SUBSCRIPTION AGREEMENT for SMITHTOWN BANCORP, INC. A NEW YORK CORPORATION COMMON SHARES, PAR VALUE $0.01 PER SHARE

1.1

Purchase

1

1.2

Closing

3

2.1

Disclosure

5

2.2

Representations and Warranties of the Company

5

2.3

Representations and Warranties of the Investor

10

3.1

Commercially Reasonable Efforts

13

3.2

Expenses

13

3.3

Publicity

13

3.4

Further Assurances

14

4.1

Transfer Restrictions

14

4.2

Legend

15

4.3

Registration Rights

16

5.1

Survival

25

5.2

Indemnification Generally

25

5.3

Interpretation

26

5.4

Amendment

26

5.5

Waiver of Conditions

26

5.6

Counterparts and Facsimile

26

5.7

Governing Law; Submission to Jurisdiction, Etc

26

5.8

Notices

27

5.9

Entire Agreement, Etc

27

5.10

Definitions of “Subsidiary” and “Affiliate”

28

5.11

Severability

28

5.12

No Third Party Beneficiaries

28

Form of Opinion of Sullivan & Cromwell LLP

Category of Accredited Investor

Federal Income Tax Backup Withholding

Individual Investor Questionnaire

Term

Location of

Definition

Affiliate

5.10(b)

Agreement

Preamble

Applicable Time

4.4(g)(1)

Bankruptcy Exceptions

2.2(d)(1)

BHC Act

2.2(h)(1)

Closing

1.2(a)

Closing Date

1.2(a)

Code

2.3(g)

Common Shares

Recital A

Company

Preamble

Company Indemnitee

4.4(g)(2)

Effectiveness Deadline

4.3(a)(4)

ERISA

2.3(g)

Exchange Act

2.1(b)

FDIC

2.2(a)

Federal Reserve

2.2(i)(2)

Filing Deadline

4.3(a)(4)

GAAP

2.1(a)

Governmental Entities

2.1(a)

Hedging Transaction

4.1(a)

Indemnitee

4.4(g)(3)

Investor

Preamble

Investor Indemnitee

4.4(g)(1)

Investor Material Adverse Effect

2.3(b)(2)

Knowledge

1.3

Material Adverse Effect

2.1(a)

Memorandum

Recital B

Non-ERISA Arrangement

2.3(g)

Offering

Recital B

Payment

1.1(b)

Pending Offering

4.3(k)

Permitted Transferee

4.1(b)(1)

Plan

2.3(g)

Plan Asset Entity

2.3(g)

Previously Disclosed

2.1(b)

Purchase

1.1

Purchased Securities

Recital B

Register

4.4(j)

Registrable Securities

4.4(j)

Registration Expenses

4.4(j)

Representatives

5.2

Rights

2.2(b)(1)

Rights Agreement

2.2(b)(1)

SEC

2.1(b)

SEC Reports

2.1(b)

Securities Act

2.2(a)

Selling Expenses

4.4(j)

Shelf Registration Statement

4.3(a)(2)

Significant Subsidiaries

2.2(a)

Significant Subsidiary

2.2(a)

Similar Laws

2.3(g)

Subscription Date

1.1(d)

Subsidiary

5.10(a)

Transaction Documents

Recital B

Transfer

4.1(a)

(1)

This Agreement may not be terminated by the Company unless, before the Closing occurs, the Company determines in good faith that the conditions to the Closing set forth in Section 1.2(d) will not be satisfied within 10 days of the date of the Company’s acceptance of the Investor’s subscription by counter-execution and delivery of this Agreement by the Company. The Company shall deliver notice of such termination to the Investor promptly upon making such determination, and such termination shall have the effect of terminating this Agreement, effective as of the date such notice is received by the Investor in accordance with Section 5.8. Subject to the foregoing, the Company agrees to use its commercially reasonable efforts to consummate the Closing on the Closing Date (as hereinafter defined) or as soon as practicable thereafter.

(2)

This Agreement may not be terminated by the Investor at any time following the Investor’s delivery of an executed counterpart of this Agreement to the Company (even if the Company has not yet accepted or rejected the Purchase); provided, however, that, before the Closing has occurred, the Investor may withdraw its subscription by delivering notice of such withdrawal to the Company after a period of 15 days after the date (the “Subscription Date”) that is the later of (x) the first date the Investor delivers an executed counterpart of this Agreement, including all Annexes hereto, to the Company or its authorized representative and (y) the first date the Investor delivers the Payment in accordance with Section 1.1(b). Such withdrawal shall have the effect of terminating this Agreement, effective as of the date such notice is received by the Company in accordance with Section 5.8.

(3)

Notwithstanding the foregoing, this Agreement may be terminated by either the Company or the Investor upon written notice to the other if the Closing shall not have occurred on or before October 3, 2008.

(4)

In the event of termination of this Agreement as provided in this Section 1.1(d), (A) this Agreement shall forthwith become void, and there shall be no liability on the part of either party hereto, except that nothing herein shall relieve either party from liability for any willful breach of this Agreement, and (B) the Company shall promptly instruct its escrow agent to return any previously delivered Payment to the Investor, without interest.

(1)

(A) the representations and warranties of the Company set forth in this Agreement shall be true and correct as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct as of such date), except to the extent that the failure of such representations and warranties to be so true and correct (without giving effect to any qualifiers or exceptions relating to materiality or Material Adverse Effect (as hereinafter defined)), individually or in the aggregate, does not have and would not reasonably be expected to have a Material Adverse Effect and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;

(2)

the Investor shall have received from Sullivan & Cromwell LLP a legal opinion in the form attached hereto as Annex A, addressed to the Investor, dated as of the Closing Date; and

(3)

the Investor shall have received a certificate dated as of the Closing Date signed on behalf of the Company by a senior officer of the Company certifying compliance with Section 1.2(c)(1).

(1)

(A) the representations and warranties of the Investor set forth in this Agreement shall be true and correct as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct as of such date), except to the extent that the failure of such representations and warranties to be so true and correct (without giving effect to any qualifiers or exceptions relating to materiality or Material Adverse Effect (as hereinafter defined)), individually or in the aggregate, does not have and would not reasonably be expected to have a Material Adverse Effect and (B) the Investor shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;

(2)

the Company shall have received from Sullivan & Cromwell LLP a legal opinion substantially in the form attached hereto as Annex A, addressed to the Company, dated as of the Closing Date; and

(3)

the Company shall have received a certificate dated as of the Closing Date signed by the Investor or an authorized representative of the Investor certifying compliance with Section 1.2(d)(1).

(1)

As of the date hereof, the authorized and outstanding capital stock of the Company is as set forth in Recital A.

(2)

All of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and were not issued in violation of any preemptive rights, resale rights, rights of first refusal or similar rights.

(3)

All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and were not issued in violation of any preemptive rights, resale rights, rights of first refusal or similar rights, and are owned directly or indirectly by the Company, free and clear of all security interests, liens, encumbrances, equities or claims.

(4)

Except for the Rights (as hereinafter defined) issued pursuant to the Rights Agreement (as hereinafter defined) and awards of restricted Common Shares pursuant to the Company’s equity compensation and/or employee stock purchase plans, there are no options, warrants or other rights, agreements, arrangements or commitments to which the Company is a party or by which the Company is bound relating to the issued or unissued Common Shares of the Company. For purposes of this Agreement, “Rights” means the rights to purchase Common Shares of the Company issued pursuant to the Rights Agreement, and “Rights Agreement” means the Shareholder Protection Rights Agreement, dated as of September 23, 1997 and last amended as of February 6, 2008, by and between the Company and Mellon Investor Services LLC, setting forth the rights of the holders of Rights.

(1)

The Company has the corporate power and authority to execute and deliver the Transaction Documents to which it is a party and to carry out its obligations hereunder and thereunder (which includes the issuance of the Purchased Securities). The execution, delivery and performance by the Company of the Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company and its shareholders, and no further approval or authorization is required on the part of the Company or its shareholders. The Transaction Documents to which the Company is a party are or will be valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity (“Bankruptcy Exceptions”).

(2)

The execution, delivery and performance by the Company of the Transaction Documents to which it is a party, the consummation of the transactions contemplated hereby and thereby and compliance by the Company with any of the provisions hereof and thereof, will not violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, result in the termination of or accelerate the performance required by, or result in a right of termination or acceleration of, or result in the creation of, any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company or any Significant Subsidiary under any of the terms, conditions or provisions of (A) the certificate of incorporation, by-laws or other organizational document of the Company or any Significant Subsidiary or (B) any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which the Company or any Significant Subsidiary is a party or by which it or any Significant Subsidiary may be bound, or to which the Company or any Significant Subsidiary or any of the properties or assets of the Company or any Significant Subsidiary may be subject, or (C) subject to compliance with the statutes and regulations referred to in Section 2.2(d)(3), violate any statute, rule or regulation or any judgment, ruling, order, writ, injunction or decree applicable to the Company or any Significant Subsidiary or any of their respective properties or assets except, in the case of clauses (B) and (C), for those occurrences that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.

(3)

Other than in connection or in compliance with the provisions of the Securities Act and the securities or “blue sky” laws of the various states, to the Company’s Knowledge without inquiry, no notice to, filing with, exemption or review by, or authorization, consent or approval of, any Governmental Entity is required to be made or obtained by the Company in connection with the Purchase and the other transactions contemplated by the Transaction Documents.

(1)

The Company is a bank holding company registered under the Bank Holding Company Act of 1956 (the “BHC Act”); the Company and each of its subsidiaries have conducted their businesses in compliance with all applicable federal, state and foreign laws, orders, judgments, decrees, rules, regulations and applicable stock exchange requirements, including all laws and regulations restricting activities of bank holding companies and banking organizations, except for any noncompliance that, individually or in the aggregate, has not had and would not be reasonably expected to have a Material Adverse Effect.

(2)

The Company and each Subsidiary have all permits, licenses, authorizations, orders and approvals of, and have made all filings, applications and registrations with, any Governmental Entities that are required in order to carry on their business as presently conducted, except where the failure to have such permits, licenses, authorizations, orders and approvals or the failure to make such filings, applications and registrations, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect; and all such permits, licenses, certificates of authority, orders and approvals are in full force and effect and, to the Knowledge of the Company without inquiry, no suspension or cancellation of any of them is threatened, and all such filings, applications and registrations are current, except where such absences, suspensions or cancellations, individually or in the aggregate, have not had or would not reasonably be expected to have a Material Adverse Effect.

(1)

Since December 31, 2006, the Company has timely filed all documents required to be filed with the SEC pursuant to Sections 13(a), 14(a) and 15(d) of the Exchange Act.

(2)

Since December 31, 2006, the Company and each Subsidiary have filed all material reports, registrations and statements, together with any required amendments thereto, that it was required to file with the Board of Governors of the Federal Reserve System (the “Federal Reserve”), the FDIC, the New York State Banking Department and any other applicable federal or state securities or banking authorities, except where the failure to file any such report, registration or statement, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. As of their respective dates, each of the foregoing reports complied with all applicable rules and regulations promulgated by the Federal Reserve, the FDIC, the New York State Banking Department and any other applicable foreign, federal or state securities or banking authorities, as the case may be, except for any failures that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.

(1)

The Investor has the requisite power and authority to execute and deliver the Transaction Documents to which it is a party and to carry out its obligations hereunder and thereunder. The execution, delivery and performance by the Investor of the Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Investor, and no further approval or authorization is required on the part of the Investor. The Transaction Documents to which the Investor is a party are or will be valid and binding obligations of the Investor enforceable against the Investor in accordance with their respective terms, except as the same may be limited by Bankruptcy Exceptions.

(2)

The execution, delivery and performance by the Investor of the Transaction Documents to which it is a party, the consummation of the transactions contemplated hereby and thereby and compliance by the Investor with any of the provisions hereof and thereof, will not (A) violate, conflict with, or result in a breach of any provision of or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, accelerate the performance required by, result in a right of termination or acceleration of or result in the creation of, any lien, security interest, charge or encumbrance upon any of the properties or assets of such Investor under any of the terms, conditions or provisions of (i) its organizational documents or (ii) any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which the Investor is a party or by which it may be bound, or to which the Investor or any of the properties or assets of the Investor may be subject, or (B) subject to compliance with the statutes and regulations referred to in Section 2.3(b)(3), violate any statute, rule or regulation or any judgment, ruling, order, writ, injunction or decree applicable to the Investor or any of its properties or assets except, in the case of clauses (A)(ii) and (B), for those occurrences that, individually or in the aggregate, have not had and would not reasonably be expected to have an Investor Material Adverse Effect. “Investor Material Adverse Effect” means a material adverse effect on the ability of the Investor timely to consummate the Purchase and the other transactions contemplated by this Agreement.

(3)

Other than in connection or in compliance with the provisions of the Securities Act and the securities or “blue sky” laws of the various states, to the Investor’s Knowledge without inquiry, no notice to, filing with, exemption or review by, or authorization, consent or approval of, any Governmental Entity is required to be made or obtained by the Investor in connection with the consummation by the Investor of the Purchase and the other transactions contemplated by the Transaction Documents.

(1)

understands that the Purchased Securities have not been registered under the Securities Act and, therefore, cannot be resold unless they are registered under the Securities Act or (without limitation on the restrictions set forth in Article IV) unless an exemption from registration is available;

(2)

understands that the Purchased Securities have not been registered under any United States state securities laws;

(3)

is acquiring the Purchased Securities pursuant to an exemption from registration under the Securities Act solely for investment and not with a view to any resale or transfer of any of the Purchased Securities to any person;

(4)

confirms that it is aware of the transfer restrictions on the Purchased Securities described in Article IV and in the Memorandum and will not sell or otherwise dispose of any of the Purchased Securities, except in compliance with the registration requirements of the Securities Act and any applicable United States state securities laws or in compliance with all of the requirements of Section 4.1;

(5)

confirms that all information that the Investor has provided to the Company concerning the Investor in this Agreement or otherwise is correct and complete;

(6)

is an Accredited Investor (as that term is defined in Rule 501 under the Securities Act) and has certified to the Company the basis for qualifying as an Accredited Investor on Annex B;

(7)

in the ordinary course of its business, regularly makes investments of this type, and has such knowledge and experience in financial and business matters and in investments of this type that it is capable of (A) evaluating the merits and risks of the Purchase and of making an informed investment decision and (B) bearing the financial risks of an investment in the Purchased Securities for an indefinite period of time;

(8)

has conducted a review of the business and affairs of the Company that it considers sufficient and reasonable for purposes of making the Purchase;

(9)

has been provided the opportunity to ask questions of and receive answers from representatives of the Company concerning the terms and conditions of the Purchase and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of the information contained in the Memorandum;

(10)

has received the Memorandum, has read the Memorandum carefully, is fully familiar with and understands the contents of the Memorandum;

(11)

has read the SEC Reports carefully, is fully familiar with and understands the contents of the SEC Reports; and

(12)

has not relied on any representation or warranty in connection with the Purchase other than those contained in the Transaction Documents.

(1)

in the case of an Investor that is an institution, at any time to any direct or indirect wholly owned Subsidiary of the Investor or any mutual fund that is managed by the Investor (each, a “Permitted Transferee”), but only if the transferee agrees in writing for the benefit of the Company to be bound by the terms of this Agreement; provided that such Permitted Transferee shall be permitted to own such Purchased Securities only so long as such Permitted Transferee shall remain a direct or indirect wholly owned Subsidiary of the Investor or a mutual fund managed by the Investor; and provided, further, that no such Transfer shall relieve such Investor of its obligations under this Agreement;

(2)

at any time a Shelf Registration Statement (as defined in Section 4.3(a)(2)) shall be effective and in compliance with the Securities Act and usable for resale of the Purchased Securities, including entering into a Hedging Transaction in accordance with applicable law, as permitted by and subject to the limitations set forth in Section 4.3; and

(3)

at times or under circumstances not contemplated by clause (1) or (2) of this Section 4.1(b) in compliance with Rule 144A or Rule 144 under the Securities Act; provided that, if the Investor is an Affiliate of the Company or has been an Affiliate of the Company during the three months preceding the date of such Transfer, any such Transfer shall be subject to approval by the Company in its sole discretion, which approval may be conditioned on the receipt by the Company or its agents or representatives of such information, documentation, opinions or assurances or other agreements as the Company may determine in its sole discretion to be necessary or advisable.

Registration.

(1)

Subject to the terms and conditions of this Agreement, the Company covenants and agrees to use commercially reasonable efforts to (A) prepare and file with the SEC a Shelf Registration Statement (as hereinafter defined) covering all Registrable Securities no later than October 7, 2008, (B) cause such Shelf Registration Statement to become effective no later than December 7, 2008, and (C) keep such Shelf Registration Statement continuously effective and in compliance with the Securities Act and usable for resale of such Registrable Securities (including by filing post-effective amendments to such Shelf Registration Statement (or a new Shelf Registration Statement if the initial Shelf Registration Statement expires)) for a period from the date of its initial effectiveness until the earlier of (x) the second anniversary of the Closing Date and (y) such time as there are no Registrable Securities remaining.

(2)

Any registration pursuant to this Section 4.3(a) shall be effected by means of a shelf registration under the Securities Act (a “Shelf Registration Statement”), and any such registration (including a resale of Registrable Securities from an effective Shelf Registration Statement) shall be effected in accordance with the methods of distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act.

(3)

The Company shall not be required to effect a registration (including a resale of Registrable Securities from an effective Shelf Registration Statement) pursuant to this Section 4.3(a): (A) with respect to securities that are not Registrable Securities; or (B) if the Company has notified the Investor that in the good faith judgment of the Chief Executive Officer of the Company, it would be materially detrimental to the Company or its securityholders for such registration to be effected at such time until the Chief Executive Officer of the Company shall have withdrawn such determination; provided that the Company may not exercise its right pursuant to this clause (B) for a continuous period of more than 45 days or for more than 90 days in any calendar year.

(4)

If (A) the Shelf Registration Statement is not filed by the Company with the SEC on or prior to October 7, 2008 (the “Filing Deadline”), or (B) the Shelf Registration Statement has not become effective on or prior to the date that is 90 days after the filing of such Shelf Registration Statement with the SEC (the “Effectiveness Deadline”), then for each day following the Filing Deadline or the Effective Deadline, as applicable, until but excluding the date the Shelf Registration Statement is filed or becomes effective, respectively, the Company shall, for each such day, pay the Investor, as liquidated damages and not as a penalty, an amount equal to 0.05% of the aggregate purchase price paid by the Investor for the Registrable Securities pursuant to this Agreement. Any such payment shall be made in cash no later than five business days following the first day of the calendar month after the day with respect to which such payment is due. Notwithstanding the foregoing, in no event shall the Company be obligated to pay any liquidated damages to the Investor pursuant to this paragraph (A) in respect of the same Registrable Securities for the same period of time or (B) in an aggregate amount that exceeds 6.0% of the aggregate purchase price paid by the Investor for the Registrable Securities pursuant to this Agreement.

(1)

(A) Prepare and file with the SEC a prospectus supplement with respect to a proposed offering of Registrable Securities pursuant to an effective Shelf Registration Statement and (B) subject to this Section 4.3(c), keep such Shelf Registration Statement effective or such prospectus supplement current for the period reasonably required to complete the distribution of such Registrable Securities.

(2)

Prepare and file with the SEC such amendments and supplements to the applicable Shelf Registration Statement and the prospectus or prospectus supplement used in connection with such Shelf Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all of such Registrable Securities.

(3)

Furnish to the Investor or a Permitted Transferee and any underwriters such number of copies of the applicable Shelf Registration Statement and each such amendment or supplement thereto (including in each case all exhibits) and of a prospectus, including any preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities to be resold by them.

(4)

Register and qualify the securities covered by such Shelf Registration Statement under such other securities or Blue Sky laws of such jurisdictions in the United States as shall be reasonably requested by the Investor, a Permitted Transferee or any managing underwriter, to keep such registration or qualification in effect for so long as such Shelf Registration Statement remains in effect, and to take any other action which may be reasonably necessary to enable such seller to consummate the disposition in such jurisdictions of the securities owned by the Investor; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.

(5)

Notify the Investor at any time when a prospectus relating to any Registrable Securities is required to be delivered under the Securities Act of the happening of any event as a result of which the applicable prospectus, as then in effect, includes 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 in light of the circumstances then existing.

(6)

Give prompt written notice to the Investor:

(A)

when any Shelf Registration Statement filed pursuant to Section 4.3(a) or any amendment thereto has been filed with the SEC and when such Shelf Registration Statement or any post-effective amendment thereto has become effective;

(B)

of any request by the SEC for amendments or supplements to any Shelf Registration Statement or the prospectus included therein or for additional information;

(C)

of the issuance by the SEC of any stop order suspending the effectiveness of any Shelf Registration Statement or the initiation of any proceedings for that purpose;

(D)

of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Common Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;

(E)

of the happening of any event that requires the Company to make changes in any effective registration statement or the prospectus related to such registration statement in order to make the statements therein not misleading (which notice shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made); or

(F)

if at any time the representations and warranties of the Company contained in any underwriting agreement relating to Registrable Securities cease to be true and correct.

(7)

Use its commercially reasonable efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of any Shelf Registration Statement referred to in Section 4.3(c)(6)(C) at the earliest practicable time.

(8)

Except under the circumstances described in clause (A), (B) or (C) of Section 4.3(a)(3), upon the occurrence of any event contemplated by Section 4.3(c)(5) or 4.3(c)(6)(E), prepare and furnish to the Investor, as soon as reasonably practicable, a reasonable number of copies of a prospectus supplemented or amended so that such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the SEC thereunder and shall not include 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 in light of the circumstances then existing.

(9)

Procure the cooperation of the Company’s transfer agent in settling any offering or sale of Registrable Securities.

(10)

Cause all such Registrable Securities to be listed on each securities exchange, if any, on which Common Shares of the Company are then listed.

(11)

If requested by the Investor, a Permitted Transferee or the managing underwriter, if any, of an underwritten distribution of the Registrable Securities, include in a prospectus supplement or amendment such information as the Investor or managing underwriter, if any, may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such amendment as soon as practicable after the Company has received such request.

(12)

Timely provide to its securityholders earning statements satisfying the provisions of Section 11(a) of the Securities Act (which the Company may do by complying with Rule 158 under the Securities Act).

(1)

Neither the Investor nor any Permitted Transferees shall use any free writing prospectus (as defined in Rule 405 under the Securities Act) in connection with the sale of Registrable Securities without the prior written consent of the Company.

(2)

It shall be a condition precedent to the obligations of the Company to take any action pursuant to Section 4.3 (including the payment of liquidated damages pursuant to Section 4.3(a)(4)) that the Investor, any Permitted Transferees and their underwriters, if any, shall furnish to the Company a reasonable time before the Company’s proposed filing date for the Shelf Registration Statement such information regarding themselves, the Registrable Securities held by them and the intended method of disposition of such securities as shall be required to effect the registered offering of their Registrable Securities.

(1)

