, who may increase
or decrease the number of Trustees; provided, however, that, to the extent
required by the Statutory Trust Act, one Trustee shall either be a natural
person who is a resident 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 written notice to the
Depositor.
9. 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).
10. This Trust Agreement may be executed in one or more
counterparts.
11. The Trust may terminate without issuing any Trust Securities
at the election of the Depositor.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have caused this Trust Agreement to be duly executed as of the date first
written above.
SOUTHERN COMMUNITY FINANCIAL CORPORATION,
as Depositor
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
WILMINGTON TRUST COMPANY,
as Property Trustee and as Delaware Trustee
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
_____________________________________________
F. Xxxxx Xxxxx, as Administrative Trustee
_____________________________________________
Xxxxxxx Xxxx, as Administrative Trustee
_____________________________________________
Xxxx X. Xxxxx, as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
OF
SOUTHERN COMMUNITY CAPITAL TRUST II
THIS Certificate of Trust of Southern Community Capital Trust
II (the "Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustees, to form a statutory trust under the Delaware Statutory
Trust Act (12 Del.C. Section 3801, et seq.) (the "Act").
1. Name. The name of the statutory trust formed by this
Certificate of Trust is Southern Community Capital Trust II.
2. Delaware Trustee. The name and business address of
the trustee of the Trust in the State of Delaware are Wilmington Trust Company,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attn: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be
effective upon filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust in accordance with Section
3811(a) of the Act.
WILMINGTON TRUST COMPANY, as Property
Trustee and as Delaware Trustee
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
_____________________________________________
F. Xxxxx Xxxxx, as Administrative Trustee
_____________________________________________
Xxxxxxx Xxxx, as Administrative Trustee
_____________________________________________
Xxxx X. Xxxxx, as Administrative Trustee
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