EXHIBIT 99
FIRST STAR CAPITAL TRUST
Subscription Agreement
for
Adjustable Rate Trust Preferred Securities, Liquidation Amount $10.00
per Preferred Security
To: First Star Capital Trust
c/x Xxxxxx Xxxxxxx, a Division of Xxxxxx Xxxxxxx Incorporated
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
1. Subscription. The undersigned hereby subscribes for the purchase of
the number of Adjustable Rate Trust Preferred Securities, Liquidation Amount
$10.00 per Preferred Security (the "Preferred Securities") of FIRST STAR CAPITAL
TRUST, a statutory business trust formed under the laws of the State of Delaware
(the "Trust"), set forth above the undersigned's signature. The undersigned
hereby tenders immediately available funds in the amount of $10.00, payable to
the order of First Star Capital Trust, for each subscribed for Preferred
Security.
2. Acknowledgments. The undersigned acknowledges that no Preferred
Securities shall be deemed sold or issued to the undersigned, nor shall the
undersigned have any interest in the Trust or be deemed to be a holder of
Preferred Securities of the Trust, until the Trust accepts this subscription
pursuant to the terms of the offering as set forth in the Prospectus dated
, 1999, pertaining to the sale of up to $12,000,000 Preferred
Securities (the "Prospectus"). Acceptance of this subscription shall be made by
the execution of this Subscription Agreement by an authorized administrator of
the Trust. The undersigned acknowledges that the Company and the Trust may
reject any subscription for any reason in their discretion.
3. Warranties and Representations. The undersigned makes the following
representations and warranties with the intent that the same may be relied upon
in determining the undersigned's suitability to become a holder of Preferred
Securities of the Trust with the understanding that the availability of
exemptions from registration of the offering under applicable state securities
laws may depend upon the accuracy of such representations and warranties:
(a) Receipt of Prospectus. The undersigned has received a copy
of the Prospectus, from the Trust or its agent, and makes and enters into this
Subscription Agreement with full knowledge of the terms and conditions contained
therein. First Star Bancorp, Inc. (the "Company"), as sponsor of the Trust, has
made available to the undersigned and the undersigned's agents and advisors the
opportunity to obtain additional information and to verify
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the accuracy of the information contained in the Prospectus, to evaluate the
merits and risks of this investment and to ask questions of and receive
satisfactory answers from the Company on behalf of the Trust concerning the
terms and conditions of the offering.
(b) Risk Factors. The undersigned understands the risks
involved in an investment in the Preferred Securities, including those described
in the Prospectus under "Risk Factors." The undersigned recognizes that an
investment in the Preferred Securities involves the risk of loss of principal
and/or interest.
(c) Knowledge and Experience of Undersigned. The undersigned
represents that the undersigned's knowledge and experience in financial and
business matters in general are such that the undersigned (together with the
undersigned's advisors, if appropriate) is capable of evaluating the merits and
risks of an investment in the Preferred Securities.
(d) Financial Standards. Please check one or more if
applicable:
(1) As of the date hereof, the undersigned has
----- an individual net worth, or joint net worth
with his or her spouse, excluding principal
residence, home furnishings and automobiles,
of at least five times the price of the
Preferred Securities subscribed for herein.
(2) As of the date hereof, the undersigned has
----- an individual net worth, or joint net worth
with his or her spouse, in excess of
$1,000,000.
(3) The undersigned, individually and not
----- jointly with a spouse, has had income in
each of the two preceding calendar years and
reasonably expects to have income during the
current calendar year in excess of $200,000
per year.
(4) The undersigned has had joint income
----- together with his or her spouse in each of
the two preceding calendar years and
reasonably expects to have such joint income
during the current calendar year in excess
of $300,000 per year.
(5) The undersigned is an entity in which all of
----- the equity owners are accredited investors
who meet the criteria listed in (2), (3) or
(4) above.
(6) The undersigned is a bank, a savings and
----- loan association, a registered broker
dealer, an insurance company, an investment
company as defined in the Investment Company
Act of 1940, a private business development
company as defined in the
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Investment Advisors Act of 1940, or any
person (other than an individual) that
controls any of the foregoing.
(7) The undersigned is an employee benefit plan
----- within the meaning of TitleI of the Employee
Retirement Income Security Act of 1974 (ERISA)
and either (i) this investment decision is
made by a plan fiduciary, as defined in
Section 3(21) of ERISA, that is a bank, saving
and loan association, insurance company or
a registered investment advisor, or (ii) the
plan has total assets in excess of $5,000,000.
(8) The undersigned is a self-directed employee
----- benefit plan within the meaning of Title I
of ERISA whose investment decisions are made
solely by persons or entities who meet any
of the requirements of (2) through (7),
above, or (10) through (11), below.
(9) The undersigned is an organization described
----- in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, a Massachusetts or
similar business trust, a corporation or a
partnership with total assets in excess of
$5,000,000, and has not been formed for the
specific purpose of acquiring the Preferred
Securities.
(10) The undersigned is a trust with total assets
----- in excess of $5,000,000, not formed for the
specific purpose of acquiring the Preferred
Securities, whose subscription is being
directed by a person who has such knowledge
and experience in financial and business
matters that he or she is capable of
evaluating the merits and risks of an
investment in the Preferred Securities.
(11) The undersigned is a director or executive
----- officer of the Company.
(e) Limited Liquidity of Investment. The undersigned
recognizes that there will be no public market for the Preferred Securities. The
undersigned expects to hold the Preferred Securities for investment and
understands that the undersigned will not readily be able to liquidate the
investment in the Preferred Securities even in case of emergency.
(f) Employee Benefit Plans and Plan Asset Entities. The
undersigned represents that it has read the section of the Prospectus captioned
"ERISA Considerations" and represents that the undersigned either (a) is not a
Plan or Plan Asset Entity as such terms are defined under "ERISA Considerations"
in the Prospectus or (b) is exempt from ERISA's prohibited transaction rules
95-60, 91-38, 90-1 or 84-14.
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4. Restrictions on Transfer. The undersigned acknowledges that the
Preferred Securities will be offered and sold without registration under the
Pennsylvania Securities Act of 1972, as amended, or under any other state
securities law. No such registration is contemplated in the future, the holders
of Preferred Securities have no right to require such registration and the
Preferred Securities may not be transferred absent an exemption from such
registration. The undersigned acknowledges that certificates for the Preferred
Securities will bear a restrictive legend regarding the absence of registration
under the securities laws of any state. Any expenses of a subscriber's
compliance with resale restrictions are the responsibility of the subscriber.
(a) Pennsylvania Residents. The undersigned, if a resident of
the Commonwealth of Pennsylvania and if purchasing the Preferred Securities
other than as an Institutional Investor or a Principal, as such terms are
defined by Section 102(k) of the Pennsylvania Securities Act of 1972, as
amended, (the "Pennsylvania Act") or Regulation 102.111 of Chapter 102 of Title
64 of the Pennsylvania Code, as amended, and Regulation 203.184 of Chapter 203
of Title 64 of the Pennsylvania Code, respectively, acknowledges that the
certificates for the Preferred Securities will bear a restrictive legend and
represents that the undersigned has completed and delivered the Agreement Not to
Sell (in the form attached as Appendix A).
(b) Delaware Residents. The undersigned, if a resident of the
State of Delaware and if purchasing the Preferred Securities other than as an
Institutional Investor, as such term is defined by Section 7309(b)(8) of the
Delaware Securities Act, as amended, (the "Delaware Act") or Section 510 of the
Rules and Regulations pursuant to the Delaware Act, acknowledges that the
certificates for the Preferred Securities will bear a restrictive legend and
represents that the undersigned has completed and delivered the Agreement Not to
Sell (in the form attached as Appendix B).
(c) Ohio Residents. The undersigned, if a resident of the
State of Ohio and if purchasing the Preferred Securities other than as an
Institutional Investor, as such term is defined by Section 1707.01(S) of the
Ohio Securities Act, as amended, (the "Ohio Act") or Rule 1301:6- 3-01(D) of the
Rules and Regulations pursuant to the Ohio Act, acknowledges that the
certificates for the Preferred Securities will bear a restrictive legend and
represents that the undersigned has completed and delivered the Agreement Not to
Sell (in the form attached as Appendix C).
5. Indemnity. The undersigned agrees to indemnify the Trust, the
Company and their respective trustees, administrators, officers and directors
and hold them harmless from and against any and all loss, damage, liability and
expense, including reasonable attorney's fees, which they may incur by reason of
any misrepresentation made by the undersigned, any breach of any of the
undersigned's representations and warranties or the undersigned's failure to
fulfill any of the agreements under this Subscription Agreement.
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6. Purchaser's Questionnaire. The undersigned has completed and
delivered to the Trust the Purchaser's Questionnaire (in the form attached).
7. Offeree Representative. The undersigned has consulted with and been
guided by an investment advisor, attorney and/or accountant named below (the
"Representative") with respect to and concerning the advisability of the
purchase of the Preferred Securities hereby subscribed for (or if the space
therefor is left blank, the undersigned represents and warrants that the
undersigned is capable of evaluating an investment in the Preferred Securities
without the assistance of such an advisor even though advised by the Trust to
seek such advice). The undesigned has been advised by the Representative of any
and all material relationships that the Representative had during the past two
years, now had or intends to have in the future with the Trust or its
Affiliates.
--------------------------------
(Name of Offeree Representative)
8. Miscellaneous.
(a) The representations, warranties and agreements of the
undersigned set forth herein and in the Purchaser's Questionnaire are continuing
in nature and shall survive the acceptance of this Subscription Agreement and
the issuance of the Preferred Securities.
(b) this Subscription Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to the conflicts of laws principles thereof.
EXECUTED this day of , 1999.
-------- ----------------
Number of Preferred Securities subscribed Total subscription price at
for: $10.00 per Preferred Security = $
------------------------------------ ----
Name(s) to be placed on certificates:
------------------------------------------
Principal Residence:
-----------------------------------------------------------
-----------------------------------------------------------
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Signature of Subscriber Signature of Subscriber
Business Address:
-----------------------------------------------------------
-----------------------------------------------------------
-------------------------------------------- -------------------------------
Printed Name of Subscriber Printed Name of Subscriber
--------------------------------------------------------------------------------
Social Security Number or Social Security Number or
Taxpayer Identification Number Taxpayer Identification Number
-------------------------------------------- -------------------------------
Business Phone Number Home Phone Number
-------------------------------------------- -------------------------------
Fax Number E-Mail Address
Please indicate with an "X" whether you wish mailings to holders of the
Preferred Securities to be sent to your home address or to your business address
.
Accepted this day of , 1999.
-------- ----------------
FIRST STAR CAPITAL TRUST
By: FIRST STAR BANCORP, INC.,
as Sponsor
By:
------------------------------
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INSTRUCTIONS
------------
Each subscription must include;
(a) A completed and executed copy of this Subscription Agreement;
(b) A completed and executed copy of the Purchaser's Questionnaire; and
(c) Your check made payable to "First Star Capital Trust" or written
instructions regarding the date when you intend to wire transfer funds
as payment for your Preferred Securities.
Please mail or hand deliver all of the above items to:
First Star Capital Trust
c/x Xxxxxx Xxxxxxx, a Division of Xxxxxx Xxxxxxx Incorporated
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Wire transfers in payment of the Preferred Securities shall be sent to:
Bankers Trust Company as follows:
ABA #
----------------------------
for further credit to
Bankers Trust Company
----------------------------------
for further credit to
Bankers Trust Company Corporate Trust and Agency Services
----------------------------------
Reference: First Star Capital Trust Escrow Account
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FIRST STAR CAPITAL TRUST
(the "Trust")
PURCHASER's QUESTIONNAIRE
for
Adjustable Rate Trust Preferred Securities, Liquidation Amount $10.00
per Preferred Security
THIS QUESTIONNAIRE MUST BE ANSWERED FULLY AND RETURNED TO XXXXXX
XXXXXXX ALONG WITH YOUR COMPLETED SUBSCRIPTION PACKAGE. THE PURCHASER
INFORMATION REQUESTED HEREIN IS IN ADDITION TO THE INFORMATION CONTAINED IN THE
SUBSCRIPTION AGREEMENT.
THE INFORMATION SUPPLIED BY PROSPECTIVE SUBSCRIBERS WILL BE HELD IN
STRICT CONFIDENCE. NO INFORMATION WILL BE DISCLOSED EXCEPT TO THE EXTENT THAT
SUCH DISCLOSURE (i) IS REQUIRED BY LAW OR REGULATION, (ii) IS NECESSARY TO
DEFEND AGAINST ANY CLAIM THAT THE OFFER AND SALE OF THE PREFERRED SECURITIES WAS
NOT EXEMPT FROM REGISTRATION UNDER THE PENNSYLVANIA SECURITIES ACT OF 1972, AS
AMENDED, OR ANY STATE SECURITIES LAW OR TO OTHERWISE ESTABLISH THE TRUST'S AND
THE COMPANY'S GOOD FAITH ATTEMPT TO COMPLY WITH THE REQUIREMENTS OF ANY
EXEMPTION FROM REGISTRATION, OR (iii) IS OTHERWISE DEMANDED BY PROPER LEGAL
PROCESS.
PART I - INDIVIDUALS
--------------------
1. Personal Data
Name:
-----------------------------------------------------------------
Residence Address:
----------------------------------------------------
Business Address:
----------------------------------------------------
State of Residence, if Different:
-------------------------------------
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2. Occupation, Employment, Business Experience and Education
---------------------------------------------------------
A brief description of my current occupation is as follows:
------------
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PART II - PURCHASERS WHO ARE NOT INDIVIDUALS
--------------------------------------------
1. General Information
-------------------
Name of Entity:
-------------------------------------------------------
Address of Principal Office:
------------------------------------------
--------------------------------------------------------------------------------
Type of Organization (Corporation, Partnership, etc.):
----------------
--------------------------------------------------------------------------------
Date and Place of Organization:
---------------------------------------
2. Business
--------
A brief description of the business conducted by the entity is as
follows:
-----------------------------------------------------------------------
--------------------------------------------------------------------------------
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3. Controlling Persons
-------------------
Each person involved in making the investment decision on behalf of the
entity is listed below:
Name Title
---- -----
-----------------------------------------------------------------------
-----------------------------------------------------------------------
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4. Benefit Plan Status
-------------------
Please indicate whether or not the entity is or is acting on behalf of
(i) an employee benefit plan within the meaning of Section 3(3) of ERISA,
whether or not such plan is subject to ERISA, (ii) an entity which is deemed to
hold the assets of any such employee plan pursuant to 29 C.F.R. Section
2510.3-1010. For example, a plan which is maintained by a foreign corporation,
governmental entity or church, a Xxxxx plan covering no common-law employees,
and an individual retirement account are employee benefit plans within the
meaning of Section 3(3) of ERISA, but generally are not subject to ERISA
(collectively, "Non-ERISA Plans"). In general, a foreign or U.S. entity which is
not an operating company and which is not publicly traded or registered as an
investment company under the Investment Company Act and in which 25% or more of
the value of any class of equity interests is held by employee pension or
welfare plans (including an entity which is deemed to hold the assets of any
such plan), would be deemed to held the assets of one or more employee benefit
plans pursuant to 29 C.F.R. Section 2510.3- 101. However, if only Non-ERISA
Plans were invested in such an entity, the entity would not be subject to ERISA.
For purposes of determining whether this 25% threshold has been met or exceeded,
the value of any equity interests held by a person (other than such a plan or
entity) who had discretionary authority or control with respect to the assets of
the entity, or any persons who provides investment advice for a fee (direct or
indirect) with respect to such assets, or any affiliate of such person, is
disregarded.
Yes No
----- -----
If you answered yes to the above question, please answer the following:
The entity is, or is acting on behalf of, an individual retirement
account.
Yes No
----- -----
The entity is, or is acting on behalf of, an employee benefit plan
within the meaning of Section 3(3) of ERISA, whether or not such plan
is subject to ERISA, which covers only an individual who is the sole
owner of the plan sponsor and his or her spouse, if any.
Yes No
----- -----
5. Representations
---------------
The undersigned officer of the entity represents that:
a. The entity was not organized for the purpose of purchasing
Preferred Securities.
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b. the officers, directors, employees or equity owners of the entity
have sufficient knowledge and experience in similar programs or
investments to evaluate the merits and risks of an investment in
the Preferred Securities (or the entity has retained an attorney,
accountant, financial advisor or consultant as a purchaser
representative); the officers, directors, employees or equity
owners of the entity have received and have had access to
material and relevant information enabling them to make an
informed investment decision regarding the Preferred Securities,
and that all data requested on behalf of the entity has been
furnished to it.
If applicable, the name, employer address and telephone number of
the entity's purchaser representative is as follows:
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
c. It is understood that the information contained herein is being
furnished to the Trust and First Star Bancorp, Inc. as Sponsor
(the "Company"), to assist the Trust and the Sponsor in
evaluating the entity's suitability as an investor in the Trust
and to determine whether a sale of Preferred Securities may be
made to the entity pursuant to applicable federal and state
securities laws and regulations.
d. It is acknowledged that the Trust and the Sponsor may rely upon
the information contained herein for purposes of determining the
entity's suitability as an investor in the Trust and that the
evaluation of the information by the Trust and the Sponsor
contained herein may preclude its acceptance of the entity's
subscription for Preferred Securities.
The foregoing answers are true and correct and may be relied upon by
the Trust, the Sponsor and Xxxxxx Xxxxxxx.
Entity
------
Date:
---------------------------- -------------------------------------------
Name of Entity
By:
---------------------------------------
---------------------------------------
Name and Title
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PART III - OFFEREE REPRESENTATIVE QUESTIONNAIRE
-----------------------------------------------
1. Name (Individual and Firm or Company):
--------------------------------
-----------------------------------------------------------------------
2. Business Address and Telephone Number:
--------------------------------
-----------------------------------------------------------------------
3. I vote in the sate of:
------------------------------------------------
4. Employer and Position or Profession:
----------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
5. The undersigned is not an affiliate, director, officer, other employee
of the Trust or any affiliate, or the beneficial owner of ten percent
or more of the equity interest in the Trust or any affiliate.
6. The undersigned has such knowledge and experience in financial and
business matters so as to be capable of evaluating the relative merits
and risks of an investment in the Preferred Securities. Set forth below
is the following additional information in support of the foregoing
statement (i.e., investment experience, business experience, profession
and education):
-----------------------------------------------------------------------
-----------------------------------------------------------------------
7. There is no material relationship between the undersigned or his or her
affiliates and the Trust, the Company or its affiliates which now
exists, is mutually understood to be contemplated, or which has existed
at any time during the previous two years.
Date:
------------------------------- -------------------------------------
(Signature of Offeree Representative)
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APPENDIX A: PENNSYLVANIA RESIDENTS
NON-INSTITUTIONAL INVESTORS AND NON-PRINCIPALS
--------------------------------------------------------------------------------
AGREEMENT NOT TO SELL
AND ACKNOWLEDGMENT OF RIGHT TO WITHDRAW SUBSCRIPTION
I,_________________, understand and hereby agree that as a condition of
the availability of an exemption from registration afforded to First Star
Capital Trust (the "Issuer") pursuant to Section 203(d) of the Pennsylvania
Securities Act of 1972, as amended (the "Act"), I may not sell any securities
issued to me by the Issuer, except in accordance with Regulation 204.011 of the
Pennsylvania Code, as amended, for a period of twelve months after the date of
purchase of such securities, and I authorize the Issuer to file this agreement
on my behalf with the Pennsylvania Securities Commission.
I further understand that I have the right, pursuant to Section 207(m)
of the Act to withdraw my subscription and receive a full refund of all monies
paid, within two business days from the date of receipt by Xxxxxx Xxxxxxx of the
subscription agreement. Withdrawal will be without any further liability to any
person, including the Issuer and Xxxxxx Xxxxxxx. To accomplish withdrawal, I
will send a letter or telegram to the Issuer in care of Xxxxxx Xxxxxxx at the
address set forth in this subscription agreement, indicating my intention to
withdraw. Such letter will be postmarked or such telegram will be sent prior to
the end of the second business day. If I send a letter, I will do so by
certified mail, return receipt requested. If I make the request orally (in
person or by telephone), I will request a written confirmation that my request
has been received.
I further understand that my certificate for the securities will
contain the following legend:
"The securities evidenced by this certificate were sold without
registration in the Commonwealth of Pennsylvania pursuant to an exemption set
forth at Section 203(d) of the Pennsylvania Securities Act of 1972, as amended,
requiring, among other things, that the purchaser may not sell the securities
for twelve consecutive months from the date of purchase. These shares may not be
transferred or sold without an opinion of counsel of the holder stating that the
holder (i) has sufficiently fulfilled the requirements of under Section
203(d)(i) of the Pennsylvania Securities Act of 1972, or (ii) meets the
conditions for an automatic waiver of the twelve month holding period contained
in Regulation 204.011 of the Pennsylvania Code, as amended."
Date: , 1999 By:
----------------- ------------------------------------------
Purchaser
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APPENDIX B: DELAWARE RESIDENTS
NON-INSTITUTIONAL INVESTORS
--------------------------------------------------------------------------------
AGREEMENT NOT TO SELL
---------------------
I, _______________, understand and hereby acknowledge that these
securities are being sold without registration in the State of Delaware pursuant
to an exemption set forth at Section 7309(b)(9) of the Delaware Securities Act,
as amended, requiring among other things that I am purchasing the securities of
the Issuer with investment intent and that these securities may be resold only
with an opinion of counsel stating that I have sufficiently fulfilled the
requirement of purchasing for investment. I authorize the Issuer to file this
agreement on my behalf with the Delaware Division of Securities.
I further understand that my certificate for the securities will
contain the following legend:
"The securities evidenced by this certificate were sold without
registration in the State of Delaware pursuant to an exemption set forth at
Section 7309(b)(9) of the Delaware Securities Act, as amended, requiring, among
other things, the buyer to be "purchasing for investment." These shares may not
be transferred or sold without an opinion of counsel of the holder stating that
the holder has sufficiently fulfilled the requirement of "purchasing for
investment" under Section 7309(b)(9) of the Delaware Securities Act, as
amended."
Date: , 1999 By:
----------------- ------------------------------------------
Purchaser
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APPENDIX C: OHIO RESIDENTS
NON-INSTITUTIONAL INVESTORS
--------------------------------------------------------------------------------
AGREEMENT NOT TO SELL
---------------------
I, , understand and hereby acknowledge that these securities are being
sold without registration in the State of Ohio pursuant to an exemption set
forth at Section 1707.03(D) of the Ohio Securities Act, as amended, requiring
among other things that I am purchasing the securities of the Issuer with
investment intent and that these securities may be resold only with an opinion
of counsel stating that I have sufficiently fulfilled the requirement of
purchasing for investment. I authorize the Issuer to file this agreement on my
behalf with the Ohio Division of Securities.
I further understand that my certificate for the securities will
contain the following legend:
"The securities evidenced by this certificate were sold without
registration in the State of Ohio pursuant to an exemption set forth at Section
1707.03(D) of the Ohio Securities Act, as amended, requiring, among other
things, the buyer to be "purchasing for investment." These shares may not be
transferred or sold without an opinion of counsel of the holder stating that the
holder has sufficiently fulfilled the requirement of "purchasing for investment"
under Section 1707.03(D) of the Ohio Securities Act, as amended."
Date: , 1999 By:
----------------- ------------------------------------------
Purchaser
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