Exhibit 10.32


 


STANDBY PURCHASE AGREEMENT


 


This
STANDBY PURCHASE AGREEMENT (this “Agreement”), dated as of
                        ,
          , is by and among
First Mariner Bancorp, an Maryland corporation (the “Company”), and
                        
(a “Standby Purchaser”).


 


WITNESSETH:


 


WHEREAS,
the Company proposes pursuant to the Registration Statement (as defined
herein), to commence an offering to holders of its common stock (the “Common
Stock”) of record as of the close of business on
                        ,
           (the “Record Date”),
of non-transferable rights (the “Rights”) to subscribe for and purchase
additional shares of Common Stock (the “New Shares”) at a subscription price of
$                        
per share for an aggregate offering amount of up to
$                        
million (the “Subscription Price” and, such offering, the “Rights Offering”);
and


 


WHEREAS,
pursuant to the Rights Offering, the Company will distribute to each of its
shareholders of record as of the Record Date, at no charge, one Right for each
share of Common Stock held by such shareholders as of the Record Date, and each
Right will entitle the holder to purchase, for each share of Common Stock owned
as of the Record Date, New Shares at the Subscription Price (the “Basic
Subscription Privilege”); and


 


WHEREAS,
each holder of Rights who exercises in full its Basic Subscription Privilege
will be entitled to subscribe for additional shares of Common Stock not
otherwise purchased pursuant to the exercise of the Basic Subscription
Privileges up to the total number of New Shares, at the Subscription Price (the
“Over-Subscription Privilege”); and


 


WHEREAS,
in order to facilitate the Rights Offering, the Company has requested the
Standby Purchaser (as defined herein) to agree, and the Standby Purchaser has
agreed, (a) to acquire from the Company, at the Subscription Price, up to
             shares
of Common Stock (the “Standby Offering” and, together with the Rights Offering,
the “Stock Offerings”) and (b) if the Standby Purchaser is an existing
shareholder, to exercise its Basic Subscription Privilege in full and not to
exercise its Over-Subscription Privilege; and


 


NOW
THEREFORE, in consideration of the foregoing and the mutual covenants herein
contained and other good and valuable consideration, the parties hereto,
intending to be legally bound hereby, agree as follows:


 


Section 1.                                          Certain
Other Definitions.  The following terms used herein shall have
the meanings set forth below:


 


“Additional Shares” shall have the
meaning set forth in Section 2(b) hereof.


 

















 


“Affiliate” shall mean an affiliate (as
defined in Rule 12b-2 under the Exchange Act) of such Standby Purchaser;
provided that such Standby Purchaser or any of its affiliates exercises
investment authority, including, without limitation, with respect to voting and
dispositive rights with respect to such affiliate.


 


“Agent” shall have the meaning set
forth in Section 5(f) hereof.


 


“Agreement” shall have the meaning set
forth in the preamble hereof.


 


“Basic Shares” shall have the meaning set
forth in Section 2(b) hereof.


 


“Basic Subscription Privilege” shall have the
meaning set forth in the recitals hereof.


 


“Board” shall mean the Board of
Directors of the Company.


 


“Business Day” shall mean any day that is
not a Saturday, a Sunday or a day on which banks are generally closed in the
State of Maryland.


 


“Closing” shall mean the closing of
the purchases described in Section 2 hereof, which shall be held at the
offices of Kilpatrick Stockton LLP in Washington, D.C., at 10:00 a.m.,
Eastern Standard Time, on the Closing Date or at such other place and time as
shall be agreed upon by the parties hereto.


 


“Closing Date” shall mean the date of the
Closing.


 


“Commission” shall mean the United
States Securities and Exchange Commission, or any successor agency thereto.


 


“Common Stock” shall have the meaning set
forth in the recitals hereof.


 


“Company” shall have the meaning set
forth in the preamble hereof.


 


“Cure Period” shall have the meaning set
forth in Section 8(a) hereof.


 


“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission thereunder.


 


“Market Adverse Effect” shall have the
meaning set forth in Section 7(a)(iii) hereof.


 


“Material Adverse Effect” shall mean a
material adverse effect on the financial condition, or on the earnings,
financial position, operations, assets, results of operations or business of
the Company and its subsidiaries taken as a whole; provided that the meaning
shall exclude any changes from general economic, industry, market or
competitive conditions or changes in laws, rules or regulations generally
affecting Persons in the Company’s industry.


 


“New Shares” shall have the meaning set
forth in the recitals hereof.


 


2

















 


“Non-Disclosure Agreement” shall have the
meaning set forth in Section 12 hereof.


 


“Over-Subscription Privilege” shall have the
meaning set forth in the recitals hereof.


 


“Person” shall mean an individual,
corporation, partnership, association, joint stock company, limited liability
company, joint venture, trust, governmental entity, unincorporated organization
or other legal entity.


 


“Pro Rata Share” shall mean, with respect to
each shareholder of the Company as of the Record Date, such shareholder’s
ownership percentage of all issued and outstanding Common Stock as of the
Record Date.


 


“Prospectus” shall mean the final
Prospectus, including any information relating to the Rights Offering,
including the Rights and the underlying shares of Common Stock, and the
additional shares of Common Stock to be offered and sold in the Standby
Offering, that is filed with the Commission pursuant to Rule 424(b) and
deemed by virtue of Rule 430A of the Securities Act to be part of such
registration statement, each as amended, for use in connection with the
issuance of the Rights and the Rights Offering.


 


“Record Date” shall have the meaning set
forth in the recitals hereof.


 


“Rights” shall have the meaning set
forth in the recitals hereof.


 


“Rights Offering” shall have the
meaning set forth in the recitals hereof.


 


“Rights Offering Expiration Date” shall mean
                        ,
2010, provided that the Company shall have the option to extend the Rights
Offering, for any reason, until
                        ,
2010.


 


“Registration Statement” shall mean the
Company’s Registration Statement on Form S-1 (Commission File No. 333-163560)
initially filed with the Commission on December 8, 2009, together with all
exhibits thereto and any prospectus supplement relating to the Rights and the
underlying shares of Common Stock, and the additional shares of Common Stock to
be offered and sold in the Standby Offering, that is filed with the Commission
and deemed by virtue of Rule 430A of the Securities Act to be part of such
registration statement, each as amended, pursuant to which the Rights and
underlying shares of Common Stock have been registered pursuant to the
Securities Act.


 


“Securities” shall mean the New Shares
and Additional Shares that are purchased by the Standby Purchaser pursuant to Section 2(a) hereof.


 


“Securities Act” shall mean the Securities
Act of 1933, as amended, and the rules and regulations promulgated by the
Commission thereunder.


 


“Standby Offering” shall have the
meaning set forth in the recitals hereof.


 


3

















 


“Standby Purchasers” shall mean the
Standby Purchaser and certain other parties with whom the Company has entered
into Standby Purchase Agreements that are substantially similar to this
Agreement, except as described herein.


 


“Stock Offerings” shall have the
meaning set forth in the recitals hereof.


 


“Subscription Agent” shall have the
meaning set forth in Section 6(a)(iv) hereof.


 


“Subscription Price” shall have the
meaning set forth in the recitals hereof.


 


“Termination Notice” shall mean a
notice from the Company indicating that the Board, in the exercise of its good
faith judgment, has determined to terminate or suspend indefinitely the Rights
Offering contemplated hereby.


 


“Unsubscribed Shares” shall have the
meaning set forth in Section 2(a) hereof.


 


Section 2.                                          Standby
Purchase Commitment.


 


(a)                                  The Standby
Purchaser hereby agrees to purchase from the Company, and the Company hereby
agrees to sell to the Standby Purchaser, at the Subscription Price, up to
             shares
of Common Stock that remain available for issuance in the Stock Offerings after
the issuance of all shares of Common Stock validly subscribed for through the
exercise of Rights, including the exercise of all Over-Subscription Privileges,
in the Rights Offering (such remaining shares being hereinafter referred to as
the “Unsubscribed Shares”).


 


If
the Standby Purchaser is an existing shareholder, the Standby Purchaser hereby
agrees (i) to purchase from the Company, and the Company hereby agrees to
sell to the Standby Purchaser, at the Subscription Price, all of the New Shares
that will be available for purchase by the Standby Purchaser pursuant to its
Basic Subscription Privilege (“Basic Shares”) and (ii) the Standby
Purchaser agrees not to exercise, and to cause its Affiliates not to exercise,
the Over-Subscription Privilege to which such Standby Purchaser and its
Affiliates would otherwise be entitled in the Rights Offering.


 


(b)                                 In the event
there is not a sufficient number of Unsubscribed Shares remaining upon
completion of the Rights Offering (including the exercise of all
Over-Subscription Privileges) to allow the Standby Purchaser to purchase at
least             
shares pursuant to Section 2(a) (the “Minimum Shares”), subject to
the maximum number of shares of Common Stock being offered for sale in the
Stock Offerings as set forth in the Registration Statement, the Standby
Purchaser hereby agrees to purchase from the Company, and the Company hereby
agrees to sell to the Standby Purchaser, at the Subscription Price and
otherwise in accordance with this Agreement, sufficient additional shares so
that the Standby Purchaser shall have purchased the Minimum Shares.  The shares to be issued and sold to the
Standby Purchaser (other than the New Shares purchased by the Standby
Purchaser) in order that the Standby Purchaser may purchase the Minimum Shares
are hereinafter referred to as the “Additional Shares.” Provided, however, that
in no event shall the Standby Purchaser be entitled to purchase Additional
Shares in excess of the number of shares of Common Stock that would result in
the


 


4

















 


Standby
Purchaser becoming a beneficial owner (within the meaning of Section 13(d)(3) of
the Exchange Act) of 5.0% of the issued and outstanding shares of Common Stock
after giving effect to the Stock Offerings.


 


(c)                                  Payment of the
Subscription Price for the Securities shall be made to the Company by the
Standby Purchaser, on the Closing Date, against delivery of the Securities to
the Standby Purchaser, in United States dollars by means of certified or
cashier’s checks, bank drafts, money orders or wire transfers.


 


(d)                                 The Standby
Purchaser and the Company acknowledge and agree that the Company has entered
into, or contemplates entering into, one or more other Standby Purchase
Agreements with certain other parties on terms substantially similar to this
Agreement, except that they may provide for the purchase of a different number
of Basic Shares, a different maximum number of Unsubscribed Shares and a
different number of Minimum Shares.  The
Unsubscribed Shares available for issuance to the Standby Purchasers and any
Additional Shares that the Company shall have elected to issue shall be
allocated (to the extent any allocation thereof is necessary) as nearly as
possible on a pro rata basis among the Standby Purchasers based upon the number
of Securities subscribed for by each such Standby Purchaser, after giving
effect to the limitation set forth in Section 2(b).


 


Section 3.                                          Representations
and Warranties of the Company. 
The Company represents and warrants to the Standby Purchaser as
follows:


 


(a)                                  The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Maryland and has all requisite corporate power and
authority to carry on its business as now conducted.


 


(b)                                 This Agreement
has been duly and validly authorized, executed and delivered by the Company and
constitutes a binding obligation of the Company enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement
is sought in a proceeding at law or in equity).


 


(c)                                  The
Registration Statement was declared effective by the Commission on                         
and no stop order has been issued with respect thereto and no
proceedings therefore have been initiated or, to the knowledge of the Company,
threatened by the Commission, and any request on the part of the Commission for
additional information has been complied with. 
On the effective date, the Registration Statement complied in all
material respects with the requirements of the Securities Act and did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.  On the Closing Date, the
Registration Statement and the Prospectus will not include an untrue statement
of a material fact nor omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the


 


5

















 


representations
and warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or the Prospectus made in reliance upon and in
conformity with the information furnished to the Company in writing by the
Standby Purchaser for use in the Registration Statement or in the Prospectus.


 


(d)                                 All of the
Securities and New Shares will have been duly authorized for issuance prior to
the Closing, and, when issued and distributed as set forth in the Prospectus,
will be validly issued, fully paid and non-assessable; and none of the
Securities or New Shares will have been issued in violation of the preemptive
rights of any security holders of the Company arising as a matter of law or
under or pursuant to the Company’s Amended and Restated Articles of
Incorporation or Amended and Restated Bylaws, or any material agreement or
instrument to which the Company is a party or by which it is bound.


 


Section 4.                                          Representations
and Warranties of the Standby Purchaser.  The Standby Purchaser
represents and warrants to the Company as follows:


 


(a)                                  (i)                                     If the Standby
Purchaser is an individual, he or she has full power and authority to perform
his or her obligations under this Agreement.


 


(ii)                                  If the Standby
Purchaser is a corporation, the Standby Purchaser is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority to perform
its obligations under this Agreement.


 


(iii)                               If the Standby
Purchaser is a trust, the trustee has been duly appointed as trustee of the
Standby Purchaser with full power and authority to act on behalf of the Standby
Purchaser and to perform the obligations of the Standby Purchaser under this Agreement.


 


(iv)                              If the Standby
Purchaser is a partnership or limited liability company, the Standby Purchaser
is a partnership or limited liability company duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation or
organization, with full power and authority to perform its obligations under
this Agreement.


 


(b)                                 The Standby
Purchaser is acquiring his Securities for his own account, with the intention
of holding the Securities for investment and with no present intention of
participating, directly or indirectly, in a distribution of the Securities; and
he will not make any sale, transfer or other disposition of the Securities for
a period of one year from the Closing Date.


 


(c)                                  The Standby
Purchaser is familiar with the business in which the Company is engaged, and
based upon his knowledge and experience in financial and business matters, he
is familiar with the investments of the type that he is undertaking to
purchase; he is fully aware of the problems and risks involved in making an
investment of this type; and he is capable of evaluating the merits and risks
of this investment.  The Standby
Purchaser acknowledges that, prior to executing this Agreement, he has had the opportunity
to ask questions of and receive answers or obtain additional information from a
representative of the Company concerning the financial and other affairs of the
Company.


 


6

















 


(d)                                 This Agreement
has been duly and validly authorized, executed and delivered by such Standby
Purchaser and constitutes a binding obligation of such Standby Purchaser
enforceable against him in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies generally, and subject,
as to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).


 


(e)                                  None of the
Standby Purchasers are affiliates (within the meaning of Rule 405 of the
Securities Act) of one another, are not acting in concert and are not members
of a group (within the meaning of Section 13(d)(3) of the Exchange
Act) and have no current intention to act in the future in a manner that would
make them members of such a group.


 


Section 5.                                          Deliveries
at Closing.


 


(a)                                  At the Closing,
the Company shall deliver to the Standby Purchaser a certificate or
certificates representing the number of shares of Common Stock issued to the
Standby Purchaser pursuant to Section 2 hereof.


 


(b)                                 At the Closing,
the Standby Purchaser shall deliver to the Company payment in an amount equal
to the Subscription Price multiplied by the Securities purchased by such
Standby Purchaser, as set forth in Section 2(c) hereof.


 


Section 6.                                          Covenants.


 


(a)                                  Covenants.  The Company agrees as follows between the
date hereof and the earlier of the Closing Date or the effective date of any
termination pursuant to Section 8 hereof:


 


(i)                                     To use
commercially reasonable efforts to effectuate the Rights Offering;


 


(ii)                                  As soon as
reasonably practicable after the Company is advised or obtains knowledge
thereof, to advise the Standby Purchaser with a confirmation in writing, of (A) the
time when the Prospectus or any amendment or supplement thereto has been filed,
(B) the issuance by the Commission of any stop order, or of the initiation
or threatening of any proceeding, suspending the effectiveness of the
Registration Statement or any amendment thereto or any order preventing or
suspending the use of any preliminary prospectus or the Prospectus or any
amendment or supplement thereto, (C) the issuance by any state securities
commission of any notice of any proceedings for the suspension of the
qualification of the New Shares for offering or sale in any jurisdiction or of
the initiation, or the threatening, of any proceeding for such purpose, (D) the
receipt of any comments from the Commission directed toward the Registration
Statement or any document incorporated therein by reference, and (E) any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information.  The Company will use its commercially
reasonable efforts to prevent the issuance of any such order or the imposition
of any such suspension and, if any such order is issued or suspension is
imposed, to obtain the withdrawal thereof as promptly as possible;


 


7














 


(iii)          To operate the
Company’s business in the ordinary course of business consistent with past
practice;


 


(iv)          To notify, or
to cause the subscription agent for the Rights Offering (the “Subscription
Agent”) to notify, on each Friday during the exercise period of the Rights, or
more frequently if reasonably requested by the Standby Purchaser, the Standby
Purchaser of the aggregate number of Rights known by the Company or the
Subscription Agent to have been exercised pursuant to the Rights Offering as of
the close of business on the preceding Business Day or the most recent
practicable time before such request, as the case may be;


 


(v)           Not to issue
any shares of capital stock of the Company, or options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights, securities
convertible into or exchangeable for capital stock of the Company, or other
agreements or rights to purchase or otherwise acquire capital stock of the
Company, except for shares of Common Stock issuable upon exercise of the
Company’s presently outstanding stock options and shares of Common Stock
issuable under the proposed amendment to the Company’s 2004 Long Term Incentive
Plan;


 


(vi)          Not to
authorize any stock split, stock dividend, stock combination or similar transaction
affecting the number of issued and outstanding shares of Common Stock; and


 


(vii)         Not to declare
or pay any dividends on its Common Stock or repurchase any shares of Common
Stock, other than ordinary quarterly dividends, regularly declared and paid in
accordance with past practice.


 


(b)           Certain
Acquisitions.  Between the
date hereof and the Closing Date, the Standby Purchaser and its respective
Affiliates shall not acquire any shares of Common Stock; provided, however,
that the foregoing shall not restrict the acquisition of shares of Common Stock
by the Standby Purchaser or its Affiliates (i) from the Company pursuant
to Section 2 of this Agreement or (ii) from the Standby Purchaser or
any of its respective Affiliates.


 


(c)           Information.  The Standby Purchaser agrees to furnish to
the Company all information with respect to the Standby Purchaser that may be
necessary or appropriate and will make any information furnished to the Company
for the Prospectus by the Standby Purchaser not contain any untrue statement of
material fact or omit to state a material fact required to be stated in the
Prospectus or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.


 


(d)           Public
Statements.  Neither the
Company nor the Standby Purchaser shall issue any public announcement,
statement or other disclosure with respect to this Agreement or the
transactions contemplated hereby without the prior consent of the other parties
hereto, which consent shall not be unreasonably withheld or delayed, except (i) if
such public announcement, statement or other disclosure is required by
applicable law or applicable stock market regulations, in which case the
disclosing party shall consult in advance with respect to such disclosure with
the other parties to the extent reasonably practicable, or (ii) the filing
of any


 


8

















 


Schedule
13D or Schedule 13G, to which a copy of this Agreement may be attached as an
exhibit thereto.


 


(e)           Regulatory
Filing.  If the Company or the Standby
Purchaser determines a filing is or may be required under applicable law in
connection with the transactions contemplated hereunder, the Company and the
Standby Purchaser shall use commercially reasonable efforts to promptly prepare
and file all necessary documentation and to effect all applications that are
necessary or advisable under applicable law with respect to the transactions
contemplated hereunder so that any applicable waiting period shall have expired
or been terminated as soon as practicable after the date hereof.


 


Section 7.              Conditions
to Closing.


 


(a)           The obligations
of the Standby Purchaser to consummate the transactions contemplated hereunder
are subject to the fulfillment, prior to or on the Closing Date, of the
following conditions:


 


(i)            The
representations and warranties of the Company in Section 3 shall be true
and correct in all material respects as of the date hereof and at and as of the
Closing Date as if made on such date (except for representations and warranties
made as of a specified date, which shall be true and correct in all material
respects as of such specified date);


 


(ii)           Subsequent to
the execution and delivery of this Agreement and prior to the Closing Date, there
shall not have been any Material Adverse Effect;


 


(iii)          As of the
Closing Date, trading in the Common Stock shall not have been suspended by the
Commission or Nasdaq Global Market or trading in securities generally on the
Nasdaq Global Market shall not have been suspended or limited or minimum prices
shall not have been established on the Nasdaq Global Market (a “Market Adverse
Effect”);


 


(iv)          The Company
shall have received shareholder approval of the sale to the Standby Purchasers
and an amendment to the Company’s Amended and Restated Articles of
Incorporation to increase the number of shares of authorized Common Stock;


 


(v)           The Company
shall have obtained any required federal or state approvals for the Stock
Offerings on conditions reasonably satisfactory to the Company; and


 


(vi)          No
circumstances have occurred that would result in the Standby Purchaser,
individually or otherwise with any other person or entity, being required to
register as a depository institution holding company under federal or state
laws or regulations, or to submit an application, or notice, to a federal
regulatory authority.


 


(b)           The obligations
of the Company to consummate the transactions contemplated hereunder are
subject to the fulfillment, prior to or on the Closing Date, of the following
conditions:


 


9

















 


(i)            The
representations and warranties of the Standby Purchaser in Section 4 shall
be true and correct in all material respects as of the date hereof and at and
as of the Closing Date as if made as of such date (except for representations
and warranties made as of a specified date, which shall be true and correct in
all material respects as of such specified date); and


 


(ii)           The Standby
Purchaser shall have executed and delivered a lock-up agreement substantially
in the form of Exhibit A hereto.


 


(c)           The obligations
of the Company and the Standby Purchaser to consummate the transactions
contemplated hereunder in connection with the Rights Offering are subject to
the fulfillment, prior to or on the Closing Date, of the following conditions:


 


(i)            No judgment,
injunction, decree or other legal restraint shall prohibit, or have the effect
of rendering unachievable, the consummation of the Rights Offering or the
material transactions contemplated by this Agreement;


 


(ii)           No stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the Commission
for inclusion of additional information in the Registration Statement or
otherwise shall have been complied with;


 


(iii)          The New Shares
and the Securities shall have been authorized for listing on the Nasdaq Global
Market;


 


(iv)          Any applicable
waiting period shall have expired or been terminated thereunder with respect to
such purchase; and


 


(v)           The Company
must sell a minimum of $                      
million shares of Common Stock in the Stock Offerings, which amount includes purchases
by the Standby Purchasers.


 


Section 8.              Termination.


 


(a)           This Agreement
may be terminated at any time prior to the Closing Date, by the Standby
Purchaser by written notice to the Company if there is (i) a Material
Adverse Effect or (ii) a Market Adverse Effect that is not cured within
twenty-one (21) days after the occurrence thereof (the “Cure Period”), provided
that the right to terminate this Agreement after the occurrence of each
Material Adverse Effect or a Market Adverse Effect, which has not been cured
within the Cure Period, shall expire seven (7) days after the expiration
of such Cure Period.


 


(b)           This Agreement
may be terminated by the Company on one hand or by the Standby Purchaser on the
other hand, by written notice to the other party hereto:


 


10

















 


(i)            At any time
prior to the Closing Date, if there is a material breach of this Agreement by
the other party that is not cured within fifteen (15) days after the
non-breaching party has delivered written notice to the breaching party of such
breach; or


 


(ii)           At any time
after
                        ,
unless the Closing has occurred prior to such date.


 


(c)           This Agreement
may be terminated by the Company in the event:


 


(i)            The Company
determines that it is not in the best interests of the Company and its
shareholders to go forward with the Stock Offerings; or


 


(ii)           Consummation of
the Standby Offering is prohibited by law, rule or regulation.


 


(d)           The Company and
the Standby Purchaser hereby agree that any termination of this Agreement
pursuant to Section 7(a), 7(b)(ii) or (c) shall be without
liability of the Company or the Standby Purchaser.


 


Section 9.              Survival.  The representations and
warranties of the Company and the Standby Purchaser contained in this Agreement
or in any certificate delivered hereunder shall survive the Closing hereunder.


 


Section 10.            Notices.  All notices, communications
and deliveries required or permitted by this Agreement shall be made in writing
signed by the party making the same, shall specify the Section of this
Agreement pursuant to which it is given or being made and shall be deemed given
or made (a) on the date delivered if delivered by telecopy or in person, (b) on
the third (3rd) Business Day after it is mailed if mailed by registered or
certified mail (return receipt requested) (with postage and other fees prepaid)
or (c) on the day after it is delivered, prepaid, to an overnight express
delivery service that confirms to the sender delivery on such day, as follows:


 


If
to the Company:


 


First
Mariner Bancorp


1501
South Clinton Street


Baltimore,
Maryland 21224


Attention: Edwin F. Hale, Sr.


Chairman
and Chief Executive Officer


Telephone:
(410) 342-2600


Facsimile:
                        


 


11

















 


With
a copy to:


 


Kilpatrick
Stockton LLP


Suite 900,
607 14th Street, NW


Washington,
DC 20005-2018


Attention:
Edward G. Olifer, Esq.


Telephone:
(202) 508-5882


Facsimile:
(202) 504-5614


 


If
to the Standby Purchaser:


 


Attention:


Telephone:


Facsimile:


 


or
to such other representative or at such other address of a party as such party
hereto may furnish to the other parties in writing in accordance with this Section 10.


 


Section 11.            Assignment.  This Agreement will be
binding upon, and will inure to the benefit of and be enforceable by, the
parties hereto and their respective successors and assigns, including any
person to whom Securities are transferred in accordance herewith.


 


Section 12.            Entire
Agreement.  Except as
specifically set forth herein, the Company and the Standby Purchaser mutually
agree to be bound by the terms of the non-disclosure agreement dated                         
(the “Non-Disclosure Agreement”) previously executed by the Company and the
Standby Purchaser, which Non-Disclosure Agreement is hereby incorporated herein
by reference, and all information furnished by either party to the other party
or its representatives pursuant hereto shall be subject to, and the parties
shall hold such information in confidence in accordance with, the provisions of
the Non-Disclosure Agreement.  The
Company and the Standby Purchaser agree that such Non-Disclosure Agreement
shall continue in accordance with their respective terms, notwithstanding the
termination of this Agreement.  The Non-Disclosure
Agreement and this Agreement embody the entire agreement and understanding
between the parties hereto in respect of the subject matter contained
herein.  There are no restrictions,
promises, warranties, or undertakings, other than those set forth or referred
to herein or in the Non-Disclosure Agreement, with respect to the standby
purchase commitments with respect to the Securities and the New Shares.  Other than with respect to matters set forth
or referred to in the Non-Disclosure Agreement, this Agreement supersedes all
prior agreements and understandings between the parties with respect to the
subject matter of this Agreement.


 


Section 13.            Governing
Law.  This Agreement
shall be governed by and construed in accordance with the internal laws of the
State of Maryland (other than its rules of conflict of laws to the extent
the application of the laws of another jurisdiction would be required thereby).


 


Section 14.            Severability.  If any provision of this
Agreement or the application thereof to any person or circumstances is
determined by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions hereof, or the application of such


 


12

















 


provision
to persons or circumstances other than those as to which it has been held
invalid, void or unenforceable, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby, so long as the economic
or legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party.  Upon
such determination, the parties shall negotiate in good faith in an effort to
agree upon a suitable and equitable substitute provision to affect the original
intent of the parties.


 


Section 15.            Extension
or Modification of Rights Offering. 
The Company may (a) waive irregularities in the manner of exercise
of the Rights, and (b) waive conditions relating to the method (but not
the timing) of the exercise of the Rights to the extent that such waiver does
not materially adversely affect the interests of the Standby Purchaser.


 


Section 16.            Miscellaneous.


 


(a)           The Company
shall not after the date of this Agreement enter into any agreement with
respect to its securities which is inconsistent with or violates the rights
granted to the Standby Purchaser in this Agreement.


 


(b)           The headings in
this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning of this Agreement.


 


(c)           This Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original, but all of which, when taken together, shall constitute one and
the same instrument.


 


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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and
delivered as of the date first above written.


 


	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
  FIRST
  MARINER BANCORP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
   

  	
  Name: Edwin F. Hale, Sr.

  
	
   

  	
   

  	
  Title:
  Chairman and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STANDBY
  PURCHASER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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EXHIBIT A


 


LOCK-UP AGREEMENT


 


15