Unassociated Document


     

    EXHIBIT
10.2
  

    EXECUTION
VERSION

     

    STOCK
PURCHASE AGREEMENT

     

    BY
AND AMONG

     

    JACKSONVILLE
BANCORP, INC.,

     

    CAPGEN
CAPITAL GROUP IV LP

     

    AND
EACH OF THE OTHER

     

    INVESTORS
NAMED HEREIN

     

    DATED
AS OF

     

    MAY
10, 2010


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    TABLE OF CONTENTS

     

    
      
        
          
            
              
                
                  	 
      	 
      	 
      	
                          Page

                        
	 
      	 
      	 
      	 
      
	
                          ARTICLE
      1

                        	
                          PURCHASE
      AND SALE OF THE PURCHASED SHARES

                        	 
      	
                          1

                        
	 
      	 
      	 
      	 
      
	
                          Section
      1.01

                        	
                          Issuance,
      Sale and Delivery of the Purchased Shares

                        	 
      	
                          1

                        
	 
      	 
      	 
      	 
      
	
                          Section
      1.02

                        	
                          Closing

                        	 
      	
                          2

                        
	 
      	 
      	 
      	 
      
	
                          Section
      1.03

                        	
                          Payment
      of Purchase Price

                        	 
      	
                          2

                        
	 
      	 
      	 
      	 
      
	
                          Section
      1.04

                        	
                          Anti-Dilution

                        	 
      	
                          2

                        
	 
      	 
      	 
      	 
      
	
                          ARTICLE
      2

                        	
                          REPRESENTATIONS
      AND WARRANTIES OF THE COMPANY

                        	 
      	
                          2

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.01

                        	
                          Organization
      and Standing

                        	 
      	
                          3

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.02

                        	
                          Corporate
      Power

                        	 
      	
                          3

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.03

                        	
                          Corporate
      Authority

                        	 
      	
                          3

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.04

                        	
                          Regulatory
      Approvals; Shareholder Approval; No Violations

                        	 
      	
                          4

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.05

                        	
                          Company
      Capital Stock; Purchased Shares

                        	 
      	
                          5

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.06

                        	
                          Company
      Reports; Financial Statements, Etc

                        	 
      	
                          6

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.07

                        	
                          Compliance
      with Applicable Laws; Regulatory Filings; Permits

                        	 
      	
                          8

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.08

                        	
                          No
      Undisclosed Liabilities

                        	 
      	
                          9

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.09

                        	
                          Absence
      of Certain Changes

                        	 
      	
                          9

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.10

                        	
                          Tax
      Matters

                        	 
      	
                          9

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.11

                        	
                          Transactions
      with Affiliates

                        	 
      	
                          12

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.12

                        	
                          Loans

                        	 
      	
                          13

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.13

                        	
                          Other
      Activities of the Company and the Bank

                        	 
      	
                          13

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.14

                        	
                          Material
      Agreements; No Defaults

                        	 
      	
                          13

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.15

                        	
                          Company
      Benefit Plans

                        	 
      	
                          14

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.16

                        	
                          Environmental
      Matters

                        	 
      	
                          15

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.17

                        	
                          Labor
      Matters

                        	 
      	
                          16

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.18

                        	
                          Insurance

                        	 
      	
                          16

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.19

                        	
                          No
      Integration

                        	 
      	
                          16

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.20

                        	
                          No
      Change of Control

                        	 
      	
                          16

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.21

                        	
                          Properties

                        	 
      	
                          17

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.22

                        	
                          Computer
      and Technology Security

                        	 
      	
                          17

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.23

                        	
                          Data
      Privacy

                        	 
      	
                          18

                        
	 
      	 
      	 
      	 
      
	
                          Section
      2.24

                        	
                          No
      Restrictive Covenants

                        	 
      	
                          18

                        


                

              

            

          

        

      

    


    
      
         


      

      
        i

        
          

        

      

      
         


      

    


    TABLE
OF CONTENTS

    (continued)

    


    
      
        
          	 
      	 
      	 
      	
                  Page

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.25

                	
                  Litigation

                	 
      	
                  18

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.26

                	
                  Merger
      Agreement Representations and Warranties

                	 
      	
                  18

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.27

                	
                  No
      Brokers

                	 
      	
                  18

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.28

                	
                  Voting
      of Shares by Directors and Executive Officers

                	 
      	
                  19

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.29

                	
                  Risk
      Management Instruments

                	 
      	
                  19

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.30

                	
                  Adequate
      Capitalization

                	 
      	
                  19

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.31

                	
                  Investment
      Company

                	 
      	
                  19

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.32

                	
                  Price
      of Common Stock

                	 
      	
                  19

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.33

                	
                  Shell
      Company Status

                	 
      	
                  19

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.34

                	
                  Reservation
      of Purchased Shares

                	 
      	
                  19

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.35

                	
                  Substantially
      Similar Agreement

                	 
      	
                  19

                
	 
      	 
      	 
      	 
      
	
                  Section
      2.36

                	
                  Disclosure

                	 
      	
                  19

                
	 
      	 
      	 
      	 
      
	
                  ARTICLE
      3

                	
                  REPRESENTATIONS
      AND WARRANTIES OF THE INVESTORS

                	 
      	
                  20

                
	 
      	 
      	 
      	 
      
	
                  Section
      3.01

                	
                  Organization

                	 
      	
                  20

                
	 
      	 
      	 
      	 
      
	
                  Section
      3.02

                	
                  Bank
      Holding Company Status

                	 
      	
                  20

                
	 
      	 
      	 
      	 
      
	
                  Section
      3.03

                	
                  Authorization

                	 
      	
                  20

                
	 
      	 
      	 
      	 
      
	
                  Section
      3.04

                	
                  Accredited
      Investor, etc

                	 
      	
                  21

                
	 
      	 
      	 
      	 
      
	
                  Section
      3.05

                	
                  Regulatory
      Approvals

                	 
      	
                  23

                
	 
      	 
      	 
      	 
      
	
                  Section
      3.06

                	
                  Sufficient
      Funds

                	 
      	
                  23

                
	 
      	 
      	 
      	 
      
	
                  ARTICLE
      4

                	
                  CONDITIONS
      TO THE OBLIGATIONS OF THE INVESTORS

                	 
      	
                  23

                
	 
      	 
      	 
      	 
      
	
                  Section
      4.01

                	
                  Representations
      and Warranties to be True and Correct

                	 
      	
                  23

                
	 
      	 
      	 
      	 
      
	
                  Section
      4.02

                	
                  Performance

                	 
      	
                  23

                
	 
      	 
      	 
      	 
      
	
                  Section
      4.03

                	
                  Audited
      Statements

                	 
      	
                  23

                
	 
      	 
      	 
      	 
      
	
                  Section
      4.04

                	
                  No
      Material Adverse Change

                	 
      	
                  24

                
	 
      	 
      	 
      	 
      
	
                  Section
      4.05

                	
                  Corporate
      Approvals; Shareholder Approval

                	 
      	
                  24

                
	 
      	 
      	 
      	 
      
	
                  Section
      4.06

                	
                  Closing
      of Mergers

                	 
      	
                  24

                
	 
      	 
      	 
      	 
      
	
                  Section
      4.07

                	
                  Regulatory
      Approvals

                	 
      	
                  24

                
	 
      	 
      	 
      	 
      
	
                  Section
      4.08

                	
                  Registration
      Rights Agreement

                	 
      	
                  25

                
	 
      	 
      	 
      	 
      
	
                  Section
      4.09

                	
                  Sales
      of Shares

                	 
      	
                  25

                


        

      

    


    
      
         


      

      
        ii

        
          

        

      

      
         


      

    


    TABLE
OF CONTENTS

    (continued)

    


    
      
        
          	 
      	 
      	 
      	
                  Page

                
	 
      	 
      	 
      	 
      
	
                  Section
      4.10

                	
                  No
      Suspensions of Trading in Common Stock; Listing

                	 
      	
                  25

                
	 
      	 
      	 
      	 
      
	
                  ARTICLE
      5

                	
                  CONDITIONS
      TO THE OBLIGATIONS OF THE COMPANY

                	 
      	
                  25

                
	 
      	 
      	 
      	 
      
	
                  Section
      5.01

                	
                  Representations
      and Warranties to be True and Correct

                	 
      	
                  25

                
	 
      	 
      	 
      	 
      
	
                  Section
      5.02

                	
                  Performance

                	 
      	
                  25

                
	 
      	 
      	 
      	 
      
	
                  ARTICLE
      6

                	
                  COVENANTS

                	 
      	
                  26

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.01

                	
                  Reasonable
      Best Efforts

                	 
      	
                  26

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.02

                	
                  Filings
      and Other Actions

                	 
      	
                  26

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.03

                	
                  Corporate
      Approvals; Takeover Laws

                	 
      	
                  27

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.04

                	
                  Shareholder
      Approvals

                	 
      	
                  27

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.05

                	
                  Proxy
      Statement; Other Filings

                	 
      	
                  28

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.06

                	
                  Registration
      Rights

                	 
      	
                  29

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.07

                	
                  Board
      Matters

                	 
      	
                  29

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.08

                	
                  Restricted
      Shares

                	 
      	
                  30

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.09

                	
                  Information,
      Access and Confidentiality

                	 
      	
                  32

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.10

                	
                  Conduct
      of Business Prior to Closing

                	 
      	
                  33

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.11

                	
                  Company
      Forbearances

                	 
      	
                  33

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.12

                	
                  Investor
      Call

                	 
      	
                  36

                
	 
      	 
      	 
      	 
      
	
                  Section
      6.13

                	
                  Press
      Releases; Public Disclosure

                	 
      	
                  36

                
	 
      	 
      	 
      	 
      
	
                  ARTICLE
      7

                	
                  OTHER
      AGREEMENTS

                	 
      	
                  37

                
	 
      	 
      	 
      	 
      
	
                  Section
      7.01

                	
                  Bank
      Holding Company Status

                	 
      	
                  37

                
	 
      	 
      	 
      	 
      
	
                  Section
      7.02

                	
                  Preemptive
      Rights

                	 
      	
                  37

                
	 
      	 
      	 
      	 
      
	
                  Section
      7.03

                	
                  Compensation
      Matters

                	 
      	
                  39

                
	 
      	 
      	 
      	 
      
	
                  Section
      7.04

                	
                  Reasonable
      Best Efforts

                	 
      	
                  39

                
	 
      	 
      	 
      	 
      
	
                  Section
      7.05

                	
                  Manner
      of Offerings

                	 
      	
                  39

                
	 
      	 
      	 
      	 
      
	
                  Section
      7.06

                	
                  Indemnification

                	 
      	
                  40

                
	 
      	 
      	 
      	 
      
	
                  ARTICLE
      8

                	
                  TERMINATION

                	 
      	
                  41

                
	 
      	 
      	 
      	 
      
	
                  Section
      8.01

                	
                  Methods
      of Termination

                	 
      	
                  41

                
	 
      	 
      	 
      	 
      
	
                  Section
      8.02

                	
                  Effect
      of Termination

                	 
      	
                  42

                
	 
      	 
      	 
      	 
      
	
                  ARTICLE
      9

                	
                  MISCELLANEOUS

                	 
      	
                  43

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.01

                	
                  Certain
      Definitions

                	 
      	
                  43

                


        

      

    


    
      
         


      

      
        iii

        
          

        

      

      
         


      

    


    TABLE
OF CONTENTS

    (continued)

    


    
      
        
          	 
      	 
      	 
      	
                  Page

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.02

                	
                  Specific
      Performance

                	 
      	
                  44

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.03

                	
                  Expenses

                	 
      	
                  45

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.04

                	
                  Survival

                	 
      	
                  45

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.05

                	
                  Notices

                	 
      	
                  45

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.06

                	
                  No
      Assignment; No Delegation

                	 
      	
                  46

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.07

                	
                  No
      Third Party Beneficiaries

                	 
      	
                  46

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.08

                	
                  Governing
      Law

                	 
      	
                  46

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.09

                	
                  Amendments
      and Waivers

                	 
      	
                  46

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.10

                	
                  Severability

                	 
      	
                  47

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.11

                	
                  Captions

                	 
      	
                  47

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.12

                	
                  No
      Waiver; Cumulative Remedies

                	 
      	
                  47

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.13

                	
                  Further
      Assurances

                	 
      	
                  47

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.14

                	
                  No
      Construction Against Drafter

                	 
      	
                  47

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.15

                	
                  Entire
      Agreement

                	 
      	
                  47

                
	 
      	 
      	 
      	 
      
	
                  Section
      9.16

                	
                  Counterparts

                	 
      	
                  47

                


        

      

    


    
      
         


      

      
        iv

        
          

        

      

      
         


      

    


    SCHEDULES

     

    Disclosure
Schedule

     

    
      	
              SCHEDULE
      I

            	
              Subsidiaries

            
	 
      	 
      
	
              SCHEDULE
      II

            	
              Form
      of Amended and Restated Articles of Incorporation and
    Bylaws

            
	 
      	 
      
	
              SCHEDULE
      III

            	
              Form
      of Registration Rights
Agreement

            


    


    
      
         


      

      
        v

        
          

        

      

      
         


      

    


    INDEX TO DEFINED
TERMS

    


    
      
        	
                2008
      MOU

              	 
      	
                8

              
	
                2009
      Audited Statements

              	 
      	
                24

              
	
                ABI

              	 
      	
                1

              
	
                Accredited
      Investor

              	 
      	
                43

              
	
                affiliate

              	 
      	
                43

              
	
                Agreement

              	 
      	
                1

              
	
                Applicable
      Law

              	 
      	
                43

              
	
                Bank

              	 
      	
                1

              
	
                Bank
      Merger

              	 
      	
                1

              
	
                Bank
      Merger Agreement

              	 
      	
                1

              
	
                beneficial
      ownership

              	 
      	
                43

              
	
                Benefit
      Plan

              	 
      	
                14

              
	
                BHCA

              	 
      	
                3

              
	
                Board

              	 
      	
                44

              
	
                BOLI

              	 
      	
                9

              
	
                Business
      Day

              	 
      	
                44

              
	
                CapGen

              	 
      	
                1

              
	
                Closing

              	 
      	
                2

              
	
                Closing
      Date

              	 
      	
                2

              
	
                Code

              	 
      	
                8

              
	
                Commitments

              	 
      	
                26

              
	
                Common
      Stock

              	 
      	
                1

              
	
                Company

              	 
      	
                1

              
	
                Company
      Board Recommendation

              	 
      	
                4

              
	
                Company
      Reports

              	 
      	
                6

              
	
                Covered
      Securities

              	 
      	
                38

              
	
                D&O
      Insurance

              	 
      	
                16

              
	
                Designated
      Securities

              	 
      	
                38

              
	
                Disclosure
      Schedule

              	 
      	
                5

              
	
                Enforcement
      Actions

              	 
      	
                8

              
	
                Environmental
      Law

              	 
      	
                15

              
	
                ERISA

              	 
      	
                14

              
	
                ERISA
      Affiliate

              	 
      	
                14

              
	
                Exchange
      Act

              	 
      	
                44

              
	
                FBCA

              	 
      	
                4

              
	
                FDI
      Act

              	 
      	
                36

              
	
                FDIC

              	 
      	
                8

              
	
                Federal
      Reserve

              	 
      	
                8

              
	
                Federal
      Reserve Resolutions

              	 
      	
                8

              
	
                Florida
      Division

              	 
      	
                8

              
	
                GAAP

              	 
      	
                44

              
	
                Governmental
      Authority

              	 
      	
                4

              
	
                Group

              	 
      	
                10

              
	
                Hazardous
      Substance

              	 
      	
                16

              
	
                Indemnified
      Person

              	 
      	
                41

              
	
                Insider
      Shareholder Votes

              	 
      	
                19

              
	
                Investment

              	 
      	
                1

              
	
                Investor
      Call

              	 
      	
                2

              
	
                Investor
      Party

              	 
      	
                40

              
	
                Investor
      Percentage Interest

              	 
      	
                38

              
	
                Investors

              	 
      	
                1

              
	
                Leases

              	 
      	
                17

              
	
                Legend
      Removal Date

              	 
      	
                32

              
	
                Liens

              	 
      	
                2

              
	
                Material
      Adverse Effect

              	 
      	
                44

              
	
                Merger

              	 
      	
                1

              
	
                Merger
      Agreement

              	 
      	
                1

              
	
                Merger
      Closings

              	 
      	
                1

              
	
                Merger
      Effective Time

              	 
      	
                2

              
	
                Mergers

              	 
      	
                1

              
	
                Money
      Laundering Laws

              	 
      	
                9

              
	
                Nasdaq
      Stock Market

              	 
      	
                5

              
	
                Oceanside
      Bank

              	 
      	
                1

              
	
                OFAC

              	 
      	
                9

              
	
                Offer
      Period

              	 
      	
                38

              
	
                Offering
      Materials

              	 
      	
                22

              
	
                Original
      Date

              	 
      	
                28

              
	
                Other
      Filings

              	 
      	
                29

              
	
                Permits

              	 
      	
                8

              
	
                person

              	 
      	
                44

              
	
                Press
      Release

              	 
      	
                37

              
	
                Private
      Placement

              	 
      	
                1

              
	
                Private
      Placement Documents

              	 
      	
                22

              
	
                Proposals

              	 
      	
                28

              
	
                Proxy
      Statement

              	 
      	
                28

              
	
                Puchased
      Shares

              	 
      	
                1

              
	
                Purchase
      Price

              	 
      	
                2

              
	
                Qualified
      Offering

              	 
      	
                38

              
	
                Qualified
      Offering Notice

              	 
      	
                38

              
	
                Registration
      Statement

              	 
      	
                29

              
	
                Regulatory
      Authority

              	 
      	
                8

              
	
                Regulatory
      Reports

              	 
      	
                8

              
	
                Related
      Interest

              	 
      	
                44

              
	
                Requisite
      Shareholder Vote

              	 
      	
                5

              
	
                Resale
      Registration Statement

              	 
      	
                32

              
	
                Returns

              	 
      	
                10

              
	
                Rule
      144A offering

              	 
      	
                39

              
	
                SEC

              	 
      	
                44

              
	
                Securities
      Act

              	 
      	
                44

              
	
                Shareholder
      Approvals

              	 
      	
                28

              


      

    


    
      
         


      

      
        vi

        
          

        

      

      
         


      

    

    


    
      
        	
                Shareholders’
      Meeting

              	 
      	
                28

              
	
                Subsidiary

              	 
      	
                44

              
	
                Takeover
      Laws

              	 
      	
                4

              
	
                Taxes

              	 
      	
                10

              
	
                Termination
      Date

              	 
      	
                41

              
	
                Termination
      Fee

              	 
      	
                43

              
	
                Transaction

              	 
      	
                2

              


      

    

    


    
      
        
        

      

      
        vii

        
          

        

      

      
        
        

      

    

     

    STOCK
PURCHASE AGREEMENT

     

    This
Stock Purchase Agreement, dated as of May 10, 2010 (this “Agreement”), is by
and among JACKSONVILLE BANCORP, INC., a Florida corporation (the “Company”), and CAPGEN
CAPITAL GROUP IV LP, a Delaware limited partnership (“CapGen”), and each of
the respective other investors set forth on the signature pages to this
Agreement (collectively, with CapGen, the “Investors”).

     

    The
Company seeks to issue and sell to CapGen, and CapGen seeks to purchase (the
“Investment”),
1,960,144 shares of common stock, par value $.01 per share, of the Company (the
“Common
Stock”), at a purchase price of $10.00 per share on the terms and subject
to the conditions set forth in this Agreement. The Company is also selling
Common Stock in the aggregate amount of $10 million to other Accredited
Investors, in each case, at a purchase price per share of $10.00 (collectively,
with the Investment, the “Private Placement”).
The shares of Common Stock to be sold on the Private Placement are collectively
referred to herein as the “Purchased Shares.”
The number of Purchased Shares to be purchased by each Investor hereunder is set
forth on such Investor’s signature page. Each of CapGen and the other Investors
are acting separately.

     

    The
Company has agreed to acquire Atlantic BancGroup, Inc., a Florida corporation
(“ABI”),
through a merger (the “Merger”) pursuant to
the terms and conditions of an Agreement and Plan of Merger, dated as of May 10,
2010, by and between the Company and ABI (the “Merger
Agreement”).

     

    The
Merger Agreement includes an Agreement and Plan of Merger (the “Bank Merger
Agreement”) pursuant to which ABI’s subsidiary, Oceanside Bank (“Oceanside Bank”),
will be merged with the Company’s subsidiary, The Jacksonville Bank,
Jacksonville, Florida, a Florida state-chartered commercial bank (the “Bank”). Herein, the
merger of Oceanside Bank and the Bank is called the “Bank Merger”, and the
Merger and the Bank Merger are collectively called the “Mergers”. The Company
will issue, pursuant to the Merger Agreement, shares of Common Stock in exchange
for all the outstanding common stock of ABI, except shares held by dissenting
shareholders, if any.

     

    The
obligations of the Investor to consummate the transactions contemplated by this
Agreement are specifically conditioned upon the completion of both Mergers prior
to the Investment by Investor. The closings of the Mergers (the “Merger Closings”) and
the closing of the Investment will occur on the same day.

     

    In
consideration of the premises, and other good and valuable consideration, the
receipt of which is acknowledged, the parties, intending to be legally bound,
agree as follows:

     

    ARTICLE
1

    PURCHASE
AND SALE OF THE PURCHASED SHARES

     

    Section
1.01          Issuance, Sale and Delivery
of the Purchased Shares. Subject to the terms and conditions set forth in
this Agreement, at the Closing, the Company shall issue, sell and deliver to
each Investor, and each Investor shall, severally and not jointly, purchase from
the Company, the Purchased Shares set forth on such Investor’s signature page,
free and clear of all liens, pledges, security interests, charges and other
encumbrances, including any restrictions on voting such Purchased Shares (“Liens”), other than
those placed thereon by or on behalf of an Investor with respect solely to such
Investor’s Purchased Shares (such issuance, sale and purchase of the Purchased
Shares, along with the other commitments by each party to the other set forth in
this Agreement, the “Transaction”).


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Section
1.02          Closing. The parties
shall consummate the Transaction at a mutually agreeable location upon
satisfaction (or waiver, other than a waiver of any condition set forth in Section 4.06) of all
conditions to Closing; provided that such consummation may
not occur prior to the end of the 20-day period commencing following the
issuance of a notice by CapGen to its investors to call funds required to
purchase the Purchased Shares that CapGen is acquiring (the “Investor Call”). The
Company and the Investors will cooperate with a view to the Company closing both
Mergers (the effective dates and times of the Mergers are each called a “Merger Effective
Time”) not sooner than set forth in the preceding sentence and at the end
of a calendar month, with the closing (the “Closing”) of the
purchase of the Purchased Shares by the Investor occurring following the Merger
Effective Times for both Mergers but on the same day (the “Closing Date”). At
the Closing, subject to the terms and conditions hereof, the Company shall issue
and deliver to each Investor the Purchased Shares set forth on such Investor’s
signature page in accordance with Section 1.01 in
certificate form or in uncertificated book-entry form pursuant to instructions
of such Investor provided to the Company at least three Business Days in advance
of the Closing Date.

     

    Section
1.03          Payment of Purchase
Price. As payment in full for the Purchased Shares, on the Closing Date,
upon receipt of the Purchased Shares, each Investor shall deliver to the Company
an aggregate amount equal to $10.00 per Purchased Share to be acquired by each
Investor hereunder (such aggregate amount, the “Purchase Price”).
Payment of the Purchase Price shall be made in immediately available funds by
wire transfer to a bank account that is designated by the Company at least three
Business Days in advance of the Closing Date.

     

    Section
1.04          Anti-Dilution. If,
between the date of this Agreement and the Closing Date, the outstanding shares
of Common Stock are changed or exchanged for a different number of kind of
shares or securities as a result of any reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split or other
substantially similar transaction, the parties shall make an appropriate and
proportionate adjustment to the number of Purchased Shares or the Purchase
Price.

     

    ARTICLE
2

    REPRESENTATIONS
AND WARRANTIES OF THE COMPANY

     

    The
Company represents and warrants to each Investor, as of the date hereof and as
of the Closing Date (except to the extent such representations and warranties
are limited expressly to an earlier specific date, in which case such
representations and warranties were accurate on and as of such specified date)
as follows and understands that each Investor is relying on these
representations and warranties:


    
      
         


      

      
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    Section
2.01          Organization and
Standing. 

     

    (a)           The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida and is registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended (the “BHCA”). The Company
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction where the ownership or operation of its assets
or properties or conduct of its business requires such qualification, except
where the failure to be so qualified or in good standing is not reasonably
likely to have, individually or in the aggregate, a Material Adverse
Effect.

     

    (b)           Schedule I sets forth
all Subsidiaries of the Company. The Company owns, directly or indirectly, all
of the capital stock of each Subsidiary free and clear of any and all Liens, and
all the issued and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and
similar rights to subscribe for or purchase securities. The Company’s principal
Subsidiary and sole banking Subsidiary is the Bank. Each Subsidiary is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization or incorporation. Each Subsidiary is duly qualified
to do business and is in good standing as a foreign corporation in each
jurisdiction where the ownership or operation of its assets or properties or
conduct of its business requires such qualification, except where the failure to
be so qualified or in good standing is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect. The Bank’s deposits
are insured up to applicable limits by the FDIC, and all FDIC insurance premiums
and assessments required to be paid have been paid when due.

     

    Section
2.02          Corporate Power. The
Company and each Subsidiary has all requisite power and authority (corporate and
other) to carry on its business as it is now being conducted to own, lease or
operate all its properties and assets, and to complete the Mergers and to
conduct the business and own lease and operate all properties and assets of ABI,
Oceanside Bank and their subsidiaries immediately after the Mergers. The Company
has all requisite corporate power and authority and has taken all corporate
action necessary in order to execute, deliver and perform its obligations under
this Agreement and to consummate the Transaction. Each of the Company and the
Bank has all requisite corporate power and authority and has taken all corporate
action, subject to shareholder approval, necessary in order to execute, deliver
and perform its obligations under the Merger Agreements and this Agreement and
to consummate the Mergers and the Private Placement (including the
Transaction).

     

    Section
2.03          Corporate Authority.


     

    (a)           This
Agreement has been duly executed and delivered by the Company and, assuming the
due authorization, execution and delivery of this Agreement by the Investor,
this Agreement is a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors’ rights
or to general equity principles. The Merger Agreement and the Bank Merger
Agreement have been duly authorized by all necessary corporate action of the
Company and the Bank. The Merger Agreement and the Bank Merger Agreement have
been duly executed and delivered by the Company and the Bank and the other
parties thereto, and are valid and legally binding agreements, enforceable by
the Company and the Bank in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors’ rights
or to general equity principles.


    
      
         


      

      
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    (b)          The
Board (at a meeting or meetings duly called and held) has unanimously (i)
determined that this Agreement and the Private Placement (including the
Transaction) are advisable and fair to and in the best interests of, the
shareholders of the Company, (ii) directed that the Private Placement (including
the Transaction) be submitted to the shareholders of the Company for their
approval and resolved to recommend the approval of the Private Placement
(including the Transaction) and the amendment and restatement of the Company’s
Articles of Incorporation by the shareholders of the Company (the “Company Board
Recommendation”), and (iii) irrevocably taken all necessary steps to
render the provisions of Section 607.0901 of the Florida Business Corporation
Act (the “FBCA”) regarding
business combinations with “interested shareholders” and Section 607.0902 of the
FBCA regarding “control-share acquisitions,” as well as similar provisions set
forth in the Company’s articles of incorporation or other organizational
documents, inapplicable to the execution and delivery of this Agreement and the
consummation of the Private Placement (including the Transaction). Giving effect
to the Board actions described in this Section 2.03(b), no
U.S. federal or state “moratorium,” “control share acquisition,” “business
combination,” “fair price” or other form of anti-takeover laws or regulations
(such laws or regulations, “Takeover Laws”) are
applicable to the execution, delivery or performance of this Agreement or the
consummation of the Private Placement (including the Transaction). The Company
has no shareholder rights plan, poison pill or similar arrangement relating to
accumulations of beneficial ownership of Common Stock or a change in control of
the Company.

     

    Section
2.04          Regulatory Approvals;
Shareholder Approval; No Violations. 

     

    (a)           No
consents, approvals, permits, orders, authorizations of, exemptions, reviews or
waivers by, or notices, reports, filings, declarations or registrations with,
any federal, state or local court, governmental, legislative, judicial,
administrative authority, Regulatory Authority, taxing authority, agency,
commission, body or other governmental entity or self regulatory organization
(each, a “Governmental
Authority”) or with any third party are required to be made or obtained
by the Company, the Bank or any Subsidiary of either of them in connection with
the execution, delivery and performance by the Company of this Agreement or the
consummation of the purchase of the Purchased Shares or any other aspect of the
Transaction or the consummation of the Mergers except for (i) the necessary
approvals of the Merger and the Bank Merger by the Federal Reserve, the FDIC and
the Florida Division, respectively; (ii) the necessary approvals of CapGen to
purchase the Purchased Shares and become a bank holding company controlling the
Company as required by the Transaction and notices to the Federal Reserve of the
proposed purchases by the other Investors; (iii) those already obtained or
made; and (iv) any securities or “blue sky” filings of any
state.


    
      
         


      

      
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    (b)           In
addition to the shareholder vote required by the rules and regulations of Nasdaq
applicable to companies whose common stock is listed on the Nasdaq Global Market
(the “Nasdaq Stock
Market”) in connection with the issuance of the Purchased Shares, the
only vote of the holders of outstanding securities of the Company required by
the Company’s articles of incorporation or bylaws, Applicable Law, or otherwise,
to consummate the sale of the Purchased Shares and approve the adoption of the
Amended and Restated Articles of Incorporation set forth on Schedule II is the
affirmative vote of the holders of not less than a majority of the outstanding
shares of Common Stock, voting together as a single class, except for those
provisions of the Amended and Restated Articles of Incorporation listed in
Section 2.04(b) of the Company’s disclosure schedule (the “Disclosure
Schedule”), for which 66 2/3% vote of all outstanding shares of Common
Stock, voting together as a single class, is required (collectively, all
required shareholder votes are the “Requisite Shareholder
Vote” ).

     

    (c)           The
execution, delivery and performance of this Agreement by the Company does not,
and (assuming the Requisite Shareholder Vote is obtained) the consummation by
the Company of the Private Placement (including the Transaction) and the Mergers
will not, (i) constitute or result in a breach or violation of, or a
default under, the acceleration of any obligations or penalties or the creation
of any Lien or exception to title of any kind on the assets of the Company or
any Subsidiaries (with or without notice, lapse of time, or both) pursuant to,
agreements binding upon the Company or any Subsidiary or to which the Company or
any Subsidiary or any of their respective properties is subject or bound or any
law, regulation, judgment or governmental or non-governmental permit or license
to which the Company or any Subsidiary or any of their respective properties is
subject; except, in the case of this clause (i), for any breach, violation,
default, acceleration, debt repayment trigger or creation that, individually or
in the aggregate, is not reasonably likely to have a Material Adverse Effect; or
(ii) constitute or result in a breach or violation of, or a default under,
the articles of incorporation or the bylaws of the Company or the organizational
documents of any Subsidiary, in each case, effective as of the Closing
Date.

     

    Section
2.05          Company Capital Stock;
Purchased Shares. (a) As of the date hereof, the authorized capital stock
of the Company consists solely of 8,000,000 shares of Common Stock, of which
1,749,526 shares are issued and outstanding (excluding shares of unvested
time-based restricted stock and performance-based restricted stock) and
2,000,000 shares of preferred stock, par value $0.01 per share, of which no
shares have been designated or are issued or outstanding. As of the date hereof,
69,000 shares of Common Stock are issuable upon the exercise of outstanding
options to acquire such shares, there are 91,000 outstanding shares of unvested
time-based and performance-based restricted Common Stock, 249,503 shares of
Common Stock are issuable to ABI’s shareholders pursuant to the Merger
Agreement, and 160,000 shares of Common Stock have been reserved for issuance
upon exercise of stock options with a weighted-average exercise price of $14.52,
which have been granted and remained outstanding as of May 10, 2010. The
outstanding shares of Common Stock have been duly authorized and are validly
issued, fully paid and nonassessable, and are not subject to preemptive rights
(and were not issued in violation of any preemptive rights). No options, rights
or warrants have been granted with respect to shares of Common Stock since
December 31, 2009.


    
      
         


      

      
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    (b)           The
Purchased Shares have been duly authorized by all necessary corporate action on
the part of the Company subject to the receipt of the Requisite Shareholder
Vote, and, when issued and delivered as provided in this Agreement, will be duly
and validly issued, fully paid and nonassessable, and the issuance thereof will
not be subject to any preemptive rights, except in favor of the Investors as
provided herein. Except with respect to the options and restricted stock
described in Section
2.05(a), the issuance of Common Stock pursuant to this Agreement and the
Common Stock to be issued pursuant to the Merger Agreement, neither the Company
nor any Subsidiary has and is bound by any outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character calling for the
purchase or issuance of, or securities or rights convertible into or
exchangeable for, any shares of capital stock of the Company or any securities
representing the right to purchase or otherwise receive any shares of capital
stock of the Company (including any rights plan or agreement). There are no
outstanding securities or instruments of the Company or which contain any
redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company is or may become bound to
redeem a security of the Company. There are no securities or instruments
containing anti-dilution or similar provisions that will be triggered by the
issuance of the Purchased Shares.

     

    Section
2.06         Company Reports; Financial
Statements, Etc. (a) The Company and each Subsidiary has filed or
furnished, as applicable, on a timely basis, all forms, filings, registrations,
submissions, statements, certifications, reports and documents required to be
filed or furnished by it with the SEC under the Exchange Act or the Securities
Act since December 31, 2006. Such forms, statements, reports and documents
filed or furnished since December 31, 2007, including any amendments
thereto, are called the “Company Reports”.
Each of the Company Reports to the SEC, at the time of its filing or being
furnished, complied as to form in all material respects with the applicable
requirements of the Securities Act and the Exchange Act applicable to the
Company Reports. As of their respective dates (or, if amended, as of the date of
such amendment), the Company Reports did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances in
which they were made, not misleading. 

     

    (b)           The
Company’s consolidated financial statements (including, in each case, any notes
thereto) contained in the Company Reports: (i) were prepared in accordance
with GAAP applied on a consistent basis throughout the periods indicated (except
as may be indicated in the notes thereto or, in the case of interim consolidated
financial statements, where information and footnotes contained in such
financial statements are not required under the rules of the SEC to be in
compliance with GAAP); and (ii) complied as to form, as of their respective
filing dates, in all material respects with applicable accounting requirements
and with the published rules and regulations of the SEC with respect
thereto. Such consolidated financial statements fairly present, in all material
respects, the consolidated financial position, consolidated results of
operations, consolidated changes in shareholder equity and consolidated cash
flows of the Company and its consolidated Subsidiaries as of the respective
dates thereof and for the respective periods covered thereby (subject, in the
case of unaudited statements, to normal year-end adjustments that were not and
that are not expected to be, individually or in the aggregate, material to the
Company and its consolidated Subsidiaries taken as a whole). All annual
financial statements of the Company have been audited by independent registered
public accounting firms.

     

    (c)           The
Company is in compliance in all material respects with the applicable listing
and corporate governance rules and regulations of the Nasdaq Stock Market, its
successor or other stock exchange upon which any Company securities are
listed.


    
      
         


      

      
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    (d)           The
Company maintains disclosure controls and procedures required by
Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and
procedures are designed to ensure that information required to be disclosed by
the Company in the reports that it files or submits under the Exchange Act or
otherwise is recorded, processed, summarized and reported, within the time
periods specified in the SEC’s rules and forms. Such disclosure controls and
procedures include, without limitation, controls and procedures designed to
ensure that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive and principal
financial officers, as appropriate to allow timely decisions regarding required
disclosure. The Company maintains internal control over financial reporting (as
defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act).
Such internal control over financial reporting is designed to provide reasonable
assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP and
includes those policies and procedures that (i) pertain to the maintenance
of records that in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of the Company, (ii) provide
reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with GAAP, and that receipts
and expenditures of the Company are being made only in accordance with
authorizations of management and directors of the Company, and
(iii) provide reasonable assurance regarding prevention or timely detection
of unauthorized acquisition, use or disposition of the Company’s assets that
could have a material effect on its financial statements.

     

    (e)           The
Company has disclosed, based on the most recent evaluation of its chief
executive officer and its chief financial officer prior to the date hereof, to
the Company’s auditors and the audit committee of the Board, (i) any
significant deficiencies and material weaknesses in the design or operation of
its internal control over financial reporting that are reasonably likely to
adversely affect the Company’s ability to record, process, summarize and report
financial information and has identified for the Company’s auditors and audit
committee of the Board any material weaknesses in internal control over
financial reporting; and (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
Company’s internal control over financial reporting. Since December 31,
2007, no material complaints, allegation, assertion or claim, whether written or
oral from any source regarding accounting, internal accounting controls or
auditing matters, and no concerns from the Company employees regarding
questionable accounting or auditing matters, have been received by the Company.
No attorney representing the Company or any Subsidiary, whether or not employed
by the Company or any Subsidiary, has reported evidence of a violation of
securities laws, breach of fiduciary duty or similar violation by the Company or
any of its officers, directors, employees or agents to the Company’s chief legal
officer, audit committee (or other committee designated for the purpose) of the
Board or the Board pursuant to the rules adopted pursuant to
Section 307 of the Sarbanes-Oxley Act of 2002.

     

    (f)           There
is no transaction, arrangement, or other relationship between the Company (or
any Subsidiary) and an unconsolidated or other off-balance sheet entity that is
required to be disclosed by the Company in its Exchange Act filings and is not
so disclosed.


    
      
         


      

      
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    Section
2.07          Compliance with Applicable
Laws; Regulatory Filings; Permits. (a) Neither the Company nor its
Subsidiaries is in violation of, and has not violated or been charged with a
violation of, any Applicable Law, except for (i) the matters covered by the
Memorandum of Understanding, by and between the Company, the Bank and the
Federal Deposit Insurance Corporation (“FDIC”), the Florida
Division of Financial Institutions (the “Florida Division”) or
their delegees (the “2008 MOU”) or the
resolutions adopted by the Board on October 28, 2008 (the “Federal Reserve
Resolutions”) at
the request of the Board of Governors of Federal Reserve System or its delegee
(the “Federal
Reserve”); or (ii) such violations as would not have a Material Adverse
Effect. Herein, the MOU and the Federal Reserve Resolutions are collectively
called the “Enforcement
Actions”). The Company and the Bank are in compliance in all respects
with the Enforcement Actions, and have no notice from the FDIC, the Florida
Division or the Federal Reserve of any breach of or noncompliance with the
Enforcement Actions.

     

    (b)           The
Company and the Subsidiaries have timely filed all reports and statements,
together with any amendments required to be made with respect thereto (the
“Regulatory
Reports”), that they were required to file since December 31, 2006
with the Federal Reserve, the FDIC, the Florida Division (each a “Regulatory
Authority”) or any other Governmental Authority having jurisdiction over
its business or any of its assets or properties, and have timely paid all fees
and assessments due and payable in connection therewith. As of their respective
dates, such reports and statements complied in all material respects with all
the laws, rules and regulations of the applicable Regulatory Authority with
which they were filed. As of their respective dates (or, if amended, as of the
date of such amendment), the Regulatory Reports did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading.

     

    (c)           The
Company and the Subsidiaries hold all material registrations, licenses, permits
and franchises (“Permits”) as are
required to conduct their respective businesses as now conducted (including,
without limitation, any insurance or securities activities), and all such
licenses, permits and franchises are valid and in full force and effect. No
suspension or cancellation of any such Permits has been initiated or threatened,
and all filings, applications and registrations with respect thereto are
current.

     

    (d)           The
Company and the Subsidiaries are in compliance with Section 409A of the Internal
Revenue of 1986, as amended (the “Code”), and
Applicable Laws and rules and policies of applicable Regulatory Authorities with
respect to any bank-owned life insurance (“BOLI”) or similar
insurance, regardless of where the insurance is held.

     

    (e)           The
operations of the Company and 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 Bank Secrecy Act, the USA Patriot Act, 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 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.


    
      
         


      

      
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    (f) 
          Neither the Company
nor Subsidiary nor, to the knowledge of the Company, any director, officer,
agent, employee or affiliate of the Company or any 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.

     

    (g)           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 other unlawful bribe,
rebate, payoff, influence payment, kickback or other material unlawful payment
to any foreign or domestic government official or employee.

     

    (h)           The
Company has no knowledge of any facts and circumstances, and has no reason to
believe that any facts or circumstances exist, that would cause any of its
Subsidiary banking institutions: (i) to be assigned a CRA rating by federal or
state banking regulators lower than “satisfactory”; or (ii) to be deemed to be
operating in violation, in any material respect, of the Money Laundering
Laws.

     

    Section
2.08          No Undisclosed
Liabilities. Neither the Company nor the Subsidiaries have any
liabilities of any nature, whether accrued, absolute, matured or unmatured,
contingent or otherwise, and whether due or to become due, probable of assertion
or not, except liabilities that (a) were incurred in the ordinary course of
business, or (b) are properly reflected in the Company’s most recent
consolidated financial statements contained in the Company Reports and the
Regulatory Reports to the extent required to be so reflected or reserved against
in accordance with GAAP or requirements of the Governmental
Authorities.

     

    Section
2.09          Absence of Certain
Changes. Since December 31, 2008, (a) the Company and
Subsidiaries have conducted their respective businesses in all material respects
in the ordinary course, consistent with prior practice; and (b) no event or
events have occurred that have had or would be reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect, unless such changes
are contemplated herein.

     

    Section
2.10          Tax Matters. (a) For
purposes of this Section 2.10, the
following definitions shall apply:

     

    (i)           The
term “Group”
means, individually and collectively, (A) the Company; (B) the Bank; (C) the
affiliated group as defined in Section 1504(a) of the Code of which the Bank is
or has been a member at any time; and (D) any individual, trust, corporation,
partnership, limited liability company or any other entity as to which the
Company or the Bank is liable for Taxes incurred by such individual or entity
either as a transferee, or pursuant to Treasury Regulations Section 1.1502-6, or
pursuant to any other provision of federal, territorial, state, local or foreign
law or regulations, including without limitation as part of a combined or
unitary group.

     


    
      
         


      

      
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    (ii)          The
term “Taxes”
means all taxes, however denominated, including, without limitation, any
interest, penalties or other additions that may become payable in respect
thereof, imposed by any Governmental Authority, which taxes shall include,
without limiting the generality of the foregoing, all income or profits taxes
(including, without limitation, federal income taxes and state income taxes),
alternative or add-on minimum taxes, estimated taxes, payroll and employee
withholding taxes, back-up withholding and other withholding taxes, unemployment
insurance, social security taxes, sales and use taxes, value added taxes, ad
valorem taxes, excise taxes, franchise taxes, gross receipts taxes, business
license taxes, occupation taxes, real and personal property taxes, stamp taxes,
environmental taxes, transfer taxes, workers’ compensation and Pension Benefit
Guaranty Corporation premiums, self dealing or prohibited transactions taxes,
customs, duties, capital stock taxes, and other obligations of the same or of a
similar nature to any of the foregoing, which the Group is required to pay,
withhold or collect, whether disputed or not.

     

    (iii)         The
term “Returns”
means all reports, estimates, declarations of estimated tax, claims for refund,
information statements and returns required to be prepared or filed in
connection with, any Taxes, employee agreement or Plan, including any schedule
or attachment thereto, and including any amendment thereof.

     

    (b)           All
Returns required to be filed by or on behalf of any members of the Group prior
to the Closing Date have been, or will be, duly filed on a timely basis, subject
to any applicable extensions. Such Returns are true, correct and complete. All
Taxes owed by any members of the Group (whether or not shown on any Return) have
been paid in full on a timely basis, and no other Taxes are owing or payable by
the Group with respect to items or periods covered by such Returns or with
respect to any taxable period ending on or before the date of this
representation and warranty for which a Return was due prior to such date. No
claim has ever been made by any Governmental Authority for any jurisdiction in
which any member of the Group does not file Returns that it is or may be subject
to taxation by that jurisdiction. No security interests, liens, encumbrances,
attachments or similar interests exist on or with respect to any of the assets
of the Group that arose in connection with any failure or alleged failure to pay
any Taxes. Each member of the Group has withheld and paid all Taxes required to
have been withheld and paid in connection with amounts paid or owing to any and
all officers, directors, employees and agents (including, without limitation,
any independent contractor, foreign person or other third person) in compliance
with all tax withholding provisions of applicable federal, state, local and
foreign law (including, without limitation, income, social security, employment
tax withholding, and withholding under Sections 1441 through 1446 of the Code).
The Bank has timely complied with all requirements under Applicable Laws
relating to information, reporting and withholding and other similar matters for
customer and other accounts (including back-up withholding and furnishing of
Forms 1099 and all similar reports).


    
      
         


      

      
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    (c)           The
amount of the Group’s liability for unpaid Taxes for all periods ending on or
before the last day of the month before the Closing Date (including accruals for
any exposure item) shall not, in the aggregate, exceed the amount of the
liability accruals for Taxes, as such accruals are reflected on the Group’s most
recent consolidated balance sheet contained in the Company Reports. All such
accruals are, or will be, recorded in accordance with GAAP.

     

    (d)           The
Company has made and caused the Bank or any other member of the Group to make
available to the Investor true, correct and complete copies of all federal and
state income tax Returns for all periods that are open for federal and state tax
purposes and all other Returns, including, without limitation, income tax audit
reports, statements of income or gross receipts tax, franchise tax, sales tax
and transfer tax, deficiencies, and closing or other agreements relating to
income or gross receipts tax, franchise tax, sales tax and transfer tax received
by the Group or on behalf of the Group, as well as draft Returns for the Group
for all Taxes for all periods ending on or before the Closing Date.

     

    (e)           (i)
No deficiencies have been asserted with respect to Taxes of the Group that
remain unpaid; (ii) the Group is not a party to any action or proceeding for
assessment or collection of Taxes, and no such action or proceeding has been
asserted or threatened against the Group or any of its assets; and (iii) no
waiver or extension of any statute of limitations is in effect with respect to
any Taxes or Returns of the Group. The Returns of the Group for all tax years
for which the statute of limitations has not expired have never been audited by
a Governmental Authority, nor is any such audit in process, pending or, to the
knowledge of the Company, threatened. Neither the Company nor any director or
officer (or employee responsible for Tax matters) of any other member of the
Group is aware of any facts or circumstances that, if known by any Governmental
Authority would be reasonably likely to cause the Governmental Authority to
assess any additional Taxes for any period for which Returns have been
filed.

     

    (f)
           No member of
the Group has (i) been or shall be required to include any adjustment in taxable
income for any Tax period (or portion thereof) ending after the Closing in
accordance with Section 481 of the Code or any comparable provision under state
or foreign Tax laws as a result of transactions or events occurring prior to the
Closing; (ii) filed any disclosure under Section 6662 of the Code or comparable
provisions of state, local or foreign Law to prevent the imposition of penalties
with respect to any Tax reporting position taken on any Tax Return; (iii)
engaged in a “reportable transaction,” as defined in Treasury Regulation Section
1.6011-4(b); (iv) ever been a member of a consolidated, combined, unitary or
aggregate group of which the Company or the Bank was not the ultimate parent
company; (v) been the “distributing corporation” or the “controlled corporation”
(in each case, within the meaning of Section 355(a)(1) of the Code) with respect
to a transaction described in Section 355 of the Code (A) within the two-year
period ending as of the date of this Agreement, or (B) in a distribution that
would otherwise constitute part of a “plan” or “series of related transactions”
(within the meaning of Section 355(e) of the Code); (vi) incurred any actual or
potential liability under Treasury Regulations Section 1.1502-6 (or any
comparable or similar provision of federal, state, local or foreign Law), as a
transferee or successor, as a result of any contractual obligation, or otherwise
for any Taxes of any Person other than the Company or the Bank; or (vii) ever
been a “United States real property holding corporation” within the meaning of
Section 897 of the Code.


    
      
         


      

      
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    (g)           No
member of the Group shall be required to include any item of income in, or
exclude any item of deduction from, taxable income for any period (or any
portion thereof) ending after the Closing Date as a result of any: (i)
installment sale or other open transaction disposition made on or prior to the
Closing Date; (ii) prepaid amount received on or prior to the Closing Date;
(iii) a closing agreement described in Section 7121 of the Code or any
corresponding provision of state of foreign Tax Law executed on or prior to the
Closing Date; or (iv) any change in method of accounting for a taxable
period or portion thereof ending on or before the Closing Date.

     

    (h)           There
has been no “ownership change,” as defined in Section 382 of the Code, with
respect to any member of the Group.

     

    Section
2.11          Transactions with
Affiliates. Except as disclosed in the Company Reports, since December
31, 2007:

     

    (a)           no
current officer, director or employee of the Company or the Subsidiaries, any of
their respective family members, any other corporation or organization of which
any of the foregoing persons is an officer, director or beneficial owner of 10%
or more of any class of its equity securities, or any trust or other estate in
which any of the foregoing persons has a substantial beneficial interest or as
to which such person serves as a trustee or in a similar capacity, nor any
current or former affiliate of the Company or the Subsidiaries, has any material
interest in any property, real or personal, tangible or intangible, used in or
pertaining to the business of the Bank or in any transaction or series of
similar transactions to which the Bank is a party;

     

    (b)           no
such person, if any, is indebted to the Company or the Subsidiaries, except for
normal business expense advances and except for loans and extension of credit
(i) made in the ordinary course of the Bank's business, (ii) on substantially
the same terms, including interest rates and collateral, as those prevailing at
the time for comparable loans with unrelated persons, (iii) that did not involve
more than the normal risk of collectability or present other unfavorable
features, and (iv) which are not disclosed as nonaccrual, past due, restructured
or potential problems in the Company's filings with any Governmental
Authority.

     

    (c)           neither
the Company nor the Subsidiaries are indebted to any such person except for
amounts due under normal salary or reimbursement or ordinary business
expenses;

     

    (d)           no
such person is a party to a material agreement as described in Section 2.14 with the
Company or the Subsidiaries other than agreements related to employment or
service as a director;

     

    (e)           no
such person has any other relationship or has engaged or engages in any other
transaction or series of similar transactions that would be required to be
disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC;
and

     

    (f)
           all of the
transactions referred to in this Section 2.11 are
transactions entered into in the ordinary course of business on an arm’s-length
business pursuant to normal business terms and conditions.


    
      
         


      

      
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    Section
2.12          Loans. (a) With
respect to each outstanding loan, lease or other extension of credit or
commitments to extend credit by the Bank (a)(i) the Bank has duly performed in
all material respects all of its obligations thereunder to the extent that such
obligations to perform have accrued; (ii) all documents and agreements necessary
for the Bank to enforce such loan, lease or other extension of credit are in
existence and in the Bank’s possession; (iii) no claims, counterclaims, set-off
rights or other rights have been asserted against the Bank, nor, to the
knowledge of the Company, do the grounds for any such claim, counterclaim,
set-off rights or other rights exist, with respect to any such loans, leases or
other extensions of credit which could impair the collectability thereof; and
(iv) each such loan, lease and extension of credit has been, in all material
respects, originated and serviced in accordance with the Bank’s then-applicable
underwriting guidelines and policies, the terms of the relevant credit documents
and agreements and Applicable Law, including Federal Reserve Regulations H, O
and W, and applicable limits on loans to one borrower under Applicable
Law.

     

    (b)           There
are no loans, leases, other extensions of credit or commitments to extend credit
of the Bank that have been or should have been classified by the Bank or its
regulatory examiners, auditors or other credit examination personnel as “watch,”
“other assets (or loans) especially mentioned,” “substandard,” “doubtful,”
“classified,” “criticized,” “loss” or any comparable classification, which have
not been so classified.

     

    (c)           Except
as disclosed in the Company Reports, there are no loans due to the Bank as to
which any payment of principal, interest or any other amount is 90 days or more
past due.

     

    (d)           The
allowances for possible loan and lease losses shown on the financial statements
included in any Company Report were, on the respective filing dates, adequate in
all respects under the requirements of GAAP and applicable regulatory accounting
practices, in each case consistently applied, to provide for possible loan and
lease losses as of such filing date, and were in accordance with the safety and
soundness standards administered by, and the practices, procedures, requests and
requirements of, the applicable Regulatory Authority.

     

    Section
2.13          Other Activities of the
Company and the Bank. Except as described in Section 2.13 of the
Disclosure Schedule, neither the Company nor the Bank, nor any officer, director
or employee of the Company or the Bank acting in an agency capacity on behalf of
the Company or Bank, is authorized to engage in or conduct, and does not engage
in or conduct, any securities sales, underwriting, brokerage, management or
dealing activities, whether as principal or agent, either directly or under
contractual or other arrangements with third parties. The Bank does not engage
in any trust or custodial activities.

     

    Section
2.14          Material Agreements; No
Defaults. There are no material breaches, violations, defaults (or events
that have occurred that with notice, lapse of time or the happening or
occurrence of any other event would constitute a default) or allegations or
assertions of any of the foregoing by the Company or the Subsidiaries, as the
case may be, or, to the knowledge of the Company, any other party, with respect
to any contract or agreement to which the Company or any of its Subsidiaries is
a party that is a “material contract” within the meaning of Item 601(b)(10) of
Regulation S-K and that is to be performed in whole or in part after the date of
this Agreement, including the Merger Agreement, and each such contract or
agreement has been filed as an exhibit to the Company’s SEC filings pursuant to
Item 601 of Regulation S-K (other than the Merger Agreement).


    
      
         


      

      
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    Section
2.15          Company Benefit
Plans. (a) For purposes of this Agreement, “Benefit Plan” means
all employee welfare benefit plans within the meaning of Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), all employee
pension benefit plans within the meaning of Section 3(2) of ERISA, including,
but not limited to, plans that provide retirement income or result in a deferral
of income by employees for periods extending to termination of employment or
beyond, and plans that provide medical, surgical, or hospital care benefits or
benefits in the event of sickness, accident, disability, death or unemployment,
and all other employee benefit agreements or arrangements, including, but not
limited to, all bonus, incentive, deferred compensation, vacation, stock
purchase, stock option, stock award, severance, employment, change of control,
golden-parachute, consulting, dependent care, cafeteria, employee assistance,
scholarship, or fringe benefit or similar plans, programs, agreements or
policies, in each case sponsored or maintained by the Company or each person
that, together with the Company, would be treated as a single employer under
Section 414 of the Code (such person, an “ERISA Affiliate”) or
to which the Company or an ERISA Affiliate contributes on behalf of its
employees, in all cases whether written, unwritten or otherwise, funded or
unfunded, and whether or not ERISA is applicable to such plan, program,
agreement or policy.

     

    (b)           With
respect to each Benefit Plan, the Company and each ERISA Affiliate, as well as
each Benefit Plan, have complied, and are now in compliance with all provisions
of ERISA, the Code and all laws and regulations applicable to such Benefit Plan,
including the Pension Protection Act of 2006. Each Benefit Plan has been
administered in accordance with its terms and all laws and regulations
applicable to such Benefit Plan, including ERISA and the Code. Each Benefit Plan
intended to be qualified under Section 401(a) of the Code has obtained a
favorable determination or opinion letter as to its qualified status under the
Code, or application for such letter will be timely filed, or if the Benefit
Plan intended to be qualified under Section 401(a) of the Code is
maintained pursuant to a prototype or “volume submitter” plan document, the
sponsor of the prototype or volume submitter document has obtained from the
National Office of the Internal Revenue Service an opinion or notification
letter stating that the form of the prototype or volume submitter document is
acceptable for the establishment of a qualified retirement plan under Section
401(a) of the Code.

     

    (c)           Except
for liabilities fully reserved for or identified in the financial statements
contained in the Company Reports, (i) no claim has been made, or to the
knowledge of the Company threatened, against the Company or any ERISA Affiliate
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; and (ii) no
event has occurred, and there exists no condition or set of circumstances, which
could reasonably be expected to subject the Company or any Subsidiary to any
liability under the terms of, or with respect to, any Benefit Plan or under
ERISA, the Code or any other Applicable Law.

     

    (d)           Neither
the Company nor any ERISA Affiliate has ever maintained, established, sponsored,
participated in, or contributed to, any (i) Benefit Plan that is or was
subject to Title IV of ERISA or Section 412 of the Code,
(ii) ”multiemployer plan” (as defined in Section 4001(a)(3) of
ERISA), (iii) ”multiple employer plan” within the meaning of
Section 4001(a)(3) of ERISA or subject to Section 413(c) of
the Code, or (iv) ”welfare benefit fund” within the meaning of
Section 419 of the Code.


    
      
         


      

      
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    (e)           Neither
the execution and delivery of this Agreement, nor the consummation of the
Private Placement (including the Transaction) or the Mergers will
(i) result in any payment (including severance, unemployment compensation,
“excess parachute payment” (within the meaning of Section 280G of the
Code), forgiveness of indebtedness or otherwise) becoming due to any current or
former employee, officer or director of the Company or any Subsidiary from the
Company or any ERISA Affiliate under any Benefit Plan or otherwise;
(ii) increase any benefits otherwise payable under any Benefit Plan;
(iii) result in any acceleration of the time of payment or vesting of any
such benefits; (iv) require the funding or increase in the funding of any
such benefits; or (v) result in any limitation on the right of the Company
or any ERISA Affiliate to amend, merge, terminate or receive a reversion of
assets from any Benefit Plan or related trust except as shown in Schedule 2.15(e) with
respect to payments to ABI or Oceanside Bank directors, officers or employees as
a result of the Mergers; and

     

    (f)           Neither
the Company nor any ERISA Affiliate has taken, or permitted to be taken, any
action that required, and no circumstances exist that will require the funding,
or increase in the funding, of any benefits or resulted, or will result, in any
limitation on the right of the Company or any ERISA Affiliate to amend, merge,
terminate or receive a reversion of assets from any Benefit Plan or related
trust.

     

    Section
2.16         Environmental
Matters. (a) For purposes of this Section 2.16,
(i) ”Environmental Law”
means any federal, state, local or foreign statute, law, regulation, order,
decree, permit, authorization, opinion, common law or agency requirement
relating to: (A) the protection, investigation or restoration of the
environment, health, safety, or natural resources, (B) the handling, use,
presence, disposal, release or threatened release of any Hazardous Substance or
(C) noise, odor, indoor air, employee exposure, wetlands, pollution,
contamination or any injury or threat of injury to persons or property relating
to any Hazardous Substance; and (ii) “Hazardous Substance”
means any substance that is: (A) listed, classified or regulated pursuant
to any Environmental Law; (B) any petroleum product or by-product,
asbestos-containing material, lead-containing paint or plumbing, polychlorinated
biphenyls, radioactive material or radon; and (C) any other substance which
may be the subject of regulatory action by any Government Entity in connection
with any Environmental Law.

     

    (b)           Except
as, individually or in the aggregate, has not had or would not be reasonably
expected to have a Material Adverse Effect, the Company and the Subsidiaries are
in compliance with all applicable Environmental Laws and, to the knowledge of
the Company, (i) no real property currently or formerly owned or operated
by the Company or any of its subsidiaries is or has been contaminated with any
Hazardous Substance at any time; (ii) neither the Company nor any of its
subsidiaries could be deemed the owner or operator under any Environmental Law
of any property which is or has been contaminated with any Hazardous Substance;
and (iii) no Hazardous Substance has been transported from any of the
properties owned or operated by the Company or one of the Subsidiaries, other
than as permitted under applicable Environmental Law. Since January 1,
2007, neither the Company nor any of the Subsidiaries has received any written
notice from any Governmental Authority or any third party indicating that the
Company or any of the Subsidiaries is in violation of any Environmental Law,
other than with respect to any matter that has been resolved, and such
violation, if any, would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect. The Company and the Subsidiaries are
not subject to any court order, administrative order or decree or any indemnity
or other agreement arising under or related to any Environmental
Law.


    
      
         


      

      
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    Section
2.17          Labor Matters. No
employees of the Company or any of the Subsidiaries are 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 of the Subsidiaries 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 threatened against or involving the Company or any of the
Subsidiaries. The Company is in material compliance with all U.S. federal,
state, local and foreign laws and regulations relating to employment and
employment practices, terms and conditions of employment and wages and
hours.

     

    Section
2.18          Insurance. The
Company and each of the Subsidiaries are presently insured, and since
December 31, 2007 have been insured, for reasonable amounts with
financially sound and reputable insurance companies against such risks as
companies engaged in a similar business would, in accordance with good business
practice, customarily be insured. As of the date hereof, all such insurance
policies are in full force and effect and no written notice of cancellation has
been received. There is no existing material default by any insured thereunder.
The Company maintains directors’ and officers’ liability insurance (“D&O Insurance”)
in the amount of $5 million and has provided the Investor a copy of its policy
of D&O Insurance as part of Section 2.18 of its
Disclosure Schedule.

     

    Section
2.19          No Integration.
Neither the Company nor the Subsidiaries, nor any of their respective affiliates
, nor any person acting on their behalf, has issued any securities of the
Company that would be integrated with the sale of the Purchased Shares for
purposes of the Securities Act, nor will the Company or the Subsidiaries or
affiliates take any action or steps (and neither have they taken any action or
steps) that would require registration of any of the Purchased Shares under the
Securities Act or cause the offering of the Purchased Shares to be integrated
with other offerings. Assuming the accuracy of the representations and
warranties of the Investor, the offer and sale of the Purchased Shares by the
Company to the Investor pursuant to this Agreement will be exempt from the
registration requirements of the Securities Act.

     

    Section
2.20          No Change of Control.
The issuance of the Purchased Shares to the Investors as contemplated by this
Agreement will not trigger any payment, termination or rights under any “change
of control” provision in any agreements to which the Company, the Bank or any of
the Subsidiaries is a party, including any employment, “change in control,”
severance or other compensatory agreements and any Benefit Plan, which results
in payments to the counterparty, the acceleration or vesting of benefits or
payments (including debt repayments). The Company has provided true and complete
copies of acknowledgments executed by each of Gilbert Pomar, III, Scott M. Hall
and Valerie Kendall to the effect that the Transaction and the Merger (whether
alone or together) do not constitute a change in control of the Company or the
Bank under any agreement to which he or she is a party or Benefit Plan to which
he or she is a participant.


    
      
         


      

      
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    Section
2.21          Properties. (a)
Except in any such case as is not, individually or in the aggregate, reasonably
likely to have a Material Adverse Effect, with respect to the real, personal and
mixed property owned by the Company or the Subsidiaries, the Company or one of
the Subsidiaries has valid title to such real property, free and clear of any
liens, and there are no outstanding options to purchase real
property.

     

    (b)           The
Company has made available to the Investor copies of all material leases,
subleases and other agreements under which the Company or any of the
Subsidiaries uses or occupies or has the right to use or occupy, now or in the
future, any real, personal or mixed property (the “Leases”) (including
all modifications, amendments, supplements, waivers and side letters thereto).
Except as has not had and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, (i) each Lease is valid,
binding and in full force and effect; and (ii) to the knowledge of the
Company, no termination event or condition or uncured default of a material
nature on the part of the Company or, if applicable, any of the Subsidiaries
exists under any Lease. The Company and each of the Subsidiaries has a good and
valid leasehold interest in each parcel of real property leased by it free and
clear of all Liens, except for Liens which do not interfere with the use or
materially affect the value of the property subject to the Lease. Neither the
Company nor any of the Subsidiaries has received written notice of any pending,
and to the knowledge of the Company there is no threatened, condemnation or
similar proceeding with respect to any property leased pursuant to any of the
real property leases.

     

    (c)           The
Company and the Subsidiaries have good and valid title to their material owned
assets and properties, or in the case of assets and properties they lease,
license, or have other rights in, good and valid rights by lease, license or
other agreement to use, all material assets and properties (in each case,
tangible and intangible) necessary to permit the Company and the Subsidiaries to
conduct their respective businesses as currently conducted, except, in all
cases, as would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect.

     

    Section
2.22          Computer and Technology
Security. The Company and the Subsidiaries have taken all
reasonable steps to safeguard the information technology systems utilized in the
operation of the business of the Company and the Subsidiaries consistent with
the guidance of its Regulatory Authorities, including the implementation of
procedures to ensure that such information technology systems are free from any
disabling codes or instructions, timer, copy protection device, clock, counter
or other limiting design or routing and any “back door,” “time bomb,” “Trojan
horse,” “worm,” “drop dead device,” “virus,” or other software routines or
hardware components that in each case permit unauthorized access or the
unauthorized disablement or unauthorized erasure of data or other software by a
third party, and to date there have been no successful unauthorized intrusions
or breaches of the security of the information technology
systems.


    
      
         


      

      
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    Section
2.23          Data Privacy. The
Company and the Subsidiaries’ respective businesses have complied with and, as
presently conducted, are in compