Exhibit 4.3


 


SUBSCRIPTION AGENT AGREEMENT


 


                              ,
2010


 


American
Stock Transfer & Trust Company, LLC


59
Maiden Lane


New
York, New York 10038


 


Ladies
and Gentlemen:


 


In
connection with your appointment as Subscription Agent in the transaction
described herein, First Mariner Bancorp (the Company), hereby confirms its
arrangements with you as follows:


 


1.                                       Rights
Offering — The Company is distributing, at no charge, to the
holders of shares of its common stock, par value $0.05 per share (“Common Stock”),
as of 5:00 p.m., Eastern Standard Time, on               ,
200         (the “Record Date”),
non-transferable subscription rights (the “Rights”) to subscribe for and
purchase shares of Common Stock (the “Rights Offering”). Each holder of record
is entitled to receive one Right for each share of Common Stock held by such
holder at the Record Date. Each Right entitles the holder thereof to subscribe
for                 
shares of Common Stock (the “Basic Subscription Privilege”) at a subscription
price of $           per full
share of Common Stock (the “Subscription Price”). Each holder of Rights who
exercises in full its Basic Subscription Privilege will be entitled, if any,
available as a result of any unexercised Rights, to subscribe for additional
shares of Common Stock at the Subscription Price pursuant to the Basic
Subscription Privilege (the “Over-Subscription Privilege”). To the extent that sufficient
Remaining Shares are not available to honor all Over-Subscription Privilege
requests, the Remaining Shares will be allocated as described in the
Prospectus.  Rights
shall cease to be exercisable at 5:00 p.m., Eastern Standard Time, on
                ,
2010, or such later date of which the Company notifies you orally and confirms
in writing (the “Expiration Date”).  The
Rights Offering will be conducted in the manner and upon the terms and
conditions set forth in the Company’s final Prospectus, dated as of                     ,
2010 (the “Prospectus”),
which is incorporated herein by reference and made a part hereof as if set
forth in full herein.


 


2.                                       Appointment
of Subscription Agent — You are hereby appointed as Subscription
Agent to effect the Rights Offering in accordance with the Prospectus. Each
reference to you in this letter is to you in your capacity as Subscription
Agent unless the context indicates otherwise.


 


3.                                       Delivery
of Documents — Enclosed herewith are the following, the receipt
of which you acknowledge by your execution hereof:


 

















 


(a)                                  a copy of the
Prospectus, attached hereto as Annex A;


 


(b)                                 the form of Rights
Certificate (with instructions), attached hereto as Annex B;


 


(c)                                  Form of
Instructions to Rights Certificate, attached hereto as Annex C; and


 


(d)                                 Form of
Letter to Shareholders who are Record Holders, attached hereto as Annex D.


 


As
soon as is reasonably practical, you shall mail or cause to be mailed to each
holder of Common Stock at the close of business on the Record Date: (i) a Rights
Certificate evidencing the Rights to which such holder is entitled, (ii) the
Subscription Documents, (iii) a Prospectus; and (iv) a return envelope
addressed to you. Prior to mailing, the Company will provide you with blank Rights
Certificates which you will prepare and issue in the names of holders of Common
Stock of record at the close of business on the Record Date and for the number
of Rights to which they are entitled. 
The Company will also provide you with a sufficient number of copies of
each of the documents to be mailed with the Rights Certificates.


 


4.                                       Subscription
Procedure —


 


(a)                                  Upon your
receipt prior to 5:00 p.m., Eastern Standard Time, on the Expiration Date
(by mail or delivery), as Subscription Agent, of (ii) any Rights
Certificate completed and endorsed for exercise, as provided on the reverse
side of the Rights Certificate, and (ii) payment in full of the
Subscription Price in U.S. funds by check, bank draft or money order payable at par (without deduction for bank service
charges or otherwise) to the order of American Stock Transfer & Trust Company, you shall as soon as practicable
after the Expiration Date, but after performing the procedures described in
subparagraphs (b) and (c) below, mail to the subscriber’s registered
address on the books of the Company certificates representing shares of Common
Stock duly subscribed for (pursuant to the Basic Subscription Privilege and the
Over-Subscription Privilege) and furnish a list of all such information to the
Company.


 


(b)                                 As soon as
practicable after the Expiration Date you shall calculate the number of shares
of Common Stock to which each subscriber is entitled pursuant to the Over-Subscription
Privilege. The Over-Subscription Privilege may only be exercised by holders who
purchase all of the shares of Common Stock available to them pursuant to the Basic
Subscription Privilege.  The shares of
Common Stock available for additional subscriptions will be those that have not
been subscribed and paid for pursuant to the Basic Subscription Privilege (the “Remaining
Shares”).  Where there are sufficient
Remaining Shares to satisfy all additional subscriptions by holders exercising
their rights under the Over-Subscription Privilege, each holder shall be
allotted the number of additional shares subscribed for. If the aggregate
number of shares of Common Stock subscribed for under the Over-Subscription
Privilege exceeds the number of Remaining Shares, the number of Remaining
Shares allotted to each participant in the Over-Subscription Privilege


 


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shall
be the product (disregarding fractions) obtained by multiplying the number of
shares requested by each shareholder through the exercise of their
over-subscription privileges by a fraction that equals (x) the number of
shares available to be issued through over-subscription privileges divided by (y) the
total number of shares requested by all subscribers through the exercise of
their over-subscription privileges.  Any
fractional shares of Common Stock to which persons exercising their Over-Subscription
Privilege would otherwise be entitled pursuant to such allocation shall be
rounded down to the nearest whole share of Common Stock.


 


(c)                                  Upon
calculating the number of shares of Common Stock to which each subscriber is
entitled pursuant to the Over-Subscription Privilege and the amount overpaid,
if any, by each subscriber, you shall, as soon as practicable, furnish a list
of all such information to the Company.


 


(d)                                 Upon
calculating the number of shares of Common Stock to which each subscriber is
entitled pursuant to the Over-Subscription Privilege and assuming payment for
the additional shares of Common Stock subscribed for has been delivered, you
shall mail, as contemplated in subparagraph (a) above, the certificates
representing the additional securities which the subscriber has been allotted.
If a lesser number of shares of Common Stock is allotted to a subscriber under
the Over-Subscription Privilege than the subscriber has tendered payment for,
you shall remit the difference to the subscriber without interest or deduction
at the same time as certificates representing the securities allotted pursuant
to the Over-Subscription Privilege are mailed.


 


(e)                                  Funds received
by you pursuant to the Basic Subscription Privilege and the Over-Subscription
Privilege shall be held by you in a segregated account. Upon mailing
certificates representing the securities and refunding subscribers for
additional shares subscribed for but not allocated, if any, you shall promptly
remit to the Company all funds received in payment of the Subscription Price
for shares sold in the Rights Offering.


 


5.                                       Defective
Exercise of Rights Lost Rights Certificates — The Company shall have
the absolute right to reject any defective exercise of Rights or to waive any
defect in exercise. Unless requested to do so by the Company, you shall not be
under any duty to give notification to holders of Rights Certificates of any
defects or irregularities in subscriptions. Subscriptions will not be deemed to
have been made until any such defects or irregularities have been cured or waived
within such time as the Company shall determine. You shall as soon as
practicable return Rights Certificates with the defects or irregularities which
have not been cured or waived to the holder of the Rights. If any Rights
Certificate is alleged to have been lost, stolen or destroyed, you should
follow the same procedures followed for lost stock certificates representing
Common Stock you use in your capacity as transfer agent for the Company’s
Common Stock.


 


6.                                       Delivery — You shall
deliver to the subscribers who have duly exercised Rights at their registered
addresses certificates representing the securities subscribed for as instructed
on the reverse side of the Rights Certificates.


 


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7.                                       Reports — You shall
notify the Company by e-mail on or before the close of business each business
day during the period commencing 5 business days after the mailing of the
Rights and ending at the Expiration Date (a “daily notice”), of (i) the
number of Rights exercised on the day covered by such daily notice, (ii) the
number of Rights for which defective exercises have been received on the day
covered by such daily notice, and (iii) the cumulative total of the
information set forth in clauses (i) through (ii) above.  At or before 5:00 p.m., Eastern Standard
Time, on the first NASDAQ Global Market (“NGM”) trading day following the
Expiration Date you shall certify in writing to the Company the cumulative
total through the Expiration Date of all the information set forth in clauses (i) through
(ii) above.  You shall also maintain
and update a listing of holders who have fully or partially exercised their
Rights, holders who have transferred their Rights and their transferees, and
holders who have not exercised their Rights. 
You shall provide the Company or its designees with such information
compiled by you pursuant to this paragraph 8 by e-mail.


 


8.                                       Future
Instructions — With respect to notices or instructions to be  provided by the Company hereunder, you may rely and act on any
written instruction signed by any one or more of the following authorized
officers or employees of the Company:


 


Edwin
F. Hale, Sr., Chairman and Chief Executive Officer


Mark
A. Keidel, President and Chief Operating Officer


Paul
Susie, Senior Vice President and Chief Financial Officer


 


9.                                       Payment  of Expenses — The Company
will pay you compensation for acting in your capacity as Subscription Agent
hereunder in the amount of $                      
plus your reasonable out-of-pocket expenses. The Company will pay an additional
fee equal to one-third of the Subscription Agent fee for each extension of the
Offering, plus any out-of-pocket expenses associated with such extension.


 


Fees
will be paid by:


 


First
Mariner Bancorp


1501
S. Clinton Street


Baltimore,
Maryland 21224


Attention:
Paul Susie


Telephone:
(410) 342-2600


Telecopy:
(410) 558-4496


Email:  psusie@1stmarinerbank.com


 


10.                                 Counsel — You may
consult with counsel satisfactory to you, which may be counsel to the Company,
and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by you hereunder in good faith and in accordance
with such advice an opinion of such counsel.


 


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11.                                 Indemnification — The Company
covenants and agrees to indemnify and hold you harmless against any costs,
expenses (including reasonable fees of legal counsel), losses or damages, which
may be paid, incurred or suffered by or to which you may become subject arising
from or out of, directly or indirectly, any claim or liability resulting from
your actions as Subscription Agent pursuant hereto; provided that such covenant
and agreement does not extend to such costs, expenses, losses and damages incurred
or suffered by you as a result of, or arising out of, your own gross
negligence, misconduct or bad faith or that of any employees, agents or
independent contractors used by you in connection with performance of your
duties as Subscription Agent hereunder.


 


12.                                 Notices — Unless
otherwise provided herein, all reports, notices and other communications
required or permitted to be given hereunder shall be in writing and delivered
by hand or confirmed telecopy or by first class U.S. mail, postage prepaid, shall
be deemed given if by hand or telecopy, upon receipt or if by U.S. mail, three
business days after deposit in the U.S. mail and shall be addressed as follows


 


(a)                                  If to the
Company, to:


 


First
Mariner Bancorp


1501
S. Clinton Street


Baltimore,
Maryland 21224


Attention:


Telephone:
(410) 342-2600


Telecopy:
(410) 558-4496


 


(b)                                 If to you, to:


 


American
Stock Transfer & Trust Company, LLC


59
Maiden Lane


New
York, N.Y. 10038


Attention:
George Karfunkel


Telephone:
(718) 921-8200


Telecopy:
(718) 236-4588


 


[Signature page follows]


 


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  Yours
  truly,

  
	
   

  	
   

  
	
   

  	
  FIRST
  MARINER BANCORP

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Agreed &
Accepted:


AMERICAN
STOCK TRANSFER & TRUST COMPANY, LLC


 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


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Fee Schedule


 


Flat
Fee of $                          .


Plus
reasonable out-of-pocket expenses.


 


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