Form of Registration Rights Agreement
Form
of Registration Rights Agreement
This
Registration Rights Agreement
(this
“Agreement”)
is
made as of December [ ], 2006 between State Bancorp, Inc., a New York
corporation (the “Company”),
and
___________ (the “Investor”
and,
collectively with other Persons (as defined below) who have executed a
Subscription Agreement (as defined below), the “Investors”).
Execution
and delivery of this Agreement by the parties hereto are conditions to the
Investor purchasing Shares (as defined below) from the Company under the
Subscription Agreement (as defined below). Accordingly, the parties hereto
hereby agree as follows:
Section
1. Definitions.
Unless
the context otherwise requires, the terms defined in this Section 1 have
the meanings herein specified for all purposes of this Agreement, applicable
to
both the singular and plural forms of such terms:
“Affiliate”
shall
have the meaning under Rule 501(b) of the Securities Act of 1933, as
amended.
“Closing
Date”
has
the
meaning given in the Subscription Agreement;
provided
that if
there is more than one Closing Date pursuant to the Subscription Agreement,
this
term shall refer to the latest such Closing Date.
“Common
Stock”
means
the common stock, $5.00 par value per share, of the Company.
“Commission”
means
the Securities and Exchange Commission.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Holder”
means
the record owner of Registrable Securities.
“Person”
means
any natural person, corporation, trust, association, limited liability company,
partnership, joint venture or other entity and any government, governmental
agency, instrumentality or political subdivision.
“Prospectus”
shall
mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented
by
any prospectus supplement, including a prospectus supplement with respect
to the
terms of the offering of any portion of the Registrable Securities covered
by a
Registration Statement, and by all other amendments and supplements to a
prospectus, including post-effective amendments to the related Registration
Statement, and in each case including all documents incorporated by reference
therein.
“Register,”
“registered”
and
“registration”
refer
to a registration effected by preparing and filing a registration statement
in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
“Registrable
Securities”
shall
mean the Shares; provided,
however, that
the
Shares shall cease to be Registrable Securities upon the earlier of (1) a
Registration Statement with respect to such Shares for the resale thereof
having
been declared effective under the Securities Act and such Shares having been
disposed of pursuant to such Registration Statement, (2) such Shares having
become eligible to be sold without restriction as contemplated by Rule 144(k)
under the Securities Act by a person who is not an Affiliate of the Company,
or
(3) such Shares having ceased to be outstanding.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Shares”
means
the shares of Common Stock sold and issued to the Investors pursuant to the
Subscription Agreement.
“Subscription
Agreement”
means,
collectively, Subscription Agreements of even date herewith between the Company
and the Investor’s thereto relating to the purchase and sale of the
Shares.
Section
2. Registration.
(a) Subject
to the receipt of all necessary information from the Investors, the Company
shall use its reasonable best efforts to (i) prepare and file a “shelf”
registration statement on Form S-3 under the Securities Act covering an
offering of the Registrable Securities on a continuous basis pursuant to
Rule
415 under the Securities Act (the “Registration
Statement”),
on or
before April 1, 2007 (the “Filing
Date”),
(ii)
cause such Registration Statement to become effective as soon as practicable
after filing, but in no event later than July 1, 2007 (the “Effectiveness
Date”)
and
(iii) cause such Registration Statement to remain effective (including preparing
and filing with the Commission such amendments and supplements to such
registration statement and the prospectus contained therein as may be necessary
to keep such Registration Statement effective) until all of the Registrable
Securities covered by such Registration Statement have been sold or as otherwise
set forth in this Section 2. Notwithstanding the foregoing, if
Form S-3 is not available for use by the Company, then the Company will
file a registration statement on such form as is then available to effect
a
registration of the Registrable Securities.
(b) The
Company shall use its reasonable best efforts to maintain the effectiveness
of
the Registration Statement under the Securities Act until the earlier of:
(i) the date that is two (2) years after the Closing Date; and
(ii) the date on which all of the Registrable Securities have been sold
pursuant to the Registration Statement or no longer constitute Registrable
Securities (the “Registration
Period”).
(c) Notwithstanding
the foregoing, the Company’s obligations under Sections 2(a) and 2(b) to file a
Registration Statement, and to cause such Registration Statement to become
and
remain effective, shall be suspended, at the option of the Company, for a
total
of not more than ninety (90) days (an “Allowed
Delay”)
if the
Company determines in good faith that an event has occurred or a condition
exists that results or may result in a Misstatement (as
2
defined
in Section 11 below), provided,
however,
that
such right may not be exercised more than once in any twelve month
period.
Section
3. Registration
Procedures.
If and
whenever the Company is required by the provisions of Section 2 hereof to
effect the registration of Registrable Securities under the Securities Act,
the
Company will:
(a) If
the
offering is to be underwritten in whole or in part, enter into a customary
written underwriting agreement in form and substance reasonably satisfactory
to
the managing underwriter of the public offering, the Company and the Holders
of
a majority of the Registrable Securities participating in such
offering;
(b) Furnish
to the Holders participating in such registration and to the underwriters
of the
securities being registered such reasonable number of copies of the registration
statement and each amendment and supplement thereto, preliminary prospectus,
final prospectus and such other documents as such underwriters and Holders
may
reasonably request in order to facilitate the public offering of such
securities;
(c) At
the
request of a Holder or an underwriter, use reasonable best efforts to register
or qualify the securities covered by such registration statement under such
state securities or blue sky laws of such jurisdictions in the United States
as
such participating Holders and underwriters may reasonably request prior
to the
effectiveness of such registration statement, provided, however, that in
no
event shall the Company be obligated to (i) qualify as a foreign corporation
or
dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Section 3 or (ii) file any general consent
to service of process in any jurisdiction where it is not so
subject;
(d) Notify
the Holders participating in such registration, promptly after it receives
notice thereof, of the date and time when such registration statement and
each
post-effective amendment thereto has become effective or a supplement to
any
prospectus forming a part of such registration statement has been
filed;
(e) Notify
such Holders promptly of any request by the Commission to amend or supplement
such registration statement or prospectus or for additional
information;
(f) Prepare
and file with the Commission, promptly upon the request of the Holders of
at
least 25% of the Registrable Securities, any amendments or supplements to
such
registration statement or prospectus which, in the written opinion
of
Sidley
Austin LLP as designated counsel to the Holders or such other counsel
as
may be
appointed by the Holders of a majority of the Registrable Securities,
which
opinion shall be reasonably acceptable to counsel for the Company, is required
under the Securities Act or the rules and regulations of the Commission
thereunder in connection with the distribution of the Registrable Securities
by
such Holders;
3
(g) Prepare
and file promptly with the Commission, and promptly notify such Holders of
the
filing of, such amendments or supplements to such registration statement
or
prospectus as may be necessary to correct any statements or omissions if,
at the
time when a prospectus relating to such securities is required to be delivered
under the Securities Act, any event has occurred as the result of which any
such
prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact required
to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(h) Advise
such Holders, promptly after it receives notice or obtains knowledge thereof,
of
the issuance of any stop order by the Commission suspending the effectiveness
of
such registration statement or the initiation or threatening of any proceeding
for that purpose and promptly use its reasonable best efforts to prevent
the
issuance of any stop order or to obtain its withdrawal, rescission or removal
if
such stop order should be issued;
(i) At
the
request of (x) the managing underwriter of the public offering, if the offering
is to be underwritten in whole or in part, or (y) at the request of the Holders
of at least a majority of the Registrable Securities covered by such
registration statement, furnish to such managing underwriter, at the closing
provided for in the underwriting agreement, in the case of (x) above or to
each
Holder on the effective date of the registration statement, in the case of
(y)
above, an opinion of the counsel representing the Company for the purposes
of
such registration, dated as of the date of closing, addressed to the
underwriters, if any, and to the Holders, covering such matters with respect
to
the registration statement, the prospectus and each amendment or supplement
thereto, proceedings under state and federal securities laws, other matters
relating to the Company, the securities being registered and the offer and
sale
of such securities as are customarily the subject of opinions of issuer’s
counsel provided to underwriters in underwritten public offerings;
and
(j) Provide
a
transfer agent and registrar, which may be a single entity, for the Registrable
Securities not later than the Effectiveness Date.
Section
4. Accuracy
of Registration Statement.
Subject
to the Company’s rights under Section 2(c) and Section 11, any registration
statement (including any amendments or supplements thereto and prospectuses
contained therein) filed by the Company covering Registrable Securities will
not
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein, or necessary to make the statements therein,
in
light of the circumstances in which they were made, not misleading. Subject
to
the limitations set forth in Section 11, the Company will prepare and file
with the Commission such amendments (including post-effective amendments)
and
supplements to any registration statement and the prospectus used in connection
with the registration statement as may be necessary to permit sales pursuant
to
the registration statement at all times during the Registration Period, and,
during such period, will comply with the provisions of the Securities Act
with
respect to the disposition of all Registrable Securities of the Company covered
by any registration statement until the termination of the Registration Period,
or if earlier, until such time as all of such
4
Registrable
Securities have been disposed of in accordance with the intended methods
of
disposition by the seller or sellers thereof as set forth in the registration
statement.
Section
5. Additional
Obligations of the Company.
5.1 Review.
The
Company will permit Sidley Austin LLP,
as
designated counsel to the Holders, or such other counsel as may be appointed
by
the Holders of a majority of the Registrable Securities, to review any
registration statement covering Registrable Securities and all amendments
and
supplements thereto (as well as all requests for acceleration or effectiveness
thereof) a reasonable period of time prior to their filing with the Commission,
and will not file any document in a form to which such counsel reasonably
objects, unless otherwise required by law in the opinion of the Company’s
counsel. The sections of any such registration statement including information
with respect to the Investor, the Investor’s beneficial ownership of securities
of the Company or the Investors’ intended method of disposition of Registrable
Securities must conform to the information provided to the Company by the
Investor.
5.3 Due
Diligence.
The
Company will make available during normal business hours for inspection by
any
Investor whose Registrable Securities are being sold pursuant to a registration
statement and one firm of attorneys retained by the Investors (collectively,
the
“Inspectors”),
all
pertinent financial and other records, pertinent corporate documents and
properties of the Company (collectively, the “Records”),
as
each Inspector reasonably deems necessary to enable the Inspector to exercise
its due diligence responsibility. The Company will cause its officers, directors
and employees to supply all information that any Inspector may reasonably
request for purposes of performing such due diligence. Each Inspector will
hold
in confidence, and will not make any disclosure of, any Records or other
information that the Company determines in good faith to be confidential,
and of
which determination the Inspectors are so notified, unless: (i) the
disclosure of such Records is necessary to avoid or correct a misstatement
or
omission in any registration statement; (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court or government
body of
competent jurisdiction, or (iii) the information in such Records has been
made generally available to the public other than by disclosure in violation
of
this or any other agreement.
5
Notwithstanding
any of the foregoing, nothing herein shall obligate the Company to provide
to
any Investor, or to any advisors or representatives of any Investor, any
material nonpublic information. The Company shall not disclose material
nonpublic information to the Investors, or to advisors to or representatives
of
the Investors, unless prior to disclosure of such information the Company
identifies such information as being material nonpublic information and provides
the Investors, such advisors and representatives with the opportunity to
accept
or refuse to accept such material nonpublic information for review and any
Investor wishing to obtain such information enters into an appropriate
confidentiality agreement with the Company with respect thereto.
Section
6. Indemnification.
(a) The
Company will, and does hereby undertake to, indemnify and hold harmless each
Holder, each of its officers, directors and partners, and each person
controlling such Holder within the meaning of the Securities Act, with respect
to which registration, qualification or compliance has been effected pursuant
to
this Agreement, and each underwriter, if any, and each person who controls
any
underwriter within the meaning of the Securities Act, against all expenses,
claims, losses, damages and liabilities (or actions in respect thereof),
including settlement of any litigation, commenced or threatened (such settlement
to be made in accordance with the terms of Section 6(c) of this Agreement)
to
which they may become subject under the Securities Act, the Exchange Act,
or
other federal or state law, arising out of or based on compliance with, any
untrue statement (or alleged untrue statement) of a material fact contained
in
any registration statement, prospectus (preliminary or final), offering circular
or other document or amendments thereto, or arising out of or based on any
omission (or alleged omission) to state therein a material fact required
to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or arising out of
or any
violation by the Company of any federal, state or common law rule or regulation
applicable to the Company and relating to action or inaction required of
the
Company by such rule or regulation in connection with any such registration,
qualification or compliance, and will reimburse each such Holder, each of
its
officers, directors and partners, and each person controlling such Holder,
each
such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability
or
action; provided,
that
the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made
in
reliance upon and in conformity with written information furnished to the
Company by an instrument executed by such Holder or underwriter expressly
for
use in connection with such registration.
(b) Each
Holder will, if Registrable Securities held by such Holder are included in
the
securities as to which such registration, qualification or compliance is
being
effected, indemnify and hold harmless the Company, each of its directors
and
officers, agents and employees, each underwriter, if any, of the Company’s
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the
6
meaning
of the Securities Act, and each other such Holder, each of its officers,
directors and partners and each person controlling such Holder within the
meaning of the Securities Act, against all claims, losses, damages and
liabilities (or actions in respect thereof to which they may become subject)
arising out of or based on any untrue statement (or alleged untrue statement)
of
a material fact contained in any such registration statement, prospectus,
offering circular or other document, or amendments thereto, or any omission
(or
alleged omission) to state therein a material fact required to be stated
therein
in light of the circumstances in which they were made, or necessary to make
the
statements therein, not misleading, and will reimburse the Company, such
Holders, such directors, officers, persons, underwriters or control persons
for
any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
in
each case to the extent, but only to the extent, that such untrue statement
(or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by an instrument executed by such Holder expressly for use in connection
with such registration; provided, however, that the obligations of such Holders
hereunder shall be limited to an amount equal to the proceeds to each such
Holder of Registrable Securities from the sale of such Registrable Securities
as
contemplated herein.
(c) Each
party entitled to indemnification under this Section (the “Indemnified
Party”)
shall
give notice to the party required to provide indemnification (the “Indemnifying
Party”)
promptly after such Indemnified Party has actual knowledge of any claim as
to
which indemnity may be sought, and shall deliver written notice to the
Indemnifying Party of commencement thereof. The Indemnifying Party, at its
sole
option, may participate in or assume the defense of any such claim or any
litigation resulting therefrom with counsel reasonably satisfactory to the
Indemnified Party, and the Indemnified Party may participate in such defense
at
Indemnified Party’s expense. After notice from the Indemnifying Party to the
Indemnified Party of its election to assume the defense of such claim or
action
and engagement of such counsel, the Indemnifying Party shall not be liable
to
the Indemnified Party under this Section 6 for any legal or other expenses
subsequently incurred by the Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation. No Indemnifying Party
shall (i) without the prior written consent of the Indemnified Parties (which
consent shall not be unreasonably withheld), settle or compromise or consent
to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the Indemnified Parties are actual
or
potential parties to such claim or action) unless such settlement, compromise
or
consent includes an unconditional release of each Indemnified Party from
all
liability arising out of such claim, action, suit or proceeding and does
not
include a statement as to or an admission of fault, culpability or a failure
to
act by or on behalf of any Indemnified Party or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent
of
the Indemnifying Party or if there be a final judgment of the plaintiff in
any
such action, the Indemnifying Party agrees to indemnify and hold harmless
any
Indemnified Party
7
from
and against any loss or liability by reason of such settlement or judgment
to
the extent required by this Section 6.
(d) The
indemnification provided for under this Agreement will remain in full force
and
effect regardless of any investigation made by or on behalf of the Indemnified
Party or any officer, director or controlling person of such Indemnified
Party
and will survive the transfer of Registrable Securities. The failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section except to the extent
that such failure to give notice shall materially adversely affect the
Indemnifying Party in the defense of any such litigation. No Indemnifying
Party,
in the defense of any such claim or litigation shall, except with the consent
of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term a release from
all
liability in respect to such claim or litigation by the claimant or plaintiff
to
such Indemnified Party.
(e) If
the
indemnification provided for in subsection (a) or (b) of this Section is
held by
a court of competent jurisdiction to be unavailable to a party to be indemnified
with respect to any claims, actions, demands, losses, damages, liabilities,
costs or expenses referred to therein, then each Indemnifying Party under
any
such subsection, in lieu of indemnifying such Indemnified Party thereunder,
agrees to contribute to the amount paid or payable by such Indemnified Party
as
a result of such claims, actions, demands, losses, damages, liabilities,
costs
or expenses in such proportion as is appropriate to reflect the relative
fault
of the Indemnifying Party on the one hand and of the Indemnified Party on
the
other in connection with the statements or omissions which resulted in such
claims, actions, demands, losses, damages, liabilities, costs or expenses,
as
well as any other relevant equitable considerations. The relative fault of
the
Indemnifying Party and of the Indemnified Party will
be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Indemnifying Party
or by
the Indemnified Party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, the amount any Holder of Registrable Securities
will be obligated to contribute pursuant to this subsection will be limited
to
an amount equal to the per share public offering price (less any underwriting
discount and commissions) multiplied by the number of shares of Registrable
Securities sold by such Holder pursuant to the registration statement which
gives rise to such obligation to contribute (less the aggregate amount of
any
damages which such Holder has otherwise been required to pay in respect of
such
claim, action, demand, loss, damage, liability, cost or expense or any
substantially similar claim, action, demand, loss, damage, liability, cost
or
expense arising from the sale of such Registrable Securities). No person
guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution hereunder from any person
who
was not guilty of such fraudulent misrepresentation.
Section
7. Reporting
Requirements Under Exchange Act.
The
Company will maintain the effectiveness of its registration of Common Stock
under Section 12 of the
8
Exchange
Act and timely file (whether or not it is then required to do so) such
information, documents and reports as the Commission may require or prescribe
under Section 15(d) of the Exchange Act. The Company will, forthwith upon
written request, furnish to any Holder of Registrable Securities a written
statement by the Company, if true, that it has complied with such reporting
requirements. In addition, the Company will take such other measures and
file
such other information, documents and reports, as may be required of it
hereafter by the Commission as a condition to the availability of Rule 144
under the Securities Act (or any similar exemptive provision hereafter in
effect).
Section
8. Participation
in an Underwritten Registration.
No
Holder may participate in an underwritten registration hereunder unless such
Holder (a) agrees to sell such Holder’s Registrable Securities on the basis
provided in the underwriting arrangement approved in accordance with the
provisions of Section 3(a) of this Agreement and (b) completes and executes
all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under
the
terms of such underwriting arrangements.
Section
9. Selection
of Underwriters.
The
Holders of Registrable Securities covered by the Registration Statement who
desire to do so may sell the Shares covered by such Registration in an
underwritten offering. In any such underwritten offering, the underwriter
or
underwriters and manager or managers that will administer the offering will
be
selected by the Holders of a majority in aggregate principal amount of the
Registrable Securities included in such offering; provided, however, that
such
underwriters and managers must be reasonably satisfactory to the
Company.
Section
10. Holder
Information.
(a) The
rights of each Holder of Registrable Securities to participate in any
registration to be effected pursuant to this Agreement is subject to such
Holder
furnishing the Company with such information with respect to such Holder
and the
distribution of such Registrable Securities as the Company may from time
to time
reasonably request and as may be required by law or by the Commission in
connection therewith, and each Holder of Registrable Securities as to which
any
registration is to be effected pursuant to this Agreement shall furnish the
Company with such information by a written instrument executed by such
Holder.
(b) Each
selling Holder shall promptly advise the Company in writing if changes in
the
Registration Statement or the Prospectus are required in order that disclosures
made in the Registration Statement or Prospectus based upon written information
previously provided or approved by the selling Holder for use in the
Registration Statement and Prospectus, will not, in the case of the Registration
Statement, contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will not, in the case of the Prospectus, include
an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading.
9
Section
11. Suspension
of Sales.
Upon
receipt of written notice from the Company that a registration statement
or
prospectus contains an untrue statement of a material fact or omits to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading (a “Misstatement”),
each
Holder of Registrable Securities shall forthwith discontinue disposition
of
Registrable Securities until such Holder has received copies of the supplemented
or amended prospectus that corrects such Misstatement, or until such Holder
is
advised in writing by the Company that the use of the prospectus may be resumed,
and, if so directed by the Company, such Holder shall deliver to the Company
(at
the Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
Section
12. Forms.
All
references in this Agreement to particular forms of registration statements
are
intended to include, and will be deemed to include, references to all successor
forms which are intended to replace, or to apply to similar transactions
as, the
forms herein referenced.
Section
13. Miscellaneous.
13.1 Waivers
and Amendments.
With
the written consent of the Holders of a majority of the Registrable Securities
then outstanding, the obligations of the Company and the rights of the Holders
under this Agreement may be waived (either generally or in a particular
instance, either retroactively or prospectively and either for a specified
period of time or indefinitely), and with the same consent the Company may
enter
into a supplementary agreement for the purpose of adding any provisions to
or
changing in any manner or eliminating any of the provisions of this Agreement
or
of any supplemental agreement or modifying in any manner the rights and
obligations hereunder of the
Holders and the Company;
provided, however,
that no
such waiver or supplemental agreement may reduce the aforesaid proportion
of
Registrable Securities, the Holders of which are required to consent to any
waiver or supplemental agreement, without the consent of the Holders of all
the
Registrable Securities; and
provided further, and
notwithstanding any provision herein to the contrary, that any such waiver
amendment or supplement that applies only to a particular registration shall
require only the written consent of the Holders of a majority of the Registrable
Securities included in such registration. Upon the effectuation of each such
waiver, consent or agreement of amendment or modification, the Company will
give
prompt written notice thereof to the Holders of the Registrable Securities
who
have not previously consented thereto in writing. Neither this Agreement
nor any
provision hereof may be changed, waived, discharged or terminated orally
or by
course of dealing, except by a statement in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought,
except to the extent provided in this Section 13.1. Specifically, but
without limiting the generality of the foregoing, the failure of any Investor
at
any time or times to require performance of any provision hereof by the Company
will not affect the right of any Investor at a later time to enforce the
same.
No waiver by any party of the breach of any term or provision contained in
this
Agreement, in any one or more instances, will be deemed to be, or
10
construed
as, a further or continuing waiver of any such breach, or a waiver of the
breach
of any other term or covenant contained in this Agreement.
13.2 Effect
of Waiver or Amendment.
The
Investor acknowledges that by operation of Section 13.1 the Holders of a
majority of the Registrable Securities will, subject to the limitations
contained in Section 13.1, have the right and power to diminish or
eliminate certain rights of such Investor under this Agreement.
13.3 Rights
of Investors Inter Se.
The
Investor has the absolute right to exercise or refrain from exercising any
right
or rights which the Investor may have by reason of this Agreement or any
Registrable Security, including, without limitation, the right to consent
to the
waiver of any obligation of the Company under this Agreement and to enter
into
an agreement with the Company for the purpose of modifying this Agreement
or any
agreement effecting any such modification, and the Investor will not incur
any
liability to any other Investor or Investors with respect to exercising or
refraining from exercising any such right or rights.
13.4 Notices.
All
notices, requests, consents and other communications required or permitted
hereunder will be in writing and will be delivered, or mailed first class
postage prepaid, registered or certified mail,
(a) If
to the
Investor, addressed to the Investor at its address shown on Annex A hereto,
or
at such other address as the Investor may specify by written notice to the
Company; or
(b) If
to the
Company, at 000 Xxxxxxxx Xxxxxx, Xxx Xxxx Xxxx, XX, 00000-0000, Attention:
Xxxxxx X. X’Xxxxx, President and Chief Operating Officer, or at such other
address as the Company may specify by written notice to the
Investors;
and
each
such notice, request, consent and other communication will for all purposes
of
this Agreement be treated as being effective or having been given when
delivered, if delivered personally, or, if sent by mail, at the earlier of
its
actual receipt or three (3) days after the same has been deposited in a
regularly maintained receptacle for the deposit of United States mail, addressed
and postage prepaid as aforesaid.
13.5 Severability.
If any
one or more of the provisions of this Agreement or of any agreement entered
into
pursuant to this Agreement is determined to be illegal or unenforceable,
it is
the intention of the parties hereto that all other provisions of this Agreement
and of each other agreement entered into pursuant to this Agreement should
be
given effect separately from the provision or provisions determined to be
illegal or unenforceable and not be affected thereby.
13.6 Parties
in Interest.
All the
terms and provisions of this Agreement will be binding upon and inure to
the
benefit of and be enforceable by the respective successors and assigns of
the
parties hereto, whether so expressed or not and, in particular, will inure
to
the
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benefit
of and be enforceable by the Holder or Holders at the time of any registration
of Registrable Securities. Subject to the immediately preceding sentence,
this
Agreement will not run to the benefit of or be enforceable by any Person
other
than a party to this Agreement and its successors and assigns.
13.7 Headings.
The
headings of the sections, subsections and paragraphs of this Agreement have
been
inserted for convenience of reference only and do not constitute a part of
this
Agreement.
13.8 Entire
Agreement.
This
Agreement constitutes the entire understanding of the parties hereto and
supersedes all prior understanding among such parties.
13.9 Governing
Law; Jurisdiction.
(a) This
Agreement and any and all matters related to or arising under this Agreement
shall be governed by and construed in accordance with the laws of the State
of
New York without regard to conflict of law principles of said jurisdiction
other
than Section 5-1401 of the New York General Obligations Law.
(b) The
Company and the Holders hereby irrevocably submit to the exclusive jurisdiction
of the federal and New York state courts located in the city of New York
in
connection with any suit, action or proceeding related to this Agreement
or any
of the matters contemplated hereby, irrevocably waives any defense of lack
of
personal jurisdiction and irrevocably agrees that all claims in respect of
any
suit, action or proceeding may be heard and determined in any such courts.
The
Company and the Holders irrevocably waive, to the fullest extent it may
effectively do so under applicable law, any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient
forum.
13.10 Counterparts.
This
Agreement may be executed in any number of counterparts and by different
parties
hereto in separate counterparts, with the same effect as if all parties had
signed the same document. All such counterparts will be deemed an original,
will
be construed together and will constitute one and the same
instrument.
13.11 Assignment
of Registration Rights.
The
rights of the Investor hereunder, including the right to have the Company
register Registrable Securities pursuant to this Agreement, will be
automatically assigned by the Investor to transferees or assignees of all or any
portion of the Registrable Securities, but only if: (a) the Investor agrees
in writing with the transferee or assignee to assign such rights, and a copy
of
such agreement is furnished to the Company within a reasonable time after
such
assignment; (b) the Company is, within a reasonable time after such transfer
or
assignment, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being transferred or assigned; (c) after such
transfer or assignment the further disposition of such securities by the
transferee or assignee is restricted under the
12
Securities
Act and applicable state securities laws; (d) at or before the time the
Company received the written notice contemplated by clause (b) of this
sentence, the transferee or assignee agrees in writing with the Company to
be
bound by all of the provisions contained herein and (e) such transfer shall
have
been made in accordance with the applicable requirements of the Subscription
Agreement.
(Signature
page follows)
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In
Witness Whereof,
each of
the parties hereto has caused this Agreement to be executed personally or
by a
duly authorized representative thereof as of the day and year first above
written.
|
STATE
BANCORP, INC.
By:
Name:
Title:
|
_______________________________________________
Printed
Name of Investor
By:
Name:
Title:
|
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