Contract
For
STATE
BANCORP, INC.,
A
NEW YORK CORPORATION
COMMON
STOCK, PAR VALUE $5.00
THE
COMMON STOCK (“COMMON STOCK” OR “SHARES”) REFERRED TO HEREIN HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“1933 ACT”), AND IS
BEING OFFERED AND SOLD IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT. THE OFFERING OF SHARES HAS NOT BEEN REVIEWED
OR
APPROVED BY ANY FEDERAL OR STATE REGULATORY AUTHORITIES AND IS NOT REGISTERED
UNDER APPLICABLE FEDERAL OR STATE SECURITIES LAWS.
A
PURCHASER OF THE SHARES MUST BE PREPARED TO BEAR THE ECONOMIC RISKS OF THE
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME BECAUSE THE SHARES HAVE NOT BEEN
REGISTERED UNDER THE 1933 ACT AND ARE RESTRICTED AS TO
TRANSFERABILITY.
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Page
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1.
Subscription
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3
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2.
Acceptance
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3
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3.
Payment
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3
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4.
Representations and Warranties
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4
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5.
Transferability
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6
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6.
Regulation D
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7.
Survival of Representations
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8.
Indemnification
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7
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9.
Certificate of U.S. Residence and Substitute Form W-9.
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7
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10.
Miscellaneous.
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8
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11.
Understandings of the Subscriber
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9
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12.
Binding Agreement
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13.
Severability
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14.
Incorporation by Reference
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15.
Irrevocable Offer to Xxxxxxxx
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00.
Confidentiality
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17.
Summary of Documents Being Tendered and Payment of Subscription
Price.
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18.
Governing Law; Jurisdiction
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12
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19.
Xxxxxxxxxxxx
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Entire Agreement
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2
FOR
COMMON STOCK OF
STATE
BANCORP, INC.
A
NEW YORK CORPORATION
This
Subscription Agreement, dated December [ ], 2006, is made by and between
State
Bancorp, Inc., a New York corporation (the “Company”) and the Subscriber listed
in Annex A hereto (“Subscriber”) who is subscribing hereby for shares of Common
Stock of the Company (“Common Stock” or “Shares”) distributed to a limited
number of qualified persons in connection with the offering of such Shares
(the
“Offering”).
In
consideration of the Company’s agreement to accept Subscriber as a security
holder of the Company upon the terms and conditions set forth herein and
as
further set forth in the Preliminary Private Placement Memorandum dated
December [ ], 2006 (the “Memorandum”)
provided to Subscriber, the undersigned agrees and represents as
follows:
1.
Subscription.
The
Subscriber hereby irrevocably subscribes to purchase the amount of Shares
indicated on the signature page hereof for a period of 30 days from the date
of
this Subscription Agreement in accordance with the terms of this Subscription
Agreement.
2.
Acceptance.
This
Subscription Agreement sets forth various representations, warranties, covenants
and agreements of the Company and the Subscriber, as the case may be, all
of
which shall be deemed to be made, and shall be effective without further
action
by the Company or the Subscriber, immediately upon the Company’s acceptance of
this subscription and shall thereupon be binding upon the Company and the
Subscriber. Acceptance is evidenced only by execution of the Subscription
Agreement by the Company in the space provided at the end of the Subscription
Agreement and the Company shall have no obligation hereunder until the Company
shall have executed and delivered to the Subscriber an executed copy of this
Subscription Agreement. The Subscriber acknowledges and agrees that the Company,
in its sole discretion, reserves the right to accept or reject this or any
other
subscription, in whole or in part.
3.
Payment.
On or
prior to the date established by the Company for the closing of the sale
of the
shares of Common Stock provided hereby (the “Closing”), which shall not be later
than December __, 2006 (the “Closing Date”), the Subscriber acknowledges that
the Memorandum speaks only as of the date on the cover of the Memorandum
and
that the information contained or incorporated by reference in the Memorandum
may not be correct or complete as of any time subsequent to that date. Prior
to
the Closing, the undersigned will pay and deliver to Wilmington Trust Company,
the Company’s escrow agent, the amount set forth on the signature page below, in
the form of a check or wire transfer (the “Payment”) payable to “Wilmington
Trust Company, as escrow agent for State Bancorp, Inc.” The Company will deliver
to the Subscriber a certificate representing the total number of shares of
Common Stock purchased by the Subscriber on the Closing Date. If the Closing
does not occur within 30 days of the date of this agreement, the Company
shall
instruct its escrow agent to promptly return the payment to the Subscriber
upon
the expiration of such 30 day period.
3
4.
Representations
and Warranties.
The
Subscriber hereby makes the following representations and warranties to the
Company and Sandler X’Xxxxx & Partners, L.P., the Company’s placement agent
(the “Placement Agent”):
a. The
Subscriber is the sole and true party in interest and is not purchasing for
the
benefit of any other person.
b. The
Subscriber has received the Memorandum describing the offering of Shares,
has
read the Memorandum carefully, is fully familiar with and understands the
contents thereof, particularly the “Risk Factors” section included or
incorporated by reference therein, and has received no other written
communication relating to the offering from the Company or the Placement
Agent.
c. The
Subscriber confirms that no representations or warranties have been made
to the
Subscriber other than those contained in the Memorandum, and that the Subscriber
has not relied upon any representation or warranty not contained in the
Memorandum.
d. The
Subscriber is an “accredited investor” as such term is defined in Regulation D
promulgated under the Securities Act of 1933, as amended (the “1933 Act”) by
reason of at least one of the categories the Subscriber has checked on Annex
B
attached hereto, has the ability to bear the risks of an investment in the
Company for an indefinite period and is suitable to be an investor in a private
offering.
e. The
Company has answered all inquiries raised by the Subscriber or its
representatives. The Subscriber has had access to all additional information
necessary to verify the accuracy of the information set forth in the Memorandum,
and the Subscriber has taken all the steps necessary to evaluate the merits
and
risks of an investment as proposed hereby. No person or other entity other
than
the Company or its authorized representatives has offered the Shares to the
Subscriber.
f. The
offer
to sell the Shares was directly communicated to the Subscriber in such a
manner
that the undersigned was able to ask questions of and receive answers from
the
Company or the Placement Agent concerning the
terms
and conditions of this offering. At no time was the Subscriber presented
with or
solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or general
advertising.
g. The
Subscriber is aware that an investment in the Company is highly speculative
and
subject to substantial risks, including the loss of the Subscriber’s entire
amount invested in the Company. The undersigned is capable of bearing the
high
degree of economic risk and burdens of this investment, including, but not
limited to, the possibility of a complete loss and the absence of a public
market and the restrictions on transferability of the Shares, which may make
the
liquidation of this investment impossible for an indefinite period.
h. The
Subscriber understands (i) that the Shares subscribed for hereby have not
been
registered under the 1933 Act and are being offered in reliance upon an
exemption therefrom for a non-public offering and that the Company’s reliance on
such exemption is based in part upon the representations, warranties and
agreements of the Subscriber contained in this Subscription Agreement; (ii)
that
the Shares must be held indefinitely unless the sale thereof is
4
registered
under the 1933 Act, or, in the opinion of counsel acceptable to the Company,
an
exemption for such registration is available; and (iii) that the sale or
transfer of the Shares must comply with the securities laws of the jurisdictions
applicable to that transaction and, in each case, in compliance with the
restrictions on transfer set forth in this Subscription Agreement and in
the
Memorandum.
i. The
Subscriber understands (i) that the Shares have not been registered or qualified
with or reviewed by any state securities administrator or other regulatory
authority and (ii) that the Shares may not be transferred without registering
them under applicable state securities laws unless the transfer is exempt
from
such registration.
j. The
Shares are being purchased solely for the Subscriber’s own account for
investment purposes and not for the account of any other person, nor with
a view
to distribution in violation of the 1933 Act, and no other person has a direct
or indirect beneficial interest in the Shares.
k. The
Subscriber understands that without the prior written consent of the Board
of
Directors of the Company, until such time as any and all material non-public
information contained in the Memorandum has been disclosed publicly or until
such time as the information contained in the Memorandum is no longer considered
material, neither the Subscriber nor any of its affiliates (as such term
is
defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended),
acting alone or as part of a group, will: (a) acquire, propose, or offer
to
acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,
any securities or direct or indirect rights to acquire any securities of
the
Company, or (b) sell any securities of the Company.
l. All
information that the Subscriber has provided to the Company concerning the
Subscriber in this Subscription Agreement is correct and complete as of the
date
set forth on the signature page hereof; and if there should be any adverse
change in such information prior to
the
acceptance of this subscription, the Subscriber will immediately provide
the
Company with such corrected information.
m. The
Subscriber has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of the prospective
investment in the Shares.
n. If
this
Subscription Agreement is executed and delivered on behalf of a partnership,
corporation, trust, or estate: (i) the undersigned has been duly authorized
and
is duly qualified to execute and deliver this Subscription Agreement and
all
other instruments executed and
delivered on behalf of such partnership, corporation, trust or estate in
connection with the
purchase of the Shares; (ii) the signature of the undersigned is binding
upon
such partnership, corporation, trust or estate; (iii) such entity has not
been
formed for the specific purpose of acquiring the Shares; (iv) the partnership,
corporation, trust, or estate is duly authorized to purchase and hold such
Shares; and (v) the partnership, corporation, trust, or estate has its principal
place of business at the address set forth on the signature page.
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o. If
the
Subscriber is not a natural person, the Subscriber is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation or other formation.
p. The
Subscriber has all requisite power and authority (including, if the Subscriber
is not a natural person, full corporate or other entity power and authority,
or,
if the Subscriber is a natural person, full legal capacity) to execute and
deliver this Subscription Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Subscription Agreement
by the Subscriber and the consummation by it of the transactions contemplated
hereby have been duly authorized by all necessary action, and no further
consent
or authorization of the Subscriber, or its Board of Directors, stockholders,
beneficiaries or others, is required. This Subscription Agreement, when executed
and delivered by the Subscriber, will constitute a legal, valid and binding
obligation of the Subscriber enforceable against the Subscriber in accordance
with its terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and other
laws
affecting creditors’ rights generally and general principles of
equity).
q. Either
(i) no part of the assets to be used to purchase the Shares constitutes assets
of any employee benefit plan (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”)) that is subject to
Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as
amended (the “Code”), or (ii) part of the assets to be used to purchase the
Shares constitute assets of one or more employee benefit plans subject to
Title
I of ERISA or Section 4975 of the Code and the purchase and holding of such
Shares is exempt from the prohibited transaction rules of Section 4975 of
the
Code and Section 406 of ERISA or the purchase and holding of such Shares
would
not result in such a prohibited transaction.
r. The
Subscriber acknowledges that the Company has given no legal, tax, accounting
or
business advice regarding the consequences of an investment in the Shares
by the
Subscriber, that the consequences to the Subscriber of such an investment
depend
on the Subscriber’s individual circumstances and that the Subscriber has
consulted the Subscriber’s own legal, tax, accounting and financial advisors
with respect to such matters.
s. The
Subscriber has not distributed any information relating to this investment
to
any other person.
5.
Transferability.
The
Subscriber agrees not to transfer or assign the obligations or duties contained
in this Subscription Agreement or any of the Subscriber’s interest
herein.
6.
Regulation
D.
Notwithstanding anything herein to the contrary, every person or entity who,
in
addition to or in lieu of the Subscriber, is deemed to be a “purchaser” pursuant
to Regulation D promulgated under the 1933 Act or any state law does hereby
make
and join in making all of the covenants, representations and warranties made
by
the Subscriber.
7.
Survival
of Representations.
The
foregoing representations and warranties are true and accurate as of the
date
hereof, shall be true and accurate as of the date of the acceptance hereof
by
the Company and shall survive thereafter. If such representations and warranties
shall
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not
be
true and accurate in any respect, the undersigned will, prior to such
acceptance, give written notice of such fact to the Company specifying which
representations and warranties are not true and accurate and the reasons
therefor.
8.
Indemnification.
The
Subscriber agrees to indemnify and hold harmless the Company and the Placement
Agent, and their affiliates, directors, controlling persons, agents, attorneys,
accountants and employees, from and against all damages, losses, costs and
expenses (including reasonable attorneys’ fees) that they may incur by reason of
the Subscriber’s failure to fulfill any of the terms or conditions of this
Subscription Agreement, or by reason of any breach of the representations
and
warranties made by the Subscriber herein or in any document provided by the
Subscriber to the Company or the Placement Agent by reason of or arising
from
any actual or alleged misrepresentation or misstatement of facts or omission
to
represent or state facts made by the undersigned to the Company or the Placement
Agent concerning the Subscriber or the person signing this Subscription
Agreement on behalf of the Subscriber or the financial position of the
Subscriber in connection with the offering or sale of the Shares which is
not
remedied by timely notice to the Company and the Placement Agent. The Subscriber
further hereby agrees to indemnify the management of the Company and the
Placement Agent and to hold the Company and the Placement Agent harmless
from
and against liability, damage, cost or expense incurred on any and all account
of or arising out of:
a. Any
inaccuracy in the declarations, representations and warranties herein above
set
forth;
b. Any
breach in the agreements of the Subscriber herein above set forth;
c. The
disposition of any Common Stock of the Subscriber, contrary to the foregoing
declarations, representations, warranties and agreements;
d. Any
action, suit or proceeding based upon:
(1) the
claim
that said declarations, representations or warranties were inaccurate or
misleading or that said agreements were breached or otherwise cause for
obtaining damages or redress from the Company or the Placement Agent;
or
(2) the
disposition of any of the Common Stock or any part thereof.
9.
Certificate
of U.S. Residence and Substitute Form W-9.
To
prevent backup withholding on any Shares sold to such Subscriber pursuant
to the
Offering, the Subscriber is required to provide the Company with (i) the
Subscriber’s correct Taxpayer Identification Number (“TIN”), certifying that the
TIN provided on the Substitute Form W-9, attached hereto as Annex C, is correct
(or that such Subscriber is awaiting a TIN) and that (A) such Subscriber
is
exempt from backup withholding, (B) the Subscriber has not been notified
by the
IRS that the Subscriber is subject to backup withholding as a result of failure
to report all interest or dividends or (C) the IRS has notified the Subscriber
that the Subscriber is no longer subject to backup withholding, and (ii)
if
applicable, an adequate basis for exemption. In order to provide a basis
for the
Company to determine that withholding of tax will not be required with respect
to the Subscriber’s purchase of the Shares and future distributions on the
Common Stock owned by the Subscriber, the Subscriber certifies the
following:
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a. The
Subscriber is not a non-resident alien for purposes of U.S. income taxation,
nor
is the Subscriber a foreign corporation, foreign partnership, foreign trust
or
foreign estate (as those terms are defined in the Code and the rules and
regulations promulgated thereunder) or a nominee for any of the
foregoing.
b. The
Subscriber’s U.S. taxpayer identification number or social security number is
set forth on the signature page to this Subscription Agreement.
c. The
Subscriber’s home (for individual) or office (for an entity) address is as set
forth on the signature page to this Subscription Agreement.
d. The
Subscriber hereby agrees to notify the Company within sixty (60) days of
the
date on which the Subscriber becomes a nonresident alien individual, or foreign
person or a nominee for a nonresident alien or foreign person. The Subscriber
understands that this certification may be disclosed to the Internal Revenue
Service by the Company and that any false statement contained herein could
be
punished by fine, imprisonment, or both.
e. The
Subscriber is not subject to backup withholding because: (1) the Subscriber
is
exempt from backup withholding, or (2) the Subscriber has not been notified
by
the Internal Revenue Service that the Subscriber is subject to backup
withholding as a result of a failure to report all interest or dividends,
or (3)
the Internal Revenue Service has notified the Subscriber that the Subscriber
is
no longer subject to backup withholding. (You must cross out this subparagraph
(e) if you have been notified by the Internal Revenue Service that you are
currently subject to backup withholding because of under reporting interest
or
dividends on your tax return).
Under
penalties of perjury, the Subscriber declares that the Subscriber has examined
this certification and, to the best of the Subscriber’s knowledge and belief, it
is true, correct and complete.
10.
Miscellaneous.
a. The
Subscriber agrees (i) that the Subscriber may not cancel, terminate or revoke
this Subscription Agreement or any agreement of the Subscriber made hereunder
provided,
however,
that
the Subscriber’s offer contained in this Subscription Agreement shall be deemed
to be revoked on the 30th
day
after
the
later to occur of (x) the date the Payment is received in accordance with
Section 3 of this Subscription Agreement or (y) the date hereof, in each
case,
if
by
such date the Company
has not accepted the Subscriber’s offer to purchase the Common Stock in
accordance with the terms of this Agreement
and (ii)
that if the Subscriber is more than one person, the obligations of the
Subscriber will be joint and several;
b. Notwithstanding
any of the representations, warranties, acknowledgments or agreements made
herein by the Subscriber, the Subscriber does not hereby or in any other
manner
waive any rights granted to the Subscriber under federal or state securities
laws;
c. Within
five days after receipt of a written request from the Company, the Subscriber
agrees to provide, insofar as it related to the Subscriber’s investment in the
Shares,
8
such
information and to execute and deliver such documents as reasonably may be
necessary to comply with any and all laws, regulations and ordinances to
which
the Company is subject; and
d. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if sent by registered or certified mail, postage prepaid,
return receipt requested, and if to the Company, to 000 Xxxxxxxx Xxxxxx,
Xxx
Xxxx Xxxx, XX, 00000-0000, Attention Xxxxxx X. X’Xxxxx, President and Chief
Operating Officer, and if to the Subscriber, at the address set forth following
its signature to this Subscription Agreement, or to such other address as
either
the Company or Subscriber shall designate to the other by notice in
writing.
11.
Understandings
of the Subscriber.
The
Subscriber acknowledges, understands and agrees that:
a. The
Company reserves the right to reject all or any part of this subscription
in its
sole and absolute discretion;
b. The
Company in its sole and absolute discretion may determine whether or not
to
accept any subscriptions from Individual Retirement Accounts;
c. The
Subscriber will be promptly notified by the Company whether this subscription
has been accepted, either in whole or in part, and, if so, the Closing Date
therefor, and if not accepted in whole, agrees to accept the return of a
proportionate part of the funds tendered to the Company as a refund or a
return,
and in either case without interest or deduction;
d. The
Common Stock shall not be deemed issued to or owned by the Subscriber until
the
Company shall issue in the name of the Subscriber a certificate evidencing
ownership of the Common Stock;
e. The
certificate or certificates evidencing any Common Stock shall bear the following
or a substantially similar legend and such other legends as may be required
by
state blue sky laws:
THE
COMMON STOCK REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THE COMMON STOCK NOR ANY INTEREST
OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE
HOLDER OF THIS COMMON STOCK CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THE COMMON STOCK, PRIOR TO THE DATE (THE
“RESALE RESTRICTION TERMINATION
9
DATE”)
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND
THE
LAST DATE ON WHICH STATE BANCORP, INC. (THE “COMPANY”) OR ANY “AFFILIATE” OF THE
COMPANY WAS THE OWNER OF THE COMMON STOCK ONLY (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
COMMON STOCK FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE
IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(D)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO A DULY COMPLETED STOCK POWER AND THE
RIGHT
OF THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(C)
OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO IT. SUCH HOLDER FURTHER AGREES THAT IT
WILL
DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
f. In
order
to ensure compliance with the restrictions referred to herein, the Company
may
issue appropriate “stop transfer” instructions to its transfer agent, if any,
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records; and
g. The
Company shall not be required (i) to transfer on its books any Common Stock
that
has been purportedly sold or otherwise transferred in violation of any of
the
provisions of this Subscription Agreement or (ii) to treat as owner of such
Common Stock or to accord the right to vote or pay dividends to any purchaser
or
other transferee to whom such Common Stock purportedly shall have been so
transferred.
12.
Binding
Agreement.
The
Subscriber agrees that it may not cancel, terminate or revoke this Subscription
Agreement or any agreement of the undersigned made hereunder, provided, however,
that the Subscriber’s offer contained in this Subscription Agreement shall be
deemed revoked on the 30th
day
after the later to occur of (x) the date the Payment is received in accordance
with Section 3 of this Subscription Agreement or (y) the date hereof, in
each
case, if by such date the Company has not accepted the Subscriber’s offer to
purchase the Common Stock in accordance with the terms of this Agreement
and
that this Subscription Agreement shall
10
survive
the death or disability of the undersigned and shall be binding upon the
heirs,
successors, assigns, executors, administrators, guardians, conservators or
personal representatives of the undersigned.
13.
Severability.
If any
provision of this Subscription Agreement or any part hereof or the application
hereof to any person or circumstance shall be finally determined by a court
of
competent jurisdiction to be invalid or unenforceable to any extent, the
remainder of this Subscription Agreement, or the remainder of such provision
or
the application of such provision to persons or circumstances other than
those
as to which it has been held invalid or unenforceable, shall not be affected
thereby and each provision of this Subscription Agreement shall remain in
full
force and effect to the fullest extent permitted by law. The parties also
agree
that if any portion of this Subscription Agreement, or any part hereof or
application hereof, to any person or circumstance shall be finally determined
by
a court of competent jurisdiction to be invalid or unenforceable to any extent,
then such objectionable provision shall be deemed modified to the extent
necessary so as to make it valid, reasonable and enforceable.
14.
Incorporation
by Reference.
The
statement of the number of Shares subscribed for and related information
set
forth on the signature page hereof are incorporated as integral terms of
this
Subscription Agreement.
15.
Irrevocable
Offer to Purchase.
Execution and delivery of this Subscription Agreement and tender of the payment
in accordance with Paragraph 3 above shall constitute an irrevocable offer
to
purchase the Common Stock indicated for a period of 30 days from the date
of
this Subscription Agreement in accordance with the terms of this Subscription
Agreement, which offer may be accepted or rejected by the Company in its
sole
and absolute discretion for any cause or for no cause. Acceptance of this
offer
by the Company shall be indicated by the execution hereof by an authorized
officer of the Company.
16.
Confidentiality.
The
Subscriber agrees that it will keep confidential and will not disclose or
divulge any confidential, proprietary or secret information that it may obtain
from financial statements or other material submitted by the Company to the
Subscriber pursuant to this Subscription Agreement. Notwithstanding the
foregoing, a Subscriber may disclose such information (i) as has become
generally available to the public, (ii) as may be required in any report,
statement or testimony submitted to any municipal, state or federal regulatory
body having jurisdiction over the Subscriber, (iii) as may be required in
response to any summons or subpoena or in connection with any litigation
(provided the Subscriber makes reasonable efforts to enable the Company to
seek
a protective order), (iv) in order to comply with any law, order, regulation
or
ruling applicable to the Subscriber or (v) on a confidential basis to its
attorneys, accountants, consultants and other professionals to the extent
necessary to obtain their services in connection with its investment in the
Company.
17.
Summary
of Documents Being Tendered and Payment of Subscription Price.
The
Subscriber hereby tenders the following documents to the Company:
a. Two
(2)
counterparts, duly executed and filled in by the Subscriber, of this
Subscription Agreement; and
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b. Two
(2)
counterparts, duly executed by the Subscriber, of the Registration Rights
Agreement by and among the Company and each of the Persons, as defined and
listed therein; and
c. Payment
of the amount set forth on the signature page below, in the form of either
a
certified or bank cashier’s check made payable “Wilmington Trust Company, as
escrow agent for State Bancorp, Inc.” or a wire transfer of funds to the
following account:
Wilmington
Trust Company
ABA
000000000
Credit:
State Bancorp Escrow
Account
#079000-000
Attn:
Xxxx Xxxxxxx
If
the
Subscriber has designated a Purchaser Representative, as such term is defined
by
Regulation D of the 1933 Act, in connection with an evaluation of the merits
and
risks of the prospective investment in the Company, then additional
documentation may be required.
18.
Governing
Law; Jurisdiction.
This
Subscription 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.
The
Company and the Subscriber hereby irrevocably submits 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
Subscription 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 Subscriber irrevocably
waives, 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.
19.
Modification.
Neither
this Subscription Agreement nor any provisions hereof shall be waived, modified,
amended, discharged or terminated except as provided herein and by an instrument
in writing signed by the party against whom any waiver, modification, discharge,
amendment or termination is sought.
20.
Entire
Agreement.
This
Subscription Agreement represents the entire understanding of the parties
hereto
with reference to the transactions contemplated hereby and supersedes any
and
all other oral or written agreements heretofore made.
12
IN
WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement
on the
date set forth on the signature page.
The
Subscriber has executed the Subscription Agreement this _____ day of _______,
2006.
SUBSCRIPTION
Total
Shares: ________
Total
Price: _________
Name
in
which Shares Should be Issued: _________________________________
CATEGORY
OF ACCREDITED INVESTOR
The
Subscriber certifies, represents and warrants that the Subscriber qualifies
as
an “accredited investor,” as such term is defined in Regulation D promulgated
under the 1933 Act, under the following categories which are checked
(please
check all that apply):
| q |
1. It
is a bank, as defined in Section 3(a)(2) of the 1933 Act, or a savings
and
loan association or other institution as defined in Section 3(a)(5)(A)
of
the 1933 Act whether acting in its individual or fiduciary capacity;
a
broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in Section
2(13) of
the Securities Act; an investment company registered under the Investment
Company Act of 1940 or a business development company as defined
in
Section 2(a)(48) of that act; a Small Business Investment Company
licensed
by the Small Business Administration under Section 301(c) or (d)
of the
Small Business Investment Act of 1958; a plan established and maintained
by a state, its political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, for the benefit of employees,
if
such a plan has total assets in excess of $5,000,000; an employee
benefit
plan within the meaning of the Employee Retirement Income Security
Act of
1974 if the investment decision is made by a plan fiduciary, as defined
in
Section 3(21) of such act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser,
or if
the employee benefit plan has total assets in excess of $5,000,000
or, if
a self directed plan, with investment decisions made solely by persons
that are accredited investors.
|
| q |
2. It
is a private business development company as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940.
|
| q |
3. It
is an organization described in Section 501(c)(3) of the Internal
Revenue
Code, a corporation, a Massachusetts or similar business trust, or
a
partnership not formed for the specific purpose of acquiring an interest
in the Company, with total assets in excess of
$5,000,000.
|
| q |
4. It
is a director or executive officer of the
Company.
|
| q |
5. It
is a natural person who has an individual net worth, or joint net
worth
with that person’s spouse which on the date hereof exceeds
$1,000,000.
|
| q |
6. It
is a natural person who had an individual income in excess of $200,000
in
each of the two most recent years or joint income with that person’s
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same level in the current
year.
|
| q |
7. It
is a trust with total assets in excess of $5,000,000, not formed
for the
specific purpose of acquiring an interest in the Company, whose purchase
is directed by a sophisticated person as described in Rule 506(b)(2)(ii)
promulgated under the 1933 Act.
|
| q |
8. It
is an entity in which all the equity owners are accredited investors,
as
described above in paragraph 1 through 7
above.
|
| q |
9. None
of the above paragraphs describe the
Subscriber.
|
Annex C
FEDERAL
INCOME TAX BACKUP WITHHOLDING
In
order
to prevent the application of federal income tax backup withholding, each
subscriber must provide us with a correct Taxpayer Identification Number
(“TIN”). An individual’s social security number is his or her TIN. The TIN
should be provided in the space provided in the Substitute Form W-9
below.
Under
federal income tax law, any person who is required to furnish his or her
correct
TIN to another person, and who fails to comply with such requirement, may
be
subject to a $50 penalty imposed by the IRS.
Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld.
If
backup withholding results in an overpayment of taxes, a refund may be obtained
from the IRS. Certain taxpayers, including all corporations, are not subject
to
these backup withholding and reporting requirements.
If
the
shareholder has not been issued a TIN and has applied for a TIN or intends
to
apply for a TIN in the near future, “Applied For” should be written in the space
provided for the TIN on the Substitute Form W-9.
SUBSTITUTE
FORM W-9
Under
penalties of perjury, I certify that: (i) the number shown on this form is
my
correct Taxpayer Identification Number (or I am waiting for a Taxpayer
Identification number to be issued to me), and (ii) I am not subject to backup
withholding because: (a) I am exempt from backup withholding; or (b) I have
not
been notified by the Internal Revenue Service (“IRS”) that I am subject to
backup withholding as a result of a failure to report all interest or dividends;
or (c) the IRS has notified me that I am no longer subject to backup
withholding.
You
must
cross out item (ii) above if you have been notified by the IRS that you are
subject to backup withholding because of underreporting interest or dividends
on
your tax return. However, if after being notified by the IRS that you were
subject to backup withholding you received another notification from the
IRS
that you are no longer subject to backup withholding, do not cross out item
(ii).
Each
subscriber should complete this section.
|
_____________________________
Signature
of Subscriber
|
_____________________________
Signature
of Subscriber
|
|
_____________________________
Printed
Name
|
_____________________________
Printed
Name
|
|
_____________________________
Social
Security or Employer Identification Number
|
_____________________________
Social
Security or Employer Identification Number
|
FORM
OF
OWNERSHIP
Please
indicate the form of ownership that you desire for the Shares.
_____ Individual
(one signature required)
_____ Joint
tenants with right of survivorship (both parties must sign)
_____ Tenants
in common (both parties must sign)
|
_____
|
Community
property (one signature required if interest held in one name,
i.e.,
managing spouse; two signatures required if interest held in both
names)
|
|
_____
|
Trust
(trustee must sign as follows: [name of trustee] as trustee for
[name of
trust] dated _______)
|
_____ Corporation
(signature of authorized party or parties)
|
_____
|
Partnership
(signature of general partner and additional signatures if required
by the
partnership agreement)
|
|
_____
|
Limited Liability Company (signature of managing member and additional signatures if required by the limited liability company agreement) |
INDIVIDUAL
SUBSCRIBERS ONLY
_______________________ _______________________
Signature
of Subscriber Signature
of Joint Owner
_______________________
_______________________
Printed
Name of Subscriber
Printed
Name of Joint Owner
_______________________ _______________________
Subscriber’s
Social Joint
Owner’s Social
Security
Number
Security
Number
_______________________ _______________________
Residence
Address
Residence
Address
_______________________ _______________________
City State Zip City State Zip
_______________________ _______________________
Telephone
Number Telephone
Number
_______________________ _______________________
Email
Address Email
Address
CORPORATIONS
ONLY
____________________________________________________________________________________
Name
of
Corporation (print or type)*
By:
___________________________
(Signature
of authorized agent)
_____________________________
Title
_____________________________
Taxpayer
Identification Number
*
Please
furnish corporate resolution.
Corporation’s
Address:
_____________________________
_____________________________
_____________________________
_____________________________
Telephone
Number
__________________________________
Email
Address
PARTNERSHIPS
ONLY
_________________________________________________________________________________________
Name
of
Partnership (print or type)*
By:
_________________________________
Signature
of a general partner
By:
_____________________________
(Signature
of additional general
partner
if
required by partnership
agreement)
__________________________________
Taxpayer
Identification Number
* Please
provide a copy of the executed partnership agreement. All partners should
sign a
subscription Agreement or indicate the authority of the partner who signs
on
behalf of the partnership.
Partnership’s
Address:
__________________________________
__________________________________
__________________________________
__________________________________
Telephone
Number
_______________________________________
Email
Address
TRUSTS
OR
RETIREMENT PLANS ONLY
_______________________________________________________________________________________
Name
of
Trust or Retirement Plan (print or type)
_______________________________________________________________________________________
Name
of
Trustee or Plan Fiduciary (print or type)*
________________________________
Date
Formed
By:
___________________________
Trustee’s
or Plan Fiduciary’s signature
________________________________
Taxpayer Identification Number
Taxpayer Identification Number
* Please
provide a copy of the executed trust agreement if a trustee executes this
page.
If a plan fiduciary executes this page, please provide a statement executed
by
that fiduciary that this investment is in accordance with the terms of the
plan
and that the fiduciary is authorized to sign.
Trustee/Fiduciary
Address:
________________________________
________________________________
________________________________
________________________________
Telephone
Number
____________________________________
Email
Address
ACCEPTANCE
ACCEPTED
as to _______ Shares.
Date:
___________, 2006.
STATE
BANCORP, INC.
By:
_____________________________________
Its:
_____________________________________