If the Investor or any Permitted Transferee has any Registrable Securities included in a Shelf Registration Statement, the Company shall indemnify the Investor, any such Permitted Transferee, each person who participates as a sales or placement agent or as an underwriter and each person, if any, that controls the Investor or such Permitted Transferee, sales or placement agent or underwriter within the meaning of the Securities Act (each, an “Investor Indemnitee”), against any losses, claims, damages or liabilities, joint or several, to which such Investor Indemnitee may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such Shelf Registration Statement or any preliminary, final or summary prospectus contained therein or furnished by the Company to any such Investor Indemnitee, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein not misleading, and will reimburse such Investor Indemnitee for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any of such documents in reliance upon and in conformity with written information furnished to the Company by such Investor Indemnitee expressly for use therein; and provided, further, that the foregoing indemnity agreement contained in this Section 4.3(g)(1) with respect to such Shelf Registration Statement or any preliminary, final or summary prospectus contained therein or furnished by the Company, or any amendment or supplement thereto, shall not inure to the benefit of any Investor Indemnitee from whom the person asserting any such losses, claims, damages or liabilities purchased Registrable Securities, where (A) prior to the written confirmation of the sale of Registrable Securities to such person (the “Applicable Time”), the Company shall have notified such Investor Indemnitee that such Shelf Registration Statement or prospectus contains an untrue statement of a material fact or omits to state therein a material fact necessary in order to make the statements therein not misleading, (B) such untrue statement or omission of a material fact was corrected in a further amendment or supplement to such Shelf Registration Statement or prospectus and such Shelf Registration Statement or prospectus was provided to such Investor Indemnitee prior to the Applicable Time, (C) such corrected Shelf Registration Statement or prospectus (excluding any document incorporated by reference therein) was not conveyed to such person at or prior to the contract for sale of the Registrable Securities to such person and (D) such loss, claim, damage or liability would not have occurred had such corrected Shelf Registration Statement or prospectus, or any amendment or supplement thereto (excluding any document incorporated by reference therein) been conveyed to such person as provided for in clause (C) above.

(2)

The Investor and each Permitted Transferee agree to, and the Company may require, as a condition to including any Registrable Securities in any Shelf Registration Statement filed pursuant to Section 4.3(a) or to entering into any underwriting agreement with respect thereto, that the Company shall have received an undertaking reasonably satisfactory to it from each underwriter named in any such underwriting agreement, severally and not jointly, to (A) indemnify and hold harmless the Company, each of its directors, each of its officers who have signed any Shelf Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act and all other holders of Registrable Securities (each, a “Company Indemnitee”), against any and all losses, claims, damages or liabilities to which any Company Indemnitee may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such Shelf Registration Statement, or any preliminary, final or summary prospectus contained therein or furnished by the Company to the Investor or such Permitted Transferee or its agent or underwriter, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by the Investor, such Permitted Transferee or such agent or underwriter expressly for use therein, and (B) reimburse such Company Indemnitee for any legal or other expenses reasonably incurred by such Company Indemnitee in connection with investigating or defending any such loss, claim, damage, liability or action.

(3)

If the indemnification provided for in Section 4.3(g)(1) or 4.3(g)(2) is unavailable to an Investor Indemnitee or Company Indemnitee (each, an “Indemnitee”) with respect to any losses, claims, damages, actions, liabilities, costs or expenses referred to therein or is insufficient to hold such Indemnitee harmless as contemplated therein, then each indemnifying party shall contribute to the amount paid or payable by such Indemnitee as a result of such losses, claims, damages, actions, liabilities, costs or expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the Indemnitee in connection with the statements or omissions that resulted in such losses, claims, damages, actions, liabilities, costs or expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and Indemnitee shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or by such Indemnitee, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 4.3(g)(3) were determined by pro rata allocation (even if the indemnifying party or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 4.3(g)(3). The amount paid or payable by an indemnified party as a result of the losses, claims, damages, actions, liabilities, costs or expenses (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such Indemnitee in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 4.3(g)(3), neither the Investor or any Permitted Transferee nor the Company shall be required to contribute any amount in excess of the amount by which the dollar amount of the proceeds received by it from the sale of any Registrable Securities (after deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten and distributed by it exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Investor’s, any Permitted Transferee’s, the Company’s and any underwriters’ obligations in this Section 4.3(g)(3) to contribute shall be several in proportion to the principal amount of Registrable Securities registered or underwritten, as the case may be, by or on behalf of them and not joint.

(1)

remain in compliance with the reporting obligations under the Exchange Act; and

(2)

so long as the Investor or such Permitted Transferee owns any Registrable Securities, furnish to the Investor or such Permitted Transferee promptly upon request a written statement by the Company as to its compliance with the reporting requirements under Exchange Act.

(A)

If to the Investor, to the person and the address indicated on the signature page to this Agreement.

If to the Company: