EXHIBIT 4.4


 


TRUST AGREEMENT


This TRUST AGREEMENT, dated as of September 11, 2003 (this “Trust Agreement”),
among (i) Silicon Valley Bancshares, a Delaware corporation (the “Depositor”),
(ii) Wilmington Trust Company, as trustee (the “Delaware Trustee”), and
(iii) Lauren Friedman, Paulette Mehas and Donal D. Delaney, each an
individual, 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 (the “Trust”)
shall be known as “SVB Capital 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 Ten Dollars ($10.00).  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 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.  The parties
hereto hereby ratify the Trustees’ filing of a Certificate of Trust with the
Delaware Secretary of State under the name “SVB Capital II.”


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 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 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, (a) to file with the Securities and Exchange
Commission (the “Commission”)
and execute, in each case on behalf of the Trust, (i) the Registration
Statement on Form S-3, 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 (the “Securities Act”), of
the Trust Preferred Securities of the Trust and possibly certain other
securities, and any registration statement for the same offering covered by
such Registration Statement that is to be effective upon filing pursuant to
Rule 462(b) promulgated under the Securities Act (collectively, the “1933 Act Registration Statement”)
and (ii) if required, 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 Trust Preferred Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (b) to file with the Nasdaq
National Market or a 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 Trust Preferred Securities to be listed on any of the
Exchanges; (c) 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 (d) to execute on behalf of the Trust
that certain Underwriting Agreement relating to the Trust 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 (a), (b) and (c) 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 such Trustee’s 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 the Delaware Trustee 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 Lauren Friedman, Paulette Mehas and Donal D. Delaney,
each as Trustees and not in their individual capacities, hereby constitutes and
appoints Lauren Friedman, Paulette Mehas and Donal D. Delaney, and each of
them, as the Depositor’s or such Trustee’s 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 Trustee’s 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 (if required) 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 and 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
StatutoryTrust 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.


7.     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).


 


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8.     The Trust
may be dissolved and terminated before the issuance of the Trust’s Trust
Preferred Securities at the election of the Depositor.


 


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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.


 


	
   

  	
   

  	
  SILICON
  VALLEY BANCSHARES

  	
   

  	
   

  
	
   

  	
   

  	
  as
  Depositor

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Lauren
  Friedman

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Lauren
  Friedman

  	
   

  
	
   

  	
   

  	
  Title:
  

  	
  Chief
  Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WILMINGTON
  TRUST COMPANY

  	
   

  
	
   

  	
   

  	
  as
  Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Kathleen
  A. Pendelini

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Kathleen
  A. Pendelini

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Financial
  Services Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Lauren Friedman

  	
   

  
	
   

  	
   

  	
  Lauren
  Friedman, as Administrative

  	
   

  	
   

  
	
   

  	
   

  	
  Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Paulette Mehas

  	
   

  
	
   

  	
   

  	
  Paulette
  Mehas, as Administrative Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Donal D. Delaney

  	
   

  
	
   

  	
   

  	
  Donal
  D. Delaney, as Administrative

  	
   

  	
   

  
	
   

  	
   

  	
  Trustee

  	
   

  	
   

  
										



 


 


 


 


 


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