exv10w1






Exhibit 10.1




EXECUTION COPY




 





INVESTMENT AGREEMENT




Between



SEACOAST BANKING CORPORATION OF FLORIDA



and each of the



PURCHASERS NAMED HEREIN



Dated as of April 8, 2010



 









 









 











TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I PURCHASE; ESCROW; CLOSING
	 	 	2	 
	1.1. Purchase
	 	 	2	 
	1.2. Escrow; Closing
	 	 	2	 
	1.3. Contingent and Non-Contingent Shares
	 	 	3	 
	ARTICLE II REPRESENTATIONS AND WARRANTIES
	 	 	4	 
	2.1. Disclosure
	 	 	4	 
	2.2. Representations and Warranties of the Company
	 	 	5	 
	2.3. Representations and Warranties of Each Purchaser
	 	 	17	 
	ARTICLE III COVENANTS
	 	 	22	 
	3.1. Filings; Other Actions
	 	 	22	 
	3.2. Access, Information and Confidentiality
	 	 	24	 
	3.3. Waiver of Change-of-Control Rights
	 	 	25	 
	ARTICLE IV ADDITIONAL AGREEMENTS
	 	 	25	 
	4.1. Transfer Restrictions
	 	 	25	 
	4.2. Legend
	 	 	26	 
	4.3. Reservation for Issuance
	 	 	28	 
	4.4. [Reserved]
	 	 	28	 
	4.5. Indemnity
	 	 	28	 
	4.6. Exchange Listing
	 	 	30	 
	4.7. Tax Treatment of Convertible Preferred Stock
	 	 	30	 
	ARTICLE V CONDITIONS TO CLOSING; TERMINATION
	 	 	30	 
	5.1. Conditions to Each Purchaser’s Obligations
	 	 	30	 
	5.2. Conditions to Company’s Obligations
	 	 	32	 
	5.3. Release of Escrow Funds
	 	 	33	 
	5.4. Termination
	 	 	33	 
	5.5. Rescission
	 	 	33	 
	ARTICLE VI MISCELLANEOUS
	 	 	34	 
	6.1. Survival
	 	 	34	 
	6.2. Expenses
	 	 	34	 
	6.3. Amendment; Waiver
	 	 	34	 
	6.4. Counterparts and Facsimile
	 	 	34	 






i









 





TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page	 
	6.5. Governing Law
	 	 	34	 
	6.6. WAIVER OF JURY TRIAL
	 	 	34	 
	6.7. Notices
	 	 	34	 
	6.8. Entire Agreement, Etc.
	 	 	35	 
	6.9. Interpretation; Other Definitions
	 	 	36	 
	6.10. Captions
	 	 	37	 
	6.11. Severability
	 	 	37	 
	6.12. No Third Party Beneficiaries
	 	 	37	 
	6.13. Time of the Essence
	 	 	37	 
	6.14. Effectiveness
	 	 	37	 
	6.15. Public Announcements
	 	 	37	 
	6.16. Specific Performance
	 	 	38	 
	6.17. Independent Nature of Purchasers’ Obligations and Rights
	 	 	38	 
	6.18. Survival
	 	 	38	 






ii









 





LIST OF SCHEDULES AND EXHIBITS



	 	 	 

	Exhibit A-1:

	 	Preferred Stock Articles of Amendment; Series B Preferred Stock
	Exhibit A-2:

	 	Preferred Stock Articles of Amendment; Series C Preferred Stock
	Exhibit B:

	 	Escrow Agreement
	Exhibit C:

	 	Form of Registration Rights Agreement
	Exhibit D:

	 	Procedures to be Followed for an Early Non-Contingent Share Closing






iii









 







     THIS INVESTMENT AGREEMENT dated as of April 8, 2010 (this “Agreement”), by and between
Seacoast Banking Corporation of Florida, a Florida corporation (the “Company”), and each of
the respective investors set forth on the signature pages hereto as a “Purchaser”
(collectively, the “Purchasers”), is effective as provided in Section 6.14.



RECITALS:




     The Company will sell to the Purchasers, and the Purchasers will purchase from the Company, on
the terms and subject to the conditions set forth herein, shares of up to two series of mandatorily
convertible noncumulative nonvoting preferred stock of the Company, par value $.10 per share (the
“Convertible Preferred Stock”), which are convertible into shares of the Company’s common
stock, $0.10 par value per share (the “Common Stock”).



     The term “Securities” refers collectively to (i) the shares of Convertible Preferred
Stock and (ii) the shares of Common Stock into which the Convertible Preferred Stock is
convertible. When purchased, the Convertible Preferred Stock will have the terms set forth in the
respective articles of amendment to the Company’s Amended and Restated Articles of Incorporation,
as amended (the “Articles of Incorporation”) with respect to each series in the form
attached hereto as



     Exhibit A-1 and Exhibit A-2 (collectively, the “Preferred Stock Articles
of Amendment”) made a part of the Company’s Articles of Incorporation by the filing of the
Preferred Stock Articles of Amendment with the Secretary of State of the State of Florida (the
“Florida Secretary”) on the Closing Date (as defined in Section 1.2 hereto).



     The Securities are being offered and sold at an aggregate Purchase Price of $250 million, and,
subject to the conditions set forth herein, the proceeds will be held in escrow pursuant to the
Escrow Agreement attached as Exhibit B hereto (the “Escrow Agreement”) for purposes
of qualifying the Company’s bank subsidiary, Seacoast National Bank (the “Bidder” or the
“Bank”), to make one or more bids (the “Bid”) to the Federal Deposit Insurance
Corporation (“FDIC”) to acquire the assets and liabilities (the “Acquisition”) of a
bank that has been placed in receivership (the “Target Institution”). The shares of
Convertible Preferred Stock offered, less the Non-Contingent Shares (as defined below), are
referred to as the “Contingent Shares.” The Contingent Shares, if issued, will be
designated as the Company’s Series C mandatorily convertible noncumulative nonvoting preferred
stock, par value $.10 per share having an initial Conversion Price of $1.55 (the “Series C
Preferred Stock”).



     In the event the Company delivers a Notice of Non-Qualification, a Notice of Higher Bid, a
Failure to Bid Notice, a Delay Notice or an Escrow Termination Notice (each as defined in the
Escrow Agreement), then the Company and the Purchasers will complete the Purchasers’ purchase of
$50 million (the “Non-Contingent Purchase Amount”) of shares of Convertible Preferred Stock
(the “Non-Contingent Shares”). Each such Purchaser has indicated to the Company the number
of Non-Contingent Shares it intends to purchase (the “Non-Contingent Allocation”). The
Non-Contingent Shares will be designated as the Company’s Series B mandatorily convertible noncumulative nonvoting preferred stock, par
value $.10 per share having an initial Conversion Price of $1.45 (the “Series B Preferred
Stock”).



 









 





     The terms of the Series B Preferred Stock and the Series C Preferred Stock, if issued, will be
identical except for the Conversion Price and Conversion Ratio (each, as defined in the respective
Preferred Stock Articles of Amendment.)



     NOW, THEREFORE, in consideration of the premises, and of the representations, warranties,
covenants and agreements set forth herein, the parties, intending to be legally bound, agree as
follows:



ARTICLE I




PURCHASE; ESCROW; CLOSING



     1.1. Purchase. On the terms and subject to the conditions set forth herein, each
Purchaser will purchase from the Company, and the Company will sell to each such Purchaser, the
number of shares of Convertible Preferred Stock and at the purchase price per share (the “Price
per Share”) and the total purchase price (the “Purchase Price”) set forth on such
Purchaser’s signature page hereto.



     1.2. Escrow; Closing.




     (a) Upon the execution of this Agreement by each Purchaser and the Company, (i) each
Purchaser has deposited directly by wire transfer the applicable Purchase Price with
SunTrust Bank, as Escrow Agent (the “Escrow Agent”), pursuant to that certain
Escrow Agreement (in the form attached hereto as Exhibit B) among the Purchasers,
the Company and the Escrow Agent (as it may be amended from time to time, the “Escrow
Agreement”) and (ii) the Company has issued instructions to Continental Stock
Transfer and Trust Company, the Company’s transfer agent (the “Transfer Agent”)
authorizing the issuance to each Purchaser of the shares of Convertible Preferred Stock
specified on each such Purchaser’s signature page hereto concurrent with the Escrow
Agent’s release of the Purchase Price to the Company pursuant to the Escrow Agreement.




     (b) As specified in the Escrow Agreement and on the dates specified therein, the
Escrow Agent shall release the applicable Purchase Price to the Company, and if
applicable return the applicable contingent portions of the Purchase Price to the
respective Purchaser, and the Transfer Agent shall issue the applicable shares of
Convertible Preferred Stock to each Purchaser. The release of funds to the Company and
the concurrent issuance of shares of Convertible Preferred Stock to the Purchasers shall
be referred to herein as the “Closing” and the date of the Closing shall be
referred to herein as the “Closing Date.”




     (c) If any Purchaser is prohibited from consummating its purchase of shares of
Convertible Preferred Stock on other than a delivery-versus payment (“DVP”) basis
and such Purchaser has indicated to the Company in writing (by marking such Purchaser’s
signature page hereto or otherwise) that such Purchaser is relying on this Section 1.2(c)
instead of on Sections 1.2(a), (b) and (d) (in such event, such Purchaser shall be
referred to in certain provisions hereof as a “Section 1.2(c) Purchaser”),



-2-









 






Section 1.2(a), Section 1.2(b) and Section 1.2(d) shall not apply and shall have no force
or effect with respect to a Section 1.2(c) Purchaser, and this Section 1.2(c) shall apply
instead. This Section 1.2(c) shall not apply and shall have no force or effect with
respect to any Purchaser that is not a Section 1.2(c) Purchaser. If a Purchaser is a
Section 1.2(c) Purchaser, then not later than 4:00 p.m. (New York City time) on the
Closing Date designated by the Company to such Purchaser in writing as far in advance as
practicable but in any event at least one business day prior to such Closing Date (i)
such Purchaser shall pay its Purchase Price by wire transfer of funds immediately
available to the Company to an account designated by the Company and (ii) the Company
shall issue instructions to the Transfer Agent to issue, in certificated form prior to
and in consideration of payment in full of the Purchase Price by the Purchaser on the
same business day, the shares of Convertible Preferred Stock specified on such
Purchaser’s signature page hereto concurrent with such Purchaser’s payment of its
Purchase Price to the Company; provided, however, that if such Purchaser requires
physical certificates, then the Company shall instruct the Transfer Agent to deliver
certificates representing the shares of Convertible Preferred Stock to such Purchaser
prior to such Purchaser’s payment of its Purchase Price to the Company.




     (d) It is understood that, with respect to CapGen Capital Group III LP
(“CapGen” and a “Section 1.2(d) Purchaser”), such Purchaser is relying on
this Section 1.2(d) instead of on Sections 1.2(a), (b) and (c) and Section 1.2(a),
Section 1.2(b) and Section 1.2(c) shall not apply and shall have no force or effect with
respect to such Purchaser, and this Section 1.2(d) shall apply instead. This Section
1.2(d) shall not apply and shall have no force or effect with respect to any Purchaser
other than CapGen. CapGen will as soon as reasonably practicable and not later than 10
days following the receipt of necessary regulatory approvals pay its Purchase Price for
the Non-Contingent Shares (if only Non-Contingent Shares are being sold hereunder), and
not later than 10 days following the later of (x) the receipt of necessary regulatory
approvals and (y) notice from the Company that the Bidder is the winning Bidder on the
Acquisition pay its Purchase Price for the Contingent Shares and Non-Contingent Shares
(if Contingent Shares and Non-Contingent Shares are being sold concurrently hereunder),
in each case by wire transfer of immediately available funds to the Company.




     (e) Notwithstanding anything to the contrary contained in this Agreement, if the
Company shall decide to close the offering of Non-Contingent Shares prior to any Closing with respect to Contingent Shares the procedures set forth in
Exhibit D shall apply.



     1.3. Contingent and Non-Contingent Shares. The total Purchase Price specified on the
Purchaser’s signature page is the total purchase price for the Contingent Shares and Non-Contingent
Shares subscribed irrevocably by the Purchaser hereunder. If a Purchaser has given written
direction on the signature page of this Agreement or has provided a letter of direction executed by
the Purchaser and the Company that it elects not to purchase Non-Contingent Shares, then such
Purchaser shall have no obligation to purchase Non-Contingent Shares and the Purchase Price for the
Non-Contingent Shares shall be zero, and all its funds held by the Escrow



-3-









 




Agent shall be applied or refunded in accordance with the Escrow Agreement. The Non-Contingent Shares will be sold by the
Company regardless of whether the Company is qualified to make a bid or is the winning bidder to
the FDIC for an acquisition of the Target Institution. The portion of the total Purchase Price
applicable to the Contingent Shares shall be refunded to each Purchaser as provided in the Escrow
Agreement in the event the Company delivers a Notice of Non-Qualification, a Notice of Higher Bid,
a Failure to Bid Notice, a Delay Notice or an Escrow Termination Notice (each as defined in the
Escrow Agreement). The Purchase Price for the Non-Contingent Shares shall be retained in Escrow
and be applied to purchase the Non-Contingent Shares.




ARTICLE II




REPRESENTATIONS AND WARRANTIES



     2.1. Disclosure.




     (a) On or prior to April 6, 2010, the Company delivered to the Purchasers and
Purchasers delivered to the Company a schedule (a “Disclosure Schedule”) setting
forth disclosures either in response to an express disclosure requirement contained
herein or as an exception to one or more representations or warranties contained in
Section 2.2 with respect to the Company, or in Section 2.3 with respect to any Purchaser,
or to one or more covenants contained in Article III.




     (b) As used in this Agreement, any reference to any fact, change, circumstance or
effect being “material” with respect to the Company means such fact, change, circumstance
or effect is material in relation to the business, assets, results of operations or
financial condition of the Company and the Company’s subsidiaries (“Company
Subsidiaries”) taken as a whole. As used in this Agreement, the term “Material
Adverse Effect” means any circumstance, event, change, development or effect that,
individually or in the aggregate, (1) is material and adverse to the business, assets,
results of operations, financial condition or prospects of the Company and the
Company Subsidiaries taken as a whole or (2) would materially impair the ability of
the Company to perform its obligations under this Agreement or to consummate the Closing;
provided, however, that in determining whether a Material Adverse Effect has occurred,
there shall be excluded any effect to the extent resulting from the following: (A)
changes, after the date hereof, in U.S. generally accepted accounting principles
(“GAAP”) or regulatory accounting principles generally applicable to banks or
their holding companies, (B) changes, after the date hereof, in applicable laws, rules
and regulations or interpretations thereof by Governmental Entities (as defined below),
(C) actions or omissions of the Company expressly required by the terms of this Agreement
or taken with the prior written consent of the Purchasers, (D) changes, after the date
hereof, in general economic, monetary or financial conditions, including changes in
prevailing interest rates, credit markets, secondary mortgage market conditions or
housing sales and pricing trends, (E) changes in the market price or trading volumes of
the Common Stock or the Company’s other securities (but not the underlying causes of such
changes), (F) changes in global or national political conditions, including the outbreak
or escalation of war or acts of terrorism, and (G) the



-4-









 






public disclosure of this Agreement or the transactions contemplated hereby; except, with respect to clauses (A),
(B), (D) and (F), to the extent that the effects of such changes have a disproportionate
effect on the Company and the Company Subsidiaries, taken as a whole, relative to other
similarly situated banks, savings associations or their holding companies generally.




     (c) “Previously Disclosed” with regard to (1) a party means information set
forth on its Disclosure Schedule and (2) the Company means information publicly disclosed
by the Company in (A) its Annual Report on Form 10-K for the fiscal year ended December
31, 2009, as filed by it with the Securities and Exchange Commission (“SEC”) (the
“Company 10-K”), (B) its Preliminary Proxy Statement on Schedule 14A, as filed by
it with the SEC on March 22, 2010, as the same may be amended to authorize additional
shares of Common Stock and/or to approve the issuance of the Common Stock upon conversion
of the Convertible Preferred Stock, (C) any Current Report on Form 8-K filed or furnished
by it with the SEC since January 1, 2010 available prior to the date hereof or (D) the
Form 13-D filed by CapGen and its affiliates on April 1, 2010.



     2.2. Representations and Warranties of the Company. The Company represents and
warrants to each Purchaser, as of the date hereof and as of the Closing Date (except to the extent
made only as of a specified date in which case as of such date), that:




     (a) Organization and Authority.




     (1) The Company is a corporation duly organized and validly existing under the
laws of the State of Florida, is duly qualified to do business and is in good standing in all jurisdictions where its ownership or leasing of property
or the conduct of its business requires it to be so qualified and where failure to
be so qualified would have a Material Adverse Effect, and has the corporate power
and authority to own its properties and assets and to carry on its business as it is
now being conducted. The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (“BHC Act”). The Company
has furnished to Purchaser true, correct and complete copies of the Articles of
Incorporation and bylaws as in effect on March 31, 2010.



     (2) Each Company Significant Subsidiary is duly organized and validly existing
under the laws of its jurisdiction of organization, is duly qualified to do business
and is in good standing in all jurisdictions where its ownership or leasing of
property or the conduct of its business requires it to be so qualified and where
failure to be so qualified would have a Material Adverse Effect, and has the
corporate power and authority and governmental authorizations to own its properties
and assets and to carry on its business as it is being conducted. As used herein,
(i) “Subsidiary” means, with respect to any person, corporation,
partnership, joint venture, limited liability company or other entity (1) of which
such person or a subsidiary of such person is a general partner or (2) at least a
majority of the securities or other interests, which by their terms, have ordinary
voting power to elect a majority of the board of directors or persons performing



-5-









 






similar functions with respect to such entity is directly or indirectly owned by
such person; (ii) “Company Subsidiary” means any Subsidiary of the Company;
(iii) “Company Significant Subsidiary” means any Significant Subsidiary of
the Company; and (iv) “Significant Subsidiary” means, with respect to any
person, any Subsidiary that would constitute a “significant Subsidiary” of such
person within the meaning of Rule 1-02 of Regulation S-X of the SEC. The Bank is
duly organized and validly existing as a national banking association, and its
deposit accounts are insured up to applicable limits by the FDIC.




          (b) Capitalization. The Company has the capitalization set forth on
Schedule 2.2(b). 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 pre-emptive rights, resale rights, rights of
first refusal or similar rights. No bonds, debentures, notes or other indebtedness
having the right to vote on any matters on which the stockholders of the Company may vote
are issued and outstanding. There are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of the
Securities. Except as Previously Disclosed, there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever relating
to, or securities or rights convertible into, or exercisable or exchangeable for, any
shares of capital stock of the Company, or contracts, commitments, understandings or
arrangements by which the Company is or may become bound to issue additional shares of
capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any shares of capital stock of the
Company. Except as Previously Disclosed with respect to registration rights granted to
CapGen and the U.S. Department of the Treasury and the registration rights granted under
this Agreement, there are no agreements or arrangements under which the Company is
obligated to register the sale of any of their securities under the Securities Act.
Other than repurchase agreements entered into in the ordinary course of the Bank’s
business, there are no outstanding securities of the Company or which contain any
provisions requiring the Company to redeem or repurchase such securities, and there are
no contracts, commitments, understandings or arrangements by which the Company is bound
to redeem a security of the Company.




          (c) Company Subsidiaries. Exhibit 21 to the Company’s Annual Report on Form
10-K for the year ended December 31, 2009 sets forth a list of the Company Subsidiaries,
including the Company’s Significant Subsidiaries, which were required to be set forth by
SEC rules in such exhibit. Except for the statutory trusts established by the Company
and that have issued and outstanding trust preferred securities, the Company owns,
directly or indirectly, all of the issued and outstanding shares of capital stock of or
all other equity interests in each of the Company Subsidiaries, free and clear of any
liens, charges, adverse rights or claims, pledges, covenants, title defects, security
interests and other encumbrances of any kind (“Liens”), and all of such shares or
equity interests are duly authorized and validly issued and are fully paid, nonassessable
and free of preemptive rights, with no personal liability attaching to the ownership
thereof. No Company Subsidiary has or is bound by any outstanding



-6-









 






subscriptions, options, warrants, calls, commitments or agreements of any character calling for the
purchase or issuance of any shares of capital stock, any other equity security or any
voting debt or any securities representing the right to purchase or otherwise receive any shares of capital stock, any other equity security or any voting debt of such Company
Subsidiary.




     (d) Authorization.




     (1) The Company has the corporate power and authority to enter into this
Agreement, the Escrow Agreement, the Registration Rights Agreement and to establish
the Series B Preferred Stock and the Series C Preferred Stock and to enter into such
other transaction documents, instruments and agreements as may be necessary and
appropriate and to carry out its obligations hereunder and under such other
transaction documents, instruments and agreements, subject, in the case of the
conversion (the “Conversion”) of the Convertible Preferred Stock into Common Stock, to the prior approval of the Company’s
stockholders of (i) the Conversion for purposes of Rule 5635 of the Nasdaq Stock
Market Rules and (ii) the authorization of additional shares of Common Stock by
amendment of the Company’s Articles of Incorporation to approve the increase in the
number of authorized shares of Common Stock to permit the Conversion in full and for
general corporate purposes (the “Stockholder Approvals”). The execution,
delivery and performance of this Agreement by the Company and the consummation of
the transactions contemplated hereby have been duly authorized by the Company’s
board of directors (the “Board of Directors”), subject, with respect to the
Conversion and the issuance of the Common Stock issuable upon Conversion, to the
Stockholder Approvals. This Agreement has been duly and validly executed and
delivered by the Company and, assuming the due authorization, execution and delivery
by each Purchaser, is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms (except as enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws of general applicability relating to or affecting
creditors’ rights or by general equity principles). Other than the Stockholder
Approvals with respect to the Conversion and the issuance of the Common Stock
issuable upon Conversion, no other corporate proceedings are necessary for the
execution and delivery by the Company of this Agreement, the performance by it of
its obligations hereunder or the consummation by it of the transactions contemplated
hereby.



     (2) Neither the execution and delivery by the Company of this Agreement, the
Escrow Agreement, the Registration Rights Agreement, nor the consummation of the
transactions contemplated hereby, nor compliance by the Company with any of the
provisions hereof (including the conversion provisions of the Convertible Preferred
Stock), will (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, or result in the
loss of any benefit or creation of any right on the part of any third party under,
or accelerate the performance required by, or result



-7-









 






in a right of termination or
acceleration of, or result in the creation of any Lien upon any of the material
properties or assets of the Company or any Company Subsidiary under any of the
terms, conditions or provisions (i) of the Company’s Articles of Incorporation or
bylaws or the articles of association, charter, bylaws or other governing instrument
of any Company Significant Subsidiary, subject in the case of the authorization and
issuance of the shares of Common Stock to be issued on conversion of the Convertible
Preferred Stock to be purchased under this Agreement, to the receipt of the
Stockholder Approvals or (ii) any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which the Company or
any Company Significant Subsidiary is a party or by which it may be bound, or to which the Company or any Company
Significant Subsidiary or any of the properties or assets of the Company or any
Company Subsidiary may be subject, or (B) subject to compliance with the statutes
and regulations referred to in Section 2.2(e) and the Nasdaq Marketplace Rules,
violate any law, statute, ordinance, rule, regulation, permit, concession, grant,
franchise or any judgment, ruling, order, writ, injunction or decree applicable to
the Company or any Company Subsidiary or any of their respective properties or
assets, except in the case of clauses (A)(ii) and (B) for such violations, conflicts
and breaches as would not reasonably be expected to have a Material Adverse Effect.
The issuance and sale of the shares of Convertible Preferred Stock hereunder does
not contravene the rules and regulations of Nasdaq Global Select Market.




          (e) Governmental Consents. Other than the securities or blue sky laws of
the various states and the authorization for listing on the Nasdaq Global Select Market
of the shares of Common Stock into which the Convertible Preferred Stock is convertible,
no material notice to, registration, declaration or filing with, exemption or review by,
or authorization, order, consent or approval of, any court, administrative agency or
other governmental authority, whether federal, state, local or foreign, or any applicable
industry self-regulatory organization (each, a “Governmental Entity”), or
expiration or termination of any statutory waiting period, is necessary for the
consummation by the Company of the sale of the Securities contemplated by this Agreement;
provided, however, the FDIC has not approved the Company to make a Bid for the
Acquisition of the Target Institution and no Governmental Entity has approved the
Acquisition.




          (f) Financial Statements. Each of the consolidated balance sheets of the
Company and the Company Subsidiaries and the related consolidated statements of income,
stockholders’ equity and cash flows, together with the notes thereto (collectively, the
“Company Financial Statements”), included in any Company Report filed with the
SEC after December 31, 2009 and prior to the date hereof, (1) has been prepared from, and
are in accordance with, the books and records of the Company and the Company
Subsidiaries, (2) complied as to form, as of their respective date of filing with the
SEC, in all material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, (3) have been prepared
in accordance with GAAP applied on a consistent basis during the periods involved and (4)
present fairly in all material respects the consolidated financial



-8-









 






position of the Company and the Company Subsidiaries as of the dates set forth therein and the
consolidated results of operations, changes in stockholders’ equity and cash flows of the
Company and the Company Subsidiaries for the periods stated therein, subject, in the case
of any unaudited financial statements, to normal recurring year-end adjustments, which
would not be material, individually or in the aggregate.




     (g) Reports.




     (1) Since December 31, 2008, the Company and each Company Subsidiary has filed
all material reports, registrations, documents, filings, statements and submissions,
together with any amendments thereto, that it was required to file with any
Governmental Entity (the foregoing, collectively, the “Company Reports”) and
has paid all material fees and assessments due and payable in connection therewith.
As of their respective dates of filing, the Company Reports complied in all material
respects with all statutes and applicable rules and regulations of the applicable
Governmental Entities. To the knowledge of the Company, as of the date hereof,
there are no outstanding comments from the SEC or any other Governmental Entity with
respect to any Company Report. In the case of each such Company Report filed with
or furnished to the SEC, such Company Report did not, as of its date or if amended
prior to the date hereof, as of the date of such amendment, contain an untrue
statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements made in it, in light of the
circumstances under which they were made, not misleading and complied as to form in
all material respects with the applicable requirements of the Securities Act of
1933, as amended, and the SEC’s rules and regulations thereunder (the
“Securities Act”) and the Securities Exchange Act of 1934, as amended, and
the SEC’s rules and regulations thereunder (the “Exchange Act”). With
respect to all other Company Reports, the Company Reports were complete and accurate
in all material respects as of their respective dates, as amended. Since January 1,
2009, 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 or pursuant to the
Securities Act.




     (2) The records, systems, controls, data and information of the Company and the
Company Subsidiaries are recorded, stored, maintained and operated under means that
are under the exclusive ownership and direct control of the Company or the Company
Subsidiaries or their accountants (including all means of access thereto and
therefrom), except for any non-exclusive ownership and non-direct control that would
not reasonably be expected to have a material adverse effect on the system of
internal accounting controls described below in this Section 2.2(g). Except as may
have been Previously Disclosed, the Company (A) has implemented and maintains
disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange
Act) to ensure that material information relating to the Company, including the
consolidated Company Subsidiaries, is made known to the chief executive officer and
the chief financial officer of the Company by others within those entities, and (B)
has disclosed,



-9-









 






based on its most recent evaluation prior to the date hereof, to the Company’s outside auditors and the audit committee of the Board of Directors (x) any
significant deficiencies and material weaknesses in the design or operation of
internal controls over financial reporting (as defined in Rule 13a-15(f) of the
Exchange Act) that are reasonably likely to adversely affect the Company’s ability
to record, process, summarize and report financial information and (y) any fraud,
whether or not material, that involves management or other employees who have a
significant role in the Company’s internal controls over financial reporting.




          (h) Properties and Leases. Except as would not reasonably be expected to
have a Material Adverse Effect, the Company and the Company Subsidiaries have good and
marketable title to all real properties and all other properties and assets owned by
them, in each case free from Liens that would affect the value thereof or interfere with
the use made or to be made thereof by them. Except as would not reasonably be expected
to have a Material Adverse Effect, the Company and the Company Subsidiaries hold all
leased real or personal property under valid and enforceable leases with no exceptions
that would interfere with the use made or to be made thereof by them.




          (i) Taxes. (1) Each of the Company and the Company Subsidiaries has (x)
duly and timely filed (including pursuant to applicable extensions granted without
penalty) all material Tax Returns required to be filed by it and such Tax Returns are
true and complete in all material respects and (y) paid in full all material Taxes due or
made adequate provision in the financial statements of the Company (in accordance with
GAAP) for any such Taxes, whether or not shown as due on such Tax Returns; (2) no
material deficiencies for any Taxes have been proposed, asserted or assessed in writing
against or with respect to any Taxes due by or Tax Returns of the Company or any of the
Company Subsidiaries which deficiencies have not since been resolved, except for Taxes
proposed, asserted or assessed that are being contested in good faith by appropriate
proceedings and for which reserves adequate in accordance with GAAP have been provided;
(3) there are no material Liens for Taxes upon the assets of either the Company or the
Company Subsidiaries, except for statutory Liens for current Taxes not yet due or Liens
for Taxes that are being contested in good faith by appropriate proceedings and for which
reserves adequate in accordance with GAAP have been provided; and (4) none of the Company
or any Company Subsidiary has engaged in any transaction that is a “listed transaction”
for federal income tax purposes within the meaning of Treasury Regulations section
1.6011-4, which has not yet been the subject of an audit that has been completed and
resolved. The issuance of the Convertible Preferred Stock purchased from the Company by
all Purchasers pursuant to this Agreement will result in the Company undergoing an
ownership change for purposes of Section 382 of the Code. For purposes of this
Agreement, “Taxes” shall mean all taxes, charges, levies, penalties
or other assessments imposed by any United States federal, state, local or foreign taxing
authority, including any income, excise, property, sales, transfer, franchise, payroll,
withholding, social security or other taxes, together with any interest, penalties, addition to tax, or additional amount attributable thereto, any
liability attributable to the foregoing as a transferee and any payments made or owing to
any other person measured by such taxes, charges, levies, penalties



-10-









 






or other assessment,
whether pursuant to a tax indemnity agreement, tax sharing payment or otherwise (other
than pursuant to commercial agreements or Benefit Plans). For purposes of this
Agreement, “Tax Return” shall mean any return, report, information return or
other document (including any related or supporting information) required to be filed
with any taxing authority with respect to Taxes, including all information returns
relating to Taxes of third parties, any claims for refunds of Taxes and any amendments or
supplements to any of the foregoing.




     (j) Absence of Certain Changes. Since December 31, 2009, (1) the Company
and the Company Subsidiaries have conducted their respective businesses in all material
respects in the ordinary course, consistent with prior practice, other than seeking to
participate in a bid to the FDIC for the Target Institution and the offer and potential
sale and issuance of the Contingent Shares and the Non-Contingent Shares, (2) except for
publicly disclosed ordinary dividends on the Common Stock and outstanding preferred stock
of the Company, the Company has not made or declared any distribution in cash or in kind
to its stockholders or issued or repurchased any shares of its capital stock or other
equity interests and (3) no event or events have occurred that has had or would
reasonably be expected to have a Material Adverse Effect.




     (k) No Undisclosed Liabilities. Neither the Company nor any of the Company
Subsidiaries has any liabilities or obligations of any nature (absolute, accrued,
contingent or otherwise) which are not properly reflected or reserved against in the
Company Financial Statements to the extent required to be so reflected or reserved
against in accordance with GAAP, except for (1) liabilities that have been Previously
Disclosed or have arisen since December 31, 2009 in the ordinary and usual course of
business and consistent with past practice, (2) contractual liabilities under (other than
liabilities arising from any breach or violation of) agreements Previously Disclosed or
not required by this Agreement to be so disclosed and (3) liabilities that have not had
and would not reasonably be expected to have a Material Adverse Effect.




     (l) Offering of Securities. Neither the Company nor any person acting on
its behalf has taken any action (including any offering of any securities of the Company
under circumstances which would require the integration of such offering with the
offering of any of the Securities to be issued pursuant to this Agreement under the
Securities Act), that has caused or would cause the offering, issuance or sale of any of
the Securities to the Purchasers pursuant to this Agreement to be subject to the
registration requirements of the Securities Act. Neither the Company nor any person
acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in
connection with any offer or sale of the Securities.




     (m) Status of Securities. The shares of Convertible Preferred Stock (upon
filing of the related Preferred Stock Articles of Amendment with the Florida Secretary)
to be issued pursuant to this Agreement have been duly authorized by all necessary
corporate action. When issued and sold against receipt of the consideration therefor as
provided in this Agreement, such shares of Convertible Preferred Stock will be validly



-11-









 






issued, fully paid and nonassessable and will not subject the holders thereof to personal
liability. The shares of Common Stock issuable upon the Conversion of the Convertible
Preferred Stock, if any, will, upon receipt of the Stockholder Approvals and the filing
of the Articles of Amendment to the Company’s Articles of Incorporation with the Florida
Secretary to increase the number of shares of Common Stock authorized, have been duly
authorized by all necessary corporate action and when so issued upon such conversion will
be validly issued, fully paid and nonassessable, will not subject the holders thereof to
personal liability and will not be subject to preemptive rights of any other stockholder
of the Company.




     (n) Litigation and Other Proceedings. Except as Previously Disclosed, there
is no pending or, to the knowledge of the Company, threatened, claim, action, suit,
investigation or proceeding, against the Company or any Company Subsidiary or to which
any of their assets are subject, nor is the Company or any Company Subsidiary subject to
any order, judgment or decree, in each case except as would not reasonably be expected to
have a Material Adverse Effect. Except as would not reasonably be expected to have a
Material Adverse Effect or as Previously Disclosed in the case of dividends and
distributions on outstanding Company securities, there is no unresolved violation, or
material criticism or exception by any Governmental Entity with respect to any report or
relating to any examinations or inspections of the Company or any Company Subsidiaries.




     (o) Compliance with Laws.




     (1) The Company is a bank holding company registered under 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 be expected to have a Material Adverse
Effect.




     (2) The Company and each Company Subsidiary have all material permits,
licenses, franchises, authorizations, orders and approvals of, and have
made all filings, applications and registrations with, Governmental Entities
that are required in order to permit them to own or lease their properties and
assets and to carry on their business as presently conducted and that are material
to the business of the Company or such Company Subsidiary. The Company and each
Company Subsidiary has complied in all respects and is not in default or violation
in any respect of, and none of them is, to the knowledge of the Company, under
investigation with respect to or, to the knowledge of the Company, has been
threatened to be charged with or given notice of any violation of, any applicable
domestic (federal, state or local) or foreign law, statute, ordinance, license,
rule, regulation, policy or guideline, order, demand, writ, injunction, decree or
judgment of any Governmental Entity, other than such noncompliance, defaults or
violations that would not reasonably be expected to have a Material Adverse



-12-









 






Effect. Except for statutory or regulatory restrictions of general application or as
Previously Disclosed, no Governmental Entity has placed any material restriction on
the business or properties of the Company or any Company Subsidiary.




          (p) Labor. Employees of the Company and the Company Subsidiaries are not
represented by any labor union nor are any collective bargaining agreements otherwise in
effect with respect to such employees. No labor organization or group of employees of
the Company or any Company Subsidiary has made a pending demand for recognition or
certification, and there are no representation or certification proceedings or petitions
seeking a representation proceeding presently pending or, to the knowledge of the
Company, threatened to be brought or filed with the National Labor Relations Board or any
other labor relations tribunal or authority. There are no organizing activities,
strikes, work stoppages, slowdowns, lockouts, material arbitrations or material
grievances, or other material labor disputes pending or, to the knowledge of the Company,
threatened against or involving the Company or any Company Subsidiary.




          (q) Company Benefit Plans.




          (1) Except as has not had or would not reasonably be expected to have a
Material Adverse Effect or which have been Previously Disclosed, (A) with respect to
each Benefit Plan, the Company and the Company Subsidiaries have complied, and are
now in compliance, in all material respects, with all provisions of ERISA, the Code
and all laws and regulations applicable to such Benefit Plan; and (B) each Benefit
Plan has been administered in all material respects in accordance with its terms.
“Benefit Plan” means any employee welfare benefit plan within the meaning of
Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), any employee pension benefit plan within the meaning of Section
3(2) of ERISA and any bonus, incentive, deferred compensation, vacation, stock
purchase, stock option, severance, employment, change of control or fringe
benefit plan, program, agreement or policy.




          (2) Except as has not had or would not reasonably be expected to have a
Material Adverse Effect or which have been Previously Disclosed, and except for
liabilities fully reserved for or identified in the Financial Statements, no claim
has been made, or to the knowledge of the Company threatened, against the Company or
any of the Company Subsidiaries related to the employment and compensation of
employees or any Benefit Plan, including any claim related to the purchase of
employer securities or to expenses paid under any defined contribution pension plan.




          (r) Risk Management Instruments. Except as has not had or would not
reasonably be expected to have a Material Adverse Effect, all material derivative
instruments, including, swaps, caps, floors and option agreements, whether entered into
for the Company’s own account, or for the account of one or more of the Company
Subsidiaries, were entered into (1) only in the ordinary course of business, (2) in
accordance with prudent practices and in all material respects with all applicable



-13-









 






laws, rules, regulations and regulatory policies and (3) with counterparties believed to be
financially responsible at the time; and each of them constitutes the valid and legally
binding obligation of the Company or one of the Company Subsidiaries, enforceable in
accordance with its terms. Neither the Company or the Company Subsidiaries, nor, to the
knowledge of the Company, any other party thereto, is in breach of any of its material
obligations under any such agreement or arrangement.




     (s) Agreements with Regulatory Agencies. Except as Previously Disclosed,
neither the Company nor any Company Subsidiary is subject to any cease-and-desist or
other similar order or enforcement action issued by, or is a party to any written
agreement, consent agreement or memorandum of understanding with, or is a party to any
commitment letter or similar undertaking to, or is a recipient of any extraordinary
supervisory letter from, or is subject to any capital directive by, or since December 31,
2008, has adopted any board resolutions at the request of, any Governmental Entity that
currently restricts in any material respect the conduct of its business or that in any
material manner relates to its capital adequacy, its liquidity and funding policies and
practices, its ability to pay dividends, its credit, risk management or compliance
policies, its internal controls, its management or its operations or business (each item
in this sentence, a “Regulatory Agreement”), nor has the Company or any Company
Subsidiary been advised since December 31, 2008 and until the date hereof by any
Governmental Entity that it is considering issuing, initiating, ordering, or requesting
any such Regulatory Agreement. The Company and each Company Subsidiary are in compliance
in all material respects with each Regulatory Agreement to which it is party or subject,
and neither the Company nor any Company Subsidiary has received any notice from any
Governmental Entity indicating that either the Company or any Company Subsidiary is
not in compliance in all material respects with any such Regulatory Agreement.




     (t) Environmental Liability. Except as Previously Disclosed, there is no
legal, administrative, arbitral or other proceeding, claim, action or notice of any
nature seeking to impose, or that could result in the imposition of, on the Company or
any Company Subsidiary, any liability or obligation of the Company or any Company
Subsidiary with respect to any environmental health or safety matters or any private or
governmental, health or safety investigations or remediation activities of any nature
arising under common law or under any local, state or federal environmental, health or
safety statute, regulation or ordinance, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (“CERCLA”), pending
or, to the Company’s knowledge, threatened against the Company or any Company Subsidiary
the result of which has had or would reasonably be expected to have a Material Adverse
Effect; to the Company’s knowledge, there is no reasonable basis for, or circumstances
that are reasonably likely to give rise to, any such proceeding, claim, action,
investigation or remediation; and to the Company’s knowledge, neither the Company nor any
Company Subsidiary is subject to any agreement, order, judgment, decree, letter or
memorandum by or with any Governmental Entity or third party imposing any such
environmental liability.



-14-









 






     (u) Knowledge as to Conditions. The sale of $250 million of capital
securities of the Company has been requested by the FDIC as a condition to qualify the
Bank as a bidder in the Acquisition of the Target Institution, and this amount will be
required, among other things, for the Bank, if qualified by the FDIC, to complete the
Acquisition.




     (v) Brokers and Finders. Except for Sandler O’Neill & Partners, L.P. (the
“Placement Agent”), neither the Company nor any Company Subsidiary nor any of
their respective officers, directors, employees or agents, has employed any broker or
finder or incurred any liability for any financial advisory fees, brokerage fees,
commissions or finder’s fees, and no broker or finder has acted directly or indirectly
for the Company or any Company Subsidiary, in connection with this Agreement or the sale
of the Convertible Preferred Stock.




     (w) Money Laundering Laws. The operations of the Company and the Company
Subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any Company Subsidiary with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened, except, in each case, as would not reasonably be
expected to have a Material Adverse Effect.




     (x) OFAC. Neither the Company nor any Company Subsidiary nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the
Company or any Company Subsidiary is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”);
and the Company will not directly or indirectly use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by OFAC.




     (y) Listing. The Common Stock is listed on the Nasdaq Global Select Market,
and the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or delisting the
Common Stock from the Nasdaq Global Select Market, nor has the Company received any
notification that the Nasdaq Global Select Market that it is contemplating terminating
such registration or listing. The Company has not, in the 12 months preceding the date
hereof, received written notice from the Nasdaq Global Select Market to the effect that
the Company is not in compliance with the listing or maintenance requirements of the
Nasdaq Global Select Market.



-15-









 






     (z) Transactions With Affiliates and Employees. Except as Previously
Disclosed and other than the grant of stock options, restricted stock or other equity
awards that are not individually or in the aggregate material in amount, none of the
officers or directors of the Company and, to the Company’s knowledge, none of the
employees of the Company, is presently a party to any transaction with the Company or to
a presently contemplated transaction (other than for services as employees, officers and
directors) that would be required to be disclosed pursuant to Item 404 of Regulation S-K
promulgated under the Securities Act since December 31, 2008.




     (aa) Investment Company. Neither the Company nor any of its Subsidiaries is
required to be registered as, and is not an Affiliate of, and immediately following the
Closing will not be required to register as, an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.




     (bb) Questionable Payments. Neither the Company nor any of its
Subsidiaries, nor any directors, officers, nor to the Company’s knowledge, employees,
agents or other persons acting at the direction of or on behalf of the Company or any of
its Subsidiaries has, in the course of its actions for, or on behalf of, the Company: (a)
directly or indirectly, used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to foreign or domestic political
activity; (b) made any direct or indirect unlawful payments to any foreign or domestic
governmental officials or employees or to any foreign or domestic political parties or
campaigns from corporate funds; (c) violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended, or (d) made any unlawful bribe, rebate, payoff,
influence payment, kickback or other material unlawful payment to any foreign or domestic
government official or employee.




     (cc) Application of Takeover Protections; Rights Agreements. The Company
has not adopted any stockholder rights plan relating to accumulations of beneficial
ownership of Common Stock or a change in control of the Company. The Company and its
board of directors have taken all necessary action, if any is needed, to render
inapplicable any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under
the Company’s articles of incorporation or other organizational documents or the laws of
the jurisdiction of its incorporation which is applicable to any Purchaser solely as a
result of the Company’s issuance of the Securities and any Purchaser’s ownership of the
Securities.




     (dd) No Manipulation. In the last thirty (30) days, the Company has not,
and to the Company’s knowledge no one acting on its behalf has, (i) taken, directly or
indirectly, any action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale
of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the securities of the Company or (iii) paid or agreed to
pay to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii) compensation
paid to the



-16-









 






Placement Agent in connection with the placement of the shares of Convertible
Preferred Stock.




     (ee) Shell Company Status. The Company is not, and has never been, an
issuer identified in Rule 144(i)(1).




     (ff) Adequate Capitalization. As of December 31, 2009, the Company’s
Subsidiary insured depository institutions meet or exceed the standards necessary to be
considered “adequately capitalized” under FDIC Regulation §325.103.




     (gg) Assuming the accuracy of the other representations and warranties of each
Purchaser and the performance of the covenants and agreements of each Purchaser contained
herein, the Company and the Bank are not subject to, and do not expect that, as a result
of the issuance of shares of Convertible Preferred Stock provided herein, will become
subject to, the FDIC Statement of Policy on Qualifications for Failed Bank Acquisitions (August 26, 2009) (the “FDIC Policy
Statement”).




     (hh) CapGen. CapGen, subject to the terms and conditions hereof and subject
to the receipt of necessary regulatory approvals, has agreed with the Company to purchase
Convertible Preferred Stock in satisfaction of the preemptive right previously granted to
CapGen.



     2.3. Representations and Warranties of Each Purchaser. Each Purchaser, severally and
not jointly, hereby represents and warrants to the Company, as of the date hereof and as of the
Closing Date (except to the extent made only as of a specified date, in which case as of such
date), that, with respect to such Purchaser:




     (a) Organization and Authority. Except as Previously Disclosed by a
Purchaser or as set forth on such Purchaser’s signature page, Purchaser is a United
States of America citizen, or is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization within the United States of
America, is duly qualified to do business and is in good standing in all jurisdictions
where its ownership or leasing of property or the conduct of its business requires it to
be so qualified and where failure to be so qualified would be reasonably expected to
materially and adversely affect Purchaser’s ability to perform its obligations under this
Agreement or consummate the transactions contemplated hereby on a timely basis, and
Purchaser has the corporate or other power and authority and governmental authorizations
to own its properties and assets and to carry on its business as it is now being
conducted.




     (b) Authorization.




     (1) Purchaser has the corporate or other power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution, delivery and
performance of this Agreement by Purchaser and the consummation of the transactions
contemplated hereby have been duly authorized by Purchaser’s board of directors,
general partner or managing members, investment committee



-17-









 






or other authorized persons, as the case may be (if such authorization is required), and no further
approval or authorization by any of its partners or other equity owners, as the case
may be, is required. This Agreement has been duly and validly executed and
delivered by Purchaser and assuming due authorization, execution and delivery by the
Company, is a valid and binding obligation of Purchaser enforceable against
Purchaser in accordance with its terms (except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
and similar laws of general applicability relating to or affecting creditors’ rights
or by general equity principles).




     (2) Neither the execution, delivery and performance by Purchaser of this
Agreement, nor the consummation of the transactions contemplated hereby, nor
compliance by Purchaser with any of the provisions hereof, will (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, or accelerate the performance
required by, or result in a right of termination or acceleration of, or result in
the creation of any Lien upon any of the properties or assets of Purchaser under any
of the terms, conditions or provisions of (i) its certificate of limited partnership
or partnership agreement or other organization or governing documents or (ii) any
note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which Purchaser is a party or by which it may be bound,
or to which Purchaser or any of the properties or assets of Purchaser may be
subject, or (B) subject to compliance with the statutes and regulations referred to
in the next paragraph, and assuming the accuracy of the representations and
warranties of the Company and the other Purchasers and the performance of the
covenants and agreements of the Company and the other Purchasers contained herein,
violate any law, statute, ordinance, rule or regulation, permit, concession, grant,
franchise or any judgment, ruling, order, writ, injunction or decree applicable to
Purchaser or any of its properties or assets except in the case of clauses (A)(ii)
and (B), for such violations, conflicts and breaches as would not reasonably be
expected to materially and adversely affect Purchaser’s ability to perform its
respective obligations under this Agreement or consummate the transactions
contemplated hereby on a timely basis.




     (3) Assuming the accuracy of the other representations and warranties of the
Company and the performance of the covenants and agreements of the Company contained
herein, no notice to, registration, declaration or filing with, exemption or review
by, or authorization, order, consent or approval of, any Governmental Entity, nor
expiration or termination of any statutory waiting period, is necessary for
Purchaser to purchase the Securities to be acquired at the Closing pursuant to this
Agreement.




     (4) Assuming the accuracy of the other representations and warranties of the
Company and the other Purchasers, and the performance of the covenants and
agreements of the Company contained herein, solely as a result of the Purchaser’s
purchase of shares of Convertible Preferred Stock hereunder, the



-18-









 






Purchaser is not subject to the FDIC Policy Statement and has no reason to believe it will become
subject to the FDIC Policy Statement or subject the Company or the Bank to the FDIC
Policy Statement.




          (c) Purchase for Investment. Purchaser acknowledges that the Securities
have not been registered under the Securities Act or under any state securities laws.
Purchaser (1) is acquiring the Securities pursuant to an exemption from registration
under the Securities Act solely for investment with no present intention to distribute
any of the Securities to any person, (2) will not sell or otherwise dispose of any of the
Securities, except in compliance with the registration requirements or exemption
provisions of the Securities Act and any other applicable securities laws, (3) is an
“accredited investor” as defined in SEC Rule 501 and/or a “qualified institutional buyer”
under SEC Rule 144A, (4) has reviewed the risk factors included in the Company 10-K and
in the offering materials, and (5) has such knowledge and experience in financial and
business matters and in investments of this type, including knowledge of the Company,
that it is capable of evaluating the merits and risks of the Company and of its
investment in the Securities and of making an informed investment decision. Purchaser is
not a registered broker-dealer under Section 15 of the Exchange Act or an unregistered
broker-dealer engaged in the business of being a broker-dealer.




          (d) Ownership. As of the date hereof, Purchaser and any of its Affiliates
(other than (i) any portfolio company with respect to which Purchaser is not the party
exercising control over investment decisions and (ii) if Purchaser is an Institutional
Investor, its non-controlled Affiliates) are currently the owners of record or the
Beneficial Owners of shares of Common Stock or securities convertible into or
exchangeable for Common Stock in the amounts shown on Schedule A to Purchaser’s
signature page hereto. For purposes of this Agreement, Purchaser shall be considered an
“Institutional Investor” if (i) Purchaser is a registered investment company
pursuant to the Investment Company Act of 1940, as amended, serves as a common investment
advisor to multiple investment advisory accounts on behalf of which Securities are being
purchased hereunder and which accounts are set forth on Schedule A to Purchaser’s
signature page hereto or is one of multiple investment advisory accounts with a common
investment advisor on behalf of which Securities are being purchased hereunder and which
accounts are set forth on Schedule A to Purchaser’s signature page hereto and
(ii) the Company has checked the appropriate box on Purchaser’s signature page hereto
indicating that Purchaser is an “Institutional Investor” for purposes of this Agreement.




          (e) Review of Information and Consultation with Advisors. Purchaser has,
either alone or through its representatives:




          (1) consulted with its own legal, regulatory, tax, business, investment,
financial and accounting advisers in connection herewith to the extent it has deemed
necessary;




          (2) had a reasonable opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, the officers and



-19-









 






representatives of the Company and the Bank concerning the Company’s and the Bank’s financial condition and
results of operations, the business plan for the Company and the Bank, all employment agreements and benefit plans and other
contractual arrangements among the Company, the Bank and their respective management
teams, the terms and conditions of the private placement of the Securities, the
Acquisition and any additional relevant information that the Company possesses, and
any such questions have been answered to its satisfaction;




     (3) had the opportunity to review and evaluate the following in connection with
its investment decision with respect to the Securities: (A) all publicly available
records and filings concerning the Company and the Bank, including the Company 10-K,
as well as all other documents, records, filings, reports, agreements and other
materials provided by the Company regarding its and the Bank’s business, operations
and financial condition sufficient to enable it to evaluate its investment; (B) the
investor presentation materials (as supplemented from time to time) including Risk
Factors, Term Sheet, Capital Offering — Select Q&A (collectively, the “Offering
Materials”) that summarizes this offering of Securities and the Acquisition; (C)
the publicly available records and filings concerning the Target Institution and is
generally familiar with the FDIC’s form of purchase and assumption transactions
similar to the Acquisition (the “P&A Agreements”); and (D) this Agreement,
the Preferred Stock Articles of Amendment attached as Exhibit A hereto, the
Registration Rights Agreement attached as Exhibit B hereto, the Escrow
Agreement attached as Exhibit C hereto, and all other exhibits, schedules
and appendices attached hereto and thereto and incorporated by reference in any of
the foregoing (collectively, the “Private Placement Documents”); and




     (4) made its own investment decisions based upon its own judgment, due
diligence and advice from such advisers as it has deemed necessary and not upon any
view expressed by any other Person, including, without limitation, the Placement
Agent. Neither such inquiries nor any other due diligence investigations conducted
by such Purchaser or its advisors or representatives, if any, shall modify, amend or
affect the Purchaser’s right to rely on the Company’s representations and warranties
contained herein. Purchaser understands that its investment in the Securities
involves a high degree of risk and it is able to afford a complete loss of such
investment.




     (f) No Reliance. Purchaser acknowledges that the information in the
Offering Materials is as of the date thereof and may not contain all of the terms and
conditions of the offering and sale of the Securities and the Acquisition, and
understands and acknowledges that it is Purchaser’s responsibility to, and it has
conducted its own independent investigation and evaluation of the Company and its
Significant Subsidiaries, the Target Institution and the Acquisition, including without
limitation, (i) the planned future operations of the Company after completion of the
Acquisition, if applicable, and (ii) the Company’s existing management team and the
proposed new members of management that will operate and manage the Company



-20-









 






following the completion of the Acquisition. Purchaser is not relying upon, and has not relied upon,
any advice, statement, representation or warranty made by any Person by or on behalf of
the Company, including, without limitation, the Placement Agent, except for the express
statements, representations and warranties of the Company made or contained in this
Agreement and the other Private Placement Documents. Furthermore, Purchaser acknowledges
that: (A) the Placement Agent has not performed any due diligence review on behalf of
Purchaser; (B) nothing in this Agreement or any other materials presented by or on behalf
of the Company to Purchaser in connection with the purchase of the Securities constitutes
legal, tax or investment advice and such Purchaser has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of the Securities; and (C) Purchaser received or had access
to all of the information Purchaser deemed necessary in order to make its decision to
invest in the Securities. Purchaser acknowledges and understands that there is no
representation or warranty being made to Purchaser as to the suitability or sufficiency
of information provided by the FDIC regarding the Target Institution or the assets and
liabilities of the Target Institution to be acquired in the Acquisition, to the extent
that any such information is made available. The Placement Agent and its affiliates (and
their respective officers, directors, employees, agents, advisors, attorneys and
consultants), are third-party beneficiaries to this Section 2.3(f). For purposes of this
Agreement, “Person” means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated organization or
similar entity and a government or any department or agency thereof.




     (g) Reliance on Exemptions. Purchaser understands that the Securities are
being offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and regulations and that
the Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance
with, the representations, warranties, agreements, acknowledgments and understandings of
Purchaser set forth herein in order to determine the availability of such exemptions and
the eligibility of Purchaser to acquire the Securities.




     (h) Knowledge as to Conditions. Purchaser does not know of any reason why
any regulatory approvals and, to the extent necessary, any other approvals,
authorizations, filings, registrations, and notices required or otherwise a condition to
the consummation by it of the transactions contemplated by this Agreement will not be
obtained.




     (i) Brokers and Finders. Neither Purchaser nor its Affiliates, any of their
respective officers, directors, employees or agents has employed any broker or finder
or incurred any liability for any financial advisory fees, brokerage fees,
commissions or finder’s fees, and no broker or finder has acted directly or indirectly
for Purchaser, in connection with this Agreement or the transactions contemplated hereby,
in each case, whose fees the Company would be required to pay.




     (j) No General Solicitation. Purchaser is not purchasing the Securities as
a result of any advertisement, article, notice or other communication regarding the



-21-









 






Securities published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other general advertisement.




     (k) No Governmental Review; Securities Are Not Deposits and Are Not Insured.
Purchaser understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or endorsement
of the Securities or the fairness or suitability of the investment in the Securities nor
have such authorities passed upon or endorsed the merits of the offering of the
Securities. PURCHASER UNDERSTANDS AND AGREES THAT THE SECURITIES ARE NOT SAVINGS
ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A DEPOSITORY INSTITUTION AND ARE NOT INSURED
BY THE FDIC, INCLUDING THE FDIC’S DEPOSIT INSURANCE FUND, OR ANY OTHER GOVERNMENTAL
AGENCY, AND THAT THE SECURITIES ARE SUBJECT TO RISK OF LOSS.




     (l) Investment Risk. Purchaser understands that (i) its investment in the
Securities involves a high degree of risk, (ii) no representation is being made as to the
business or prospects of the Company or the Bank after completion of the Acquisition or
the future value of the Securities, and (iii) no representation is being made as to any
projections or estimates delivered to or made available to Purchaser (or any of its
affiliates or representatives) of the Company’s or the Bank’s future assets, liabilities,
stockholders’ equity, regulatory capital ratios, net interest income, net income or any
component of any of the foregoing or any ratios derived therefrom.




     (m) Residency. Purchaser has, if an entity, its principal place of business
or, if an individual, its primary residence, in the jurisdiction in the United States
indicated below Purchaser’s name on the signature pages hereto, except as indicated on
such signature page.



ARTICLE III




COVENANTS



     3.1. Filings; Other Actions.




     (a) Each Purchaser, with respect to itself only, on the one hand, and the Company,
on the other hand, will cooperate and consult with the other and use reasonable best efforts to provide all necessary and customary information and data,
to prepare and file all necessary and customary documentation, to provide evidence of
non-control of the Company and the Bank, including executing and delivering to the
applicable Governmental Entities passivity and disassociation commitments and commitments
not to act in concert with respect to the Company or the Bank (the “Commitments”)
in the forms customary for transactions similar to the transaction contemplated hereby,
and to effect all necessary and customary applications, notices, petitions, filings and
other documents, and to obtain all necessary and customary permits, consents, orders,
approvals and authorizations of, or any exemption by, all third parties and Governmental
Entities, and the expiration or termination of any



-22-









 






applicable waiting period, in each case, (i) necessary or advisable to consummate the transactions contemplated by this
Agreement, and to perform the covenants contemplated by this Agreement, including the
Agreements attached as Exhibits hereto and (ii) with respect to each Purchaser, to the
extent typically provided by such Purchaser to such third parties or Governmental
Entities, as applicable, under such Purchaser’s policies consistently applied and subject
to such confidentiality requests as such Purchaser may reasonably seek. Notwithstanding
the immediately preceding sentence, the Purchaser shall not be required to provide
information on its investors solely in their capacities as limited partners or other
similar passive equity investors, and shall be entitled to request confidential treatment
from any Governmental Entity and not disclose to the Company any information that is
confidential and proprietary to the Purchaser. Each party shall execute and deliver both
before and after the Closing such further certificates, agreements, documents and other
instruments and take such other actions as the other parties may reasonably request to
consummate or implement such transactions or to evidence such events or matters, subject,
in each case, to clauses (i) and (ii) of the first sentence of this Section 3.1(a). Each
Purchaser and the Company will have the right to review in advance, and to the extent
practicable each will consult with the other, in each case subject to applicable laws
relating to the exchange of information, all the information relating to such other
party, and any of their respective Affiliates, which appears in any filing made with, or
written materials submitted to, any third party or any Governmental Entity in connection
with the transactions to which it will be party contemplated by this Agreement; provided,
however, that (i) no Purchaser shall have the right to review any such information
relating to another Purchaser and (ii) a Purchaser shall not be required to disclose to
the Company any information that is confidential and proprietary to such Purchaser. In
exercising the foregoing right, each of the parties hereto agrees to act reasonably and
as promptly as practicable in light of the currently anticipated date for bidding on the
Target Institution of April 8, 2010. Each party hereto agrees to keep the other party
apprised of the status of matters referred to in this Section 3.1(a). Each Purchaser
shall promptly furnish the Company, and the Company shall promptly furnish each
Purchaser, to the extent permitted by applicable law, with copies of written
communications received by it or its Subsidiaries from, or delivered by any of the
foregoing to, any Governmental Entity in respect of the transactions contemplated by
this Agreement.




     (b) The Company shall call a meeting of its stockholders, to be held as promptly as
practicable following the Closing, and in no event later than 75 days after the Closing,
to seek the Stockholder Approvals proposals to (1) approve the Conversion of the
Convertible Preferred Stock and the related issuance of Common Stock for purposes of Rule
5635 of the Nasdaq Stock Market Rules and (2) to amend the Articles of Incorporation to
increase the number of authorized shares of Common Stock to permit the Conversion in full
and provide available authorized but unissued shares for general corporate purposes. The
Board of Directors of the Company shall recommend approval of such proposals. In
connection with such meeting, the Company shall promptly prepare (and each Purchaser will
reasonably cooperate with the Company to prepare) and file (but in no event more than
twenty business days after the Closing Date) with the SEC a preliminary proxy statement
or an amended



-23-









 






preliminary proxy statement, shall use its reasonable best efforts to
respond to any comments of the SEC or its staff and to cause a definitive proxy statement
related to such stockholders’ meeting to be mailed to the Company’s stockholders not more
than five business days after clearance thereof by the SEC, and shall use its reasonable
best efforts to solicit proxies for such stockholder approval. If at any time prior to
such stockholders’ meeting there shall occur any event that is required to be set forth
in an amendment or supplement to the proxy statement, the Company shall as promptly as
practicable prepare and mail to its stockholders such an amendment or supplement. Each
Purchaser and the Company agrees promptly to correct any information provided by it or on
its behalf for use in the proxy statement if and to the extent that such information
shall have become false or misleading in any material respect, and the Company shall as
promptly as practicable prepare and mail to its stockholders an amendment or supplement
to correct such information to the extent required by applicable laws and regulations.
In the event that the Stockholder Approvals are not obtained at such stockholders’
meeting, the Company shall include proposals to approve (and the Board of Directors shall
unanimously recommend approval of) such Stockholder Approvals proposals at a meeting of
its stockholders no less than once in each subsequent three-month period beginning on the
date of such stockholders meeting until such approval is obtained. The Preferred Stock
Articles of Amendment contain a reduction in the Conversion Price, as defined therein,
for failure to obtain the Stockholder Approvals timely pursuant to this Section 3.1 and
the Preferred Stock Articles of Amendment.




     (c) Each Purchaser, on the one hand, agrees to furnish the Company, and the Company,
on the other hand, agrees, upon request, to furnish to each Purchaser, all information
concerning itself, its Affiliates, directors, officers, partners and stockholders and
such other matters as may be reasonably necessary or advisable in
connection with the proxy statement in connection with any such stockholders’
meeting at which the Stockholder Approvals are sought.



     3.2. Access, Information and Confidentiality.




     (a) Each Purchaser confirms that it is aware that United States securities laws may
prohibit any person who has material non-public information about a company from
purchasing or selling securities of such company or from communicating such information
to any other person under circumstances in which it is reasonably foreseeable that such
person may purchase or sell such securities. After the Closing, the Company will not
intentionally provide Purchaser with material non-public information without Purchaser’s
prior consent. The Parties hereby reaffirm their existing Confidentiality Agreement,
which shall continue in full force and effect. To the extent holders of more than 5% of
the Company’s outstanding Common Stock desire additional information about the Company
following the Closing Date and execute and deliver confidentiality agreements that
provide, among other things, for compliance with the securities laws, the Company will
discuss non-public information regarding the Company with such Persons.



-24-









 






     (b) Each party hereto will hold, and will cause its respective Affiliates and its
and their respective directors, officers, employees, agents, consultants and advisors to
hold, in strict confidence, unless disclosure to a regulatory authority is necessary or
appropriate in connection with any necessary regulatory approval, examination or
inspection or unless disclosure is required by judicial or administrative process or, in
the written opinion of its counsel, by other requirement of law or the applicable
requirements of any regulatory agency or relevant stock exchange, all non-public records,
books, contracts, instruments, computer data and other data and information
(collectively, “Information”) concerning the other party hereto furnished to it
by or on behalf of such other party or its representatives pursuant to this Agreement
(except to the extent that such information can be shown to have been (1) previously
known by such party on a non-confidential basis, (2) in the public domain through no
fault of such party or (3) later lawfully acquired from other sources by such party), and
Purchaser shall not release or disclose such Information to any other person, except its
auditors, attorneys, financial advisors, other consultants and advisors.




     (c) Except as may have otherwise been previously agreed with the Company, Purchasers
may, as permitted by the Commitments and applicable laws, rules and regulations, talk
with other Purchasers regarding the Company, but in no event shall the Purchasers act in
concert inconsistent with the BHC Act, the CIBC Act or the policy statements of any
Governmental Entity asserting jurisdiction over the Company, the Bank or any Purchaser,
or where such activity would reasonably be likely to limit the Company’s or the Bank’s activities, including any opportunities
to bid on failed FDIC insured institutions or other assets or liabilities.



     3.3. Waiver of Change-of-Control Rights. The Company shall use its reasonable best
efforts to promptly obtain waivers of all Employee Change-of-Control Rights. For purposes of this
Section 3.3, “Employee Change-of-Control Rights” means any right of a director, officer or
employee of the Company that arises, vests, accelerates or becomes exercisable (in each case, by
contract or otherwise) as a result of the purchase of securities from the Company by any Purchaser
pursuant to this Agreement.



ARTICLE IV




ADDITIONAL AGREEMENTS



     4.1. Transfer Restrictions.




     (a) Notwithstanding any other provision of this Article IV, each Purchaser covenants
that the Securities may be disposed of only pursuant to an effective registration
statement under, and in compliance with the requirements of, the Securities Act, or
pursuant to an available exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, and in compliance with any applicable
state, federal or foreign securities laws. In connection with any transfer of the
Securities other than (i) pursuant to an effective registration statement, (ii) to the
Company or (iii) pursuant to Rule 144 (provided that the transferor provides the Company
with reasonable assurances (in the form of seller and broker representation




-25-











 






letters) that
such securities may be sold pursuant to such rule), the Company may require the
transferor thereof to provide to the Company and the Transfer Agent, at the transferor’s
expense, an opinion of counsel selected by the transferor and reasonably acceptable to
the Company and the Transfer Agent, the form and substance of which opinion shall be
reasonably satisfactory to the Company and the Transfer Agent, to the effect that such
transfer does not require registration of such transferred Securities under the
Securities Act. As a condition of transfer (other than pursuant to clauses (i), (ii) or
(iii) of the preceding sentence), any such transferee shall agree in writing to be bound
by the terms of this Agreement and shall have the rights of a Purchaser under this
Agreement and the Registration Rights Agreement with respect to such transferred
Securities.




     (b) Hedging. Each Purchaser covenants that it will not knowingly make any
sale, transfer, or other disposition of any Securities, or engage in hedging transactions
with respect to such Securities, in violation of the Securities Act (including Regulation
S) or the Exchange Act.



     4.2. Legend. (a) Each Purchaser agrees that all certificates or other instruments,
if any, representing the Securities subject to this Agreement will bear a legend and with respect
to Securities held in book-entry form, the Transfer Agent will record a legend on the share
register substantially to the following effect:




THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A
BANK AND ARE NOT INSURED BY THE FDIC OR ANY OTHER GOVERNMENTAL AGENCY.




THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER OF THE CORPORATION WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE PARTICIPATING, OPTIONAL OR
SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE CORPORATION AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS. SUCH REQUEST SHOULD BE ADDRESSED TO THE CORPORATION OR THE TRANSFER AGENT.




THE ISSUANCE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR SECURITIES LAWS OF ANY STATE AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT RELATING THERETO UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.




THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER AND OTHER
RESTRICTIONS SET FORTH IN AN INVESTMENT AGREEMENT, EFFECTIVE AS OF THE EFFECTIVENESS DATE
THEREOF,



-26-









 







COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE CORPORATION AT THE
CORPORATION’S PRINCIPAL EXECUTIVE OFFICES.




     (b) The restrictive legend set forth in Section 4.2(a) above shall be removed and
the Company shall issue a certificate without such restrictive legend or any other
restrictive legend to the holder of the applicable Securities upon which it is stamped or
issue to such holder by electronic delivery at the applicable balance account at DTC, if
(i) such Securities are registered for resale under the Securities Act, (ii) such
Securities are sold or transferred pursuant to Rule 144 (if the transferor is not an
Affiliate of the Company), or (iii) such Securities are eligible for sale under Rule 144,
without the requirement for the Company to be in compliance with the current public
information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to such
securities and without volume or manner-of-sale restrictions. Following the earlier of
(i) the effective date of the registration statement registering such Securities for
resale or (ii) Rule 144 becoming available for the resale of Securities, without the
requirement for the Company to be in compliance with the current public information
required under 144(c)(1) (or Rule 144(i)(2), if applicable) as to the Securities and
without volume or manner-of-sale restrictions, the Company shall instruct the Transfer
Agent to remove the legend from the Securities and shall cause its counsel to issue any
legend removal opinion required by the Transfer Agent. Any fees (with respect to the
Transfer Agent, Company counsel or otherwise) associated with the issuance of such
opinion or the removal of such legend shall be borne by the Company. If a legend is no
longer required pursuant to the foregoing, the Company will no later than three (3)
Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent
(with notice to the Company) of a legended certificate or instrument representing such
Securities (endorsed or with stock powers attached, signatures guaranteed, and otherwise
in form necessary to affect the reissuance and/or transfer) and a representation letter
to the extent required by Section 4.1, (such third Trading Day, the “Legend Removal
Date”) deliver or cause to be delivered to such Purchaser a certificate or instrument
(as the case may be) representing such Securities that is free from all restrictive
legends. The Company may not make any notation on its records or give instructions to
the Transfer Agent that enlarge the restrictions on transfer set
forth in this Section 4.2(b). Certificates for Securities free from all restrictive
legends may be transmitted by the Transfer Agent to the Purchasers by crediting the
account of the Purchaser’s prime broker with DTC as directed by such Purchaser.




     (c) Each Purchaser hereunder acknowledges its primary responsibilities under the
Securities Act and accordingly will not sell or otherwise transfer the Securities or any
interest therein without complying with the requirements of the Securities Act and the
rules and regulations promulgated thereunder. Except as otherwise provided below, while
the above-referenced registration statement remains effective, each Purchaser hereunder
may sell the Securities in accordance with the plan of distribution contained in the
registration statement and if it does so it will comply therewith and with the related
prospectus delivery requirements unless an exemption therefrom is available or unless the
Securities are sold pursuant to Rule 144. Each Purchaser, severally and not jointly with
the other Purchasers, agrees that if it is notified by the Company in writing at any time
that the registration statement



-27-









 







registering the resale of the Securities is not effective
or that the prospectus included in such registration statement no longer complies with
the requirements of Section 10 of the Securities Act, the Purchaser will refrain from
selling such Securities until such time as the Purchaser is notified by the Company that
such registration statement is effective or such prospectus is compliant with Section 10
of the Exchange Act, unless such Purchaser is able to, and does, sell such Securities
pursuant to an available exemption from the registration requirements of Section 5 of the
Securities Act.



     4.3. Reservation for Issuance. The Company will seek authorization in the Stockholder
Approval of additional shares of Common Stock and will reserve from such newly authorized shares of
Common Stock, that number of shares of Common Stock sufficient for issuance upon exercise or
conversion of all outstanding shares of Convertible Preferred Stock, and such other shares of
Common Stock the Company believes it may need if available for general corporate purposes.



     4.4. [Reserved]



     4.5. Indemnity.




     (a) The Company agrees, subject to applicable law, to indemnify and hold harmless
each Purchaser and its Affiliates and each of their respective officers, directors,
partners, members, employees and agents (and any other persons with a functionally
equivalent role of a person holding such titles notwithstanding a lack of such title or
any other title), and each person who controls each Purchaser within the meaning of the
Exchange Act and the rules and regulations promulgated thereunder, to the fullest extent
lawful, from and against any and all actions, suits, claims, proceedings, costs, losses,
liabilities, damages, expenses (including reasonable attorneys’ fees and disbursements),
amounts paid in settlement and other costs (collectively, “Losses”) arising out
of or resulting from (1) any inaccuracy in or breach of the Company’s representations or
warranties in this Agreement or (2) the Company’s breach of agreements or covenants made
by the Company in this Agreement (other than any Losses attributable to any breach of
this
Agreement by Purchaser) or (3) any action, suit, claim, proceeding or investigation
by any Governmental Entity, stockholder of the Company or any other person (other than
the Company) relating to this Agreement or the transactions contemplated hereby (other
than any Losses attributable to the acts, errors or omissions on the part of Purchaser,
but not including the transactions contemplated hereby, and any Losses for which each
Purchaser is obligated under Section 4.5(b)).




     (b) [Reserved]




     (c) A party entitled to indemnification hereunder (each, an “Indemnified
Party”) shall give written notice to the party indemnifying it (the “Indemnifying
Party”) of any claim with respect to which it seeks indemnification promptly after
the discovery by such Indemnified Party of any matters giving rise to a claim for
indemnification; provided that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations under this



-28-









 







Section 4.5 unless and only to the extent that the Indemnifying Party shall have been
actually prejudiced by the failure of such Indemnified Party to so notify such party.
Such notice shall describe in reasonable detail each such claim. In case any such
action, suit, claim or proceeding is brought against an Indemnified Party, the
Indemnified Party shall be entitled to hire, at its own expense, separate counsel and
participate in the defense thereof; provided that the Indemnifying Party shall be
entitled to assume and conduct the defense thereof, unless the counsel to the Indemnified
Party advises the Indemnifying Party in writing that such claim involves a conflict of
interest (other than one of a monetary nature) that would reasonably be expected to make
it inappropriate for the same counsel to represent both the Indemnifying Party and the
Indemnified Party, in which case, the Indemnified Party shall be entitled to retain its
own counsel at the cost and expense of the Indemnifying Party (except that the
Indemnifying Party shall only be liable for the legal fees and expenses of one law firm
for all Indemnified Parties, taken together with respect to any single action or group of
related actions). If the Indemnifying Party assumes the defense of any claim, all
Indemnified Parties shall thereafter deliver to the Indemnifying Party copies of all
notices and documents (including court papers) received by the Indemnified Party relating
to the claim, and each Indemnified Party shall cooperate in the defense or prosecution of
such claim. Such cooperation shall include the retention and (upon the Indemnifying
Party’s request) the provision to the Indemnifying Party of records and information that
are reasonably relevant to such claim, and making persons available on a mutually
convenient basis to provide additional information and explanation of any material
provided hereunder. The Indemnifying Party shall not be liable for any settlement of any
action, suit, claim or proceeding effected without its written consent, unless the
Indemnifying Party is unconditionally and irrevocably released from all such claims,
actions, suits and proceedings and Losses; provided that the Indemnifying Party shall not
unreasonably withhold or delay its consent. The Indemnifying Party further agrees that
it will not, without the Indemnified Party’s prior written consent (which shall not be
unreasonably withheld or delayed), settle or compromise any claim or consent to entry of
any judgment in respect thereof in any pending or threatened action, suit, claim or
proceeding in respect of which indemnification has been sought hereunder unless such
settlement or compromise includes an unconditional release of such Indemnified Party
from all liability arising out of such action, suit, claim or proceeding and does not
involve any prospective relief against such Indemnified Party.




     (d) The Company shall not be required to indemnify the Indemnified Parties pursuant
to Section 4.5(a)(1), (1) with respect to any claim for indemnification if the amount of
Losses with respect to such claim (including a series of related claims) are less than
$250,000 (Losses less than such amount being referred to as a “De Minimis Claim”)
and (2) unless and until the aggregate amount of all Losses incurred with respect to all
claims (other than De Minimis Claims) pursuant to 4.5(a)(1) exceed $1,000,000 (the
“Threshold Amount”), in which event the Company shall be responsible for all
Losses including those below the Threshold Amount. The cumulative indemnification
obligation of the Company to any Purchaser and all of the Indemnified Parties affiliated
with (or whose claims are permitted by virtue of their relationship with) such Purchaser
for inaccuracies in or breaches of representations and



-29-









 







warranties, shall in no event
exceed the Purchase Price attributable to such Purchaser plus an amount attributable to
the out-of-pocket cost of litigation, if any, reasonably incurred by such Purchaser and
Indemnified Parties, including the reasonable fees and expenses of one counsel who shall
represent both such Purchaser and such Indemnified Parties.




     (e) Any claim for indemnification pursuant to this Section 4.5 for breach of any
representation or warranty can only be brought on or prior to the second anniversary of
the Closing Date; provided that if notice of a claim for indemnification pursuant to this
Section 4.5 for breach of any representation or warranty is brought prior to the end of
such period, then the obligation to indemnify in respect of such breach shall survive as
to such claim, until such claim has been finally resolved.




     (f) No party to this Agreement (or any of its Affiliates) shall, in any event, be
liable or otherwise responsible to any other party (or any of its Affiliates) for any
punitive damages of such other party (or any of its Affiliates) arising out of or
relating to this Agreement or the performance or breach hereof.




     (g) No investigation of the Company by a Purchaser, or by the Company of a
Purchaser, whether prior to or after the date hereof, shall limit any Indemnified Party’s
exercise of any right hereunder or be deemed to be a waiver of any such right.




     (h) Any indemnification payments pursuant to this Section 4.5 shall be treated as an
adjustment to the Purchase Price for the Securities for U.S. federal income and
applicable state and local Tax purposes, unless a different treatment is required by
applicable law.



     4.6. Exchange Listing. The Company shall promptly use its reasonable best efforts to
cause the shares of Common Stock reserved for issuance pursuant to the conversion of the
Convertible Preferred Stock to be approved for listing on the Nasdaq Global Select Market,
including by submitting prior to the Closing supplemental listing materials with the Nasdaq Global
Select Market with respect to the shares of Common Stock reserved for issuance pursuant
to the conversion of the Convertible Preferred Stock, subject to official notice of issuance,
and upon receipt of the Stockholder Approvals, as promptly as practicable, and in any event before
the Closing if permitted by the rules of the Nasdaq Global Select Market.



     4.7. Tax Treatment of Convertible Preferred Stock. The Company covenants not to treat
the Convertible Preferred Stock as preferred stock for purposes of Section 305 of the Internal
Revenue Code of 1986, as amended (the “Code”), except as otherwise required by applicable
law.



ARTICLE V




CONDITIONS TO CLOSING; TERMINATION



     5.1. Conditions to Each Purchaser’s Obligations. The obligations of each Purchaser to
purchase and pay for the Securities to be purchased by such Purchaser are subject to the



-30-









 







satisfaction or waiver by such Purchaser, on or before such Closing Date, of the following
conditions:




     (a) The representations and warranties contained in Section 2.2 shall be true,
complete and correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date, except to the extent
such representations and warranties expressly relate to any earlier date (in which case
such representations and warranties shall be accurate on and as of such date), and an
authorized officer of the Company shall have certified such compliance to the Purchasers
in writing on behalf of the Company.




     (b) The Company shall have performed and complied in all material respects with all
agreements contained herein required to be performed or complied with by it prior to or
at the Closing Date, and an authorized officer of the Company shall have certified such
compliance to the Purchasers in writing on behalf of the Company.




     (c) The Company shall have executed and delivered, effective as of the Closing, the
Escrow Agreement and the Registration Rights Agreement in the forms attached as
Exhibit B and Exhibit C, respectively.




     (d) The Purchaser shall have received an opinion of counsel, dated as of the Closing
Date and addressed to the Purchaser, in such form and substance as are customary for
transactions of this type.




     (e) The Purchaser shall have received the shares of Convertible Preferred Stock
being purchased at the Closing, and otherwise shall have received evidence from the
Transfer Agent that it had been directed to issue and deliver shares to the Purchasers.




     (f) Each Purchaser shall not have been made subject to the FDIC Policy Statement
solely as a result of its purchase of shares of Convertible Preferred Stock hereunder.




     (g) With respect to the purchase of the Contingent Shares, the Bank shall have been
named by the FDIC as the winning bidder for the Acquisition of the Target Institution,
and the conditions to the release of the aggregate Purchase Price to the Company from
Escrow pursuant to the Escrow Agreement shall have been satisfied.




     (h) With respect to a purchase of only the Non-Contingent Shares, the Company shall
notify the Escrow Agent and the respective Purchasers of the number of Non-Contingent
Shares allocated to them and the conditions to the release of the Purchase Price for the
Non-Contingent Shares from Escrow pursuant to the Escrow Agreement or otherwise shall
have been satisfied. This notice shall be given within five (5) business days of the
occurrence of the: (i) receipt of written notice from the FDIC that the Bidder will not
be permitted as a final matter to enter a Bid (“Notice of Non-Qualification”),
(ii) receipt of a notice that the Bidder is not named by the FDIC as the winning bidder
for the Target Institution’s Assets and Liabilities (a “Notice of



-31-









 







Higher Bid”),
(iii) the Company or the Bank determines not to submit a Bid or failed to submit a Bid,
(iv) receipt of a Delay Notice or (v) failure of the Acquisition to close by April 30,
2010.




     (i) The Company shall have received subscriptions to shares of Convertible Preferred
Stock aggregating $250 million.




     (j) The purchase of such Securities shall not (i) cause Purchaser or any of its
affiliates to violate any bank regulation, (ii) except in the case of CapGen, require
such Purchaser or any of its affiliates to file a prior notice with the Board of
Governors of the Federal Reserve System (the “Federal Reserve”) or its delegee
under the CIBC Act or the BHC Act or obtain the prior approval of any bank regulator or
(iii) except in the case of CapGen, cause such Purchaser, together with any other person
whose Company securities would be aggregated with such Purchaser’s Company securities for
purposes of any bank regulation or law, to collectively be deemed to own, control or have
the power to vote securities which (assuming, for this purpose only, full conversion
and/or exercise of such securities by the Purchaser) would represent 10.0% or more of the
voting securities of the Company outstanding at such time.




     (k) The Company shall not have been notified by the FDIC that the Company is subject
to the FDIC Policy Statement with respect to the Acquisition of the Target Institution
and that, as a result, the Purchaser will become subject to the FDIC Policy Statement
solely as a result of the purchase of the shares of Convertible Preferred Stock
hereunder, assuming the accuracy of the Purchaser’s representation, warranties and
covenants.



     5.2. Conditions to Company’s Obligations. The obligations of the Company to issue and
sell the Securities to each individual Purchaser and to perform its obligations under this
Agreement with respect to such Purchaser are subject to the satisfaction by such Purchaser, on or
before such Closing Date, of the following conditions:




     (a) The representations and warranties contained in Section 2.3 shall be true,
complete and correct on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of such date, except to
the extent such representations and warranties expressly relate to any earlier date (in
which case such representations and warranties shall be accurate on and as of such date),
and an authorized officer of such Purchaser shall have certified such compliance to the
Company in writing on behalf of such Purchaser.




     (b) Such Purchaser shall have performed and complied in all material respects with
all agreements contained herein required to be performed or complied with by it prior to
or at the Closing Date, and an authorized officer of such Purchaser shall have certified
such compliance to the Company in writing on behalf of such Purchaser.




     (c) With respect to the purchase of the Contingent Shares, the Bank shall have been
named by the FDIC as the winning bidder for the Acquisition of the Target



-32-









 







Institution,
and the conditions to the release of the aggregate Purchase Price to the Company from
Escrow pursuant to the Escrow Agreement shall have been satisfied.




     (d) With respect to a purchase of only the Non-Contingent Shares, the Company shall
notify the Escrow Agent and the respective Purchasers of the number of Non-Contingent
Shares allocated to them and the conditions to the release of the Purchase Price for the
Non-Contingent Shares from Escrow pursuant to the Escrow Agreement or otherwise shall
have been satisfied. This notice shall be given within five (5) business days of the
occurrence of the: (i) receipt of a Notice of Non-Qualification, (ii) receipt of a Notice
of Higher Bid, (iii) the Company or the Bank determines not to submit a Bid or failed to
submit a Bid, (iv) receipt of a Delay Notice or (v) failure of the Acquisition to close
by April 30, 2010.




     (e) The Company shall not have been notified by the FDIC that the Company is subject
to the FDIC Policy Statement with respect to the Acquisition of the Target Institution
and that, as a result, any Purchaser hereunder will become subject to the FDIC Policy
Statement solely as a result of the purchase of the shares of Convertible Preferred Stock
hereunder, assuming the accuracy of each Purchaser’s representation, warranties and
covenants.



     5.3. Release of Escrow Funds. Upon the occurrence of the events specified in Section
5(b) of the Escrow Agreement, all monies held by the Escrow Agent pursuant to the Escrow Agreement
other than the Purchase Price for the Non-Contingent Shares shall be released and returned to the
respective Purchasers as provided in the Escrow Agreement. The Escrow Funds representing the
Purchase Price for the Non-Contingent Shares shall be released as provided in the Escrow Agreement.



     5.4. Termination. The Company and each Purchaser’s obligations under this agreement
may be terminated by the mutual written consent in writing of such Purchaser and the Company.



     5.5. Rescission. In the event that, following the Closing of the Contingent Shares,
the Acquisition is not consummated on the Closing Date, then the issuance of such Contingent
Shares shall be void ab initio, and the Company shall promptly notify and return the Purchase
Price paid for such Contingent Shares to the respective Purchasers of such Contingent Shares as
specified on each such Purchaser’s signature page hereto. Promptly following such actions
specified in the first sentence of this Section, the Company shall provide written notice to the
Transfer Agent that such purchase is void and of no effect and that the share issuance instructions
with respect to the Purchasers of the Contingent Purchasers shall be null and void, unless any
Purchaser received certificates, in which case such Purchaser shall return to the Company for
cancellation the certificates for its Contingent Shares concurrently with the Company returning
promptly to such Purchaser its Purchase Price with respect to the Contingent Shares by wire
transfer of immediately available funds to a bank account designated by such Purchaser. This
Section 5.5 shall not affect the parties’ obligations to pay for and issue Non-Contingent Shares.



-33-









 





ARTICLE VI




MISCELLANEOUS



     6.1. Survival. Each of the representations and warranties set forth in this Agreement
shall survive the Closing under this Agreement but only for two years following the Closing Date
(or until final resolution of any claim or action arising from the breach of any such
representation and warranty, if notice of such breach was provided prior to the second anniversary
of the Closing Date) and thereafter shall expire and have no further force and effect. Except as
otherwise provided herein, all covenants and agreements contained herein, other than those which by
their terms are to be performed in whole or in part after the Closing Date, shall terminate as of
the Closing Date.



     6.2. Expenses. Each of the parties will bear and pay all other costs and expenses
incurred by it or on its behalf in connection with the transactions contemplated pursuant to this
Agreement; except as may be concurrently or subsequently agreed in writing between the Company and
any Purchaser.



     6.3. Amendment; Waiver. No amendment or waiver of any provision of this Agreement
will be effective with respect to any party unless made in writing and signed by an officer of a
duly authorized representative of such party. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. No waiver of any party to this Agreement will be effective unless
it is in a writing signed by a duly authorized officer of the waiving party that makes express
reference to the provision or provisions subject to such waiver. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies provided by law.



     6.4. Counterparts and Facsimile. For the convenience of the parties hereto, this
Agreement may be executed in any number of separate counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts will together constitute the same
agreement. Executed signature pages to this Agreement may be delivered by facsimile or electronic
transmission and such facsimiles or electronic transmissions will be deemed as sufficient as if
actual signature pages had been delivered.



     6.5. Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed entirely
within such State.



     6.6. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.



     6.7. Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the other will be in writing and will be deemed to have been duly given
(a) on the date of delivery if delivered personally or by telecopy or facsimile, upon confirmation
of receipt,



-34-









 







(b) on the first business day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the third business day following the date of mailing
if delivered by registered or certified mail, return receipt requested, postage prepaid. All
notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice.


(a) If to Purchaser to it at:



As set forth on such Purchaser’s signature page hereto.



(b) If to the Company:



Dennis S. Hudson, III

Chief Executive Officer

Seacoast Banking Corporation of Florida

815 Colorado Avenue

Stuart, Florida 34994



with a copy to (which copy alone shall not constitute notice):



Ralph F. MacDonald III

Jones Day

1420 Peachtree Street, N.E., Suite 800

Atlanta, Georgia 30309



The Company shall notify the Purchasers and the Escrow Agent promptly upon receipt of a Notice of
Non-Qualification, Notice of Higher Bid, a Winning Bid Notice, a Delay Notice, the Bank’s or the
Company’s determination not to submit or failure to submit a Bid for the Target Institution or the
failure to have a Closing Date on or before April 30, 2010 under Section 5 of the Escrow Agreement,
and the Company’s determination of the allocation of the Non-Contingent Shares, as such terms are
defined in the Escrow Agreement and as provided in the Escrow Agreement. With respect to a
purchase of only the Non-Contingent Shares, the
Company shall notify the Escrow Agent and the respective Purchasers of the number of Non-Contingent
Shares allocated to them and the conditions to the release of the Purchase Price for the
Non-Contingent Shares from Escrow pursuant to the Escrow Agreement shall have been satisfied. This
notice shall be given within five (5) business days of the occurrence of the: (i) receipt of a
Notice of Non-Qualification, (ii) receipt of a Notice of Higher Bid, (iii) the Company’s or Bank’s
determination not to submit or failure to submit a Bid, (iv) receipt of a Delay Notice or (v) the
failure of the Acquisition to close by April 30, 2010.




     6.8. Entire Agreement, Etc. (a) This Agreement (including the Exhibits and Disclosure
Schedules hereto), the Escrow Agreement, the Registration Rights Agreement and, with respect to a
particular Purchaser and the Company, each Non-Disclosure Agreement to which the Company and such
Purchaser is a party and any other agreement entered into between



-35-









 







any Purchaser and the Company in
connection herewith, collectively constitute the entire agreement, and supersedes all other prior
agreements, understandings, representations and warranties, both written and oral, among the
parties, with respect to the subject matter hereof; and (b) this Agreement will not be assignable
by operation of law or otherwise (any attempted assignment in contravention hereof being null and
void); provided that a Purchaser may assign its rights and obligations under this Agreement to any
Affiliate or Person that shares a common discretionary investment adviser, but only if the
transferee agrees in writing for the benefit of the Company (with a copy thereof to be furnished to
the Company) to be bound by the terms of this Agreement (any such transferee shall be included in
the term “Purchaser”); provided, further, that no such assignment shall relieve such Purchaser of
its obligations hereunder. By executing this Agreement, each Purchaser (other than a Section
1.2(c) Purchaser or a Section 1.2(d) Purchaser if such Purchaser wires funds directly to the
Company pursuant to Section 1.2(d)) hereby consents to and agrees to be bound by the Escrow
Agreement.



     6.9. Interpretation; Other Definitions. Wherever required by the context of this
Agreement, the singular shall include the plural and vice versa, and the masculine gender shall
include the feminine and neuter genders and vice versa, and references to any agreement, document
or instrument shall be deemed to refer to such agreement, document or instrument as amended,
supplemented or modified from time to time. All article, section, paragraph or clause references
not attributed to a particular document shall be references to such parts of this Agreement, and
all exhibit, annex and schedule references not attributed to a particular document shall be
references to such exhibits, annexes and schedules to this Agreement. In addition, the following
terms are ascribed the following meanings:




     (a) the term “Affiliate” means, with respect to any person, any person
directly or indirectly controlling, controlled by or under common control with, such
other person. For purposes of this definition, “control” (including, with
correlative meanings, the terms “controlled by” and “under common control
with”) when used with respect to any person, means the possession, directly or
indirectly, of the power to cause the direction of management or policies of such person,
whether through the ownership of voting securities by contract or otherwise;




     (b) the word “or” is not exclusive;




     (c) the words “including,” “includes,” “included” and
“include” are deemed to be followed by the words “without limitation”;




     (d) and the terms “herein,” “hereof” and “hereunder” and
other words of similar import refer to this Agreement as a whole and not to any
particular section, paragraph or subdivision;




     (e) “business day” means any day that is not Saturday or Sunday and that is
not a day on which banking institutions generally are authorized or obligated by law or
executive order to be closed in the States of Florida and New York;




     (f) “person” has the meaning given to it in Section 3(a)(9) of the Exchange
Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act; and



-36-









 






     (g) to the “knowledge of the Company” or “Company’s knowledge” means
the actual knowledge of the Company’s executive officers.



     6.10. Captions. The article, section, paragraph and clause captions herein are for
convenience of reference only, do not constitute part of this Agreement and will not be deemed to
limit or otherwise affect any of the provisions hereof.



     6.11. Severability. If any provision of this Agreement or the application thereof to
any person (including the officers and directors of the parties hereto) or circumstance is
determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or circumstances other than
those as to which it has been held invalid or unenforceable, will 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 materially 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 effect the original intent of the
parties.



     6.12. No Third Party Beneficiaries. Nothing contained in this Agreement, expressed or
implied, is intended to confer upon any person other than the parties hereto, any benefit, right or
remedies, whether as third party beneficiaries or otherwise, except (i) as set forth in Section
2.3(f) and (ii) that the provisions of Section 4.5 shall inure to the benefit of the Persons who
are Indemnified Parties.



     6.13. Time of the Essence. Time is of the essence in the performance of each and
every term of this Agreement.



     6.14. Effectiveness. This Agreement shall be effective upon the execution of this
Agreement by the parties hereto.



     6.15. Public Announcements. Subject to each party’s disclosure obligations imposed by
law or regulation or the rules of any stock exchange upon which its securities are listed, each of
the parties hereto will cooperate with each other in the development and distribution of all news
releases and other public information disclosures with respect to this Agreement and any of the
transactions contemplated by this Agreement, and neither the Company nor any Purchaser will make
any such news release or public disclosure without first notifying the other, and, in each case,
also receiving the other’s consent (which shall not be unreasonably withheld or delayed), provided
that nothing in this Section 6.15 shall prevent the Company from making timely disclosures under
the Securities Act, the Exchange Act and NASDAQ rules and provided further that parties hereto
acknowledge that CapGen will file an amendment to its report on Schedule 13D, filed with the SEC on
April 1, 2010, as required by the Exchange Act rules, disclosing the terms of the transactions
contemplated by this Agreement. The Company will not publicly disclose the
name of any Purchaser
or its investment advisor, except to the extent required by applicable law or authorized in writing
by such Purchaser, and shall make such disclosures to all applicable Governmental Authorities and
NASDAQ. The Company and each Purchaser agree that within one business day following the
Acquisition (or the Closing Date if only Non-Contingent Shares are purchased), the Company shall
publicly disclose the



-37-









 







transactions contemplated by this Agreement. From and after such disclosure,
no Purchaser shall be in possession of any material, non-public information received from the
Company in connection with the Bid or the Acquisition or the purchase of the Convertible Preferred
Securities. On or before 9:00 am (New York City time) on the second business day immediately
following the Acquisition (or the Closing Date if only Non-Contingent Shares are purchased), the
Company will file a Current Report on Form 8-K with the SEC describing the Acquisition, if
applicable, and the terms of this Agreement.



     6.16. Specific Performance. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in accordance with their
specific terms. It is accordingly agreed that the parties shall be entitled to seek specific
performance of the terms hereof, this being in addition to any other remedies to which they are
entitled at law or equity.



     6.17. Independent Nature of Purchasers’ Obligations and Rights. The obligations of
each Purchaser under this Agreement are several and not joint with the obligations of any other
Purchaser under this Agreement, and no Purchaser shall be responsible in any way for the
performance of the obligations of any such other Purchaser under this Agreement. Nothing contained
herein, and no action taken by any Purchaser pursuant hereto, shall be deemed to constitute
Purchaser and any of the other Purchasers as a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that Purchaser and any of the other Purchasers are in
any way acting in concert or as a group with respect to such obligations or the transactions
contemplated by this Agreement. Each Purchaser acknowledges that no other Purchaser has acted as
agent for Purchaser in connection with making its investment hereunder and that no other Purchaser
will be acting as agent of Purchaser in connection with monitoring its investment in the Securities
or enforcing its rights under this Agreement. Each Purchaser shall be entitled to independently
protect and enforce its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose.



     6.18. Survival. The representations and warranties, and the covenants and agreements
to be performed after the Closing Date shall survive the issuance of, and the payment for, the
shares of Convertible Preferred Stock.



-38-









 





     IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized
officers of the parties hereto as of this 8th day of April, 2010.



	 	 	 	 	 
	 	COMPANY:



Seacoast Banking Corporation of Florida

 	 
	 	By:  	/s/ Dennis S. Hudson, III
 	 
	 	 	Name:  	Dennis S. Hudson, III 	 
	 	 	Title:  	Chairman & Chief Executive  Officer 	 
	 








 









 








Investment Agreement

Purchaser Signature Page




TO BE COMPLETED BY PURCHASER ONLY:




Form of organization and jurisdiction of organization of Purchaser:                                                            
                     

Tax ID Number of Purchaser:                                         

Name under which Securities to be registered (including nominee name, if applicable):                     

Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser                     




Notice Information:

Street Address:

Attention:

Fax:

Email:

Telephone:




Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:                     




Wire Instructions for Each Purchaser’s Account



Account Name:

Account No:

ABA Routing/Transit No:

Bank Name:



Contingent Shares:      $                    

Non-Contingent Shares: $ 




	 	 	 	 	 
	 	PURCHASER:



[Name]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



TO BE COMPLETED BY COMPANY ONLY:




Total Number of Shares Subscribed and Accepted:                     

Price per Share of Convertible Preferred Stock purchased: $                    

Non-Contingent Shares Subscribed: $                    

Total Purchase Price: $                    

Is Purchaser an “Institutional Investor?”:                     









 









 








Purchaser Signature Page

To be Completed by Institutional Investor Only



List of Common Accounts (see Section 2.3(d)), including legal name (and if applicable, nominee
name) and Tax ID (and if applicable, nominee Tax ID) of each Account if shares are to be registered
to each account.