Exhibit 4.4


 


TRUST AGREEMENT


 


This TRUST AGREEMENT, dated as of December 2, 2008 (this “Trust
Agreement”), among (i) S.Y. BANCORP, INC., a Kentucky corporation (the “Depositor”),
(ii) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as property
trustee and Delaware trustee, and (iii) DAVID P. HEINTZMAN, NANCY B. DAVIS
and T. CLAY STINNETT, 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 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 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 constitute its governing instrument.  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.


 


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 NASDAQ Global
Select Market 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, Nancy B. Davis and T. Clay
Stinnett, 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 Statutory 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.


 


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.


 


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 P. Heintzman

  
	
   

  	
  Name:

  	
  David P. Heintzman

  
	
   

  	
  Title:

  	
  Chairman and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON
  TRUST COMPANY,

  
	
   

  	
  as
  Property Trustee and Delaware Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joshua C. Jones

  
	
   

  	
  Name:

  	
  Joshua C. Jones

  
	
   

  	
  Title:

  	
  Financial Services Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ David P. Heintzman

  
	
   

  	
  DAVID
  P. HEINTZMAN, as Trustee

  
	
   

  	
   

  
	
   

  	
  /s/ Nancy B. Davis

  
	
   

  	
  NANCY B. DAVIS, as Trustee

  
	
   

  	
   

  
	
   

  	
  /s/ T. Clay Stinnett

  
	
   

  	
  T. CLAY STINNETT, as Trustee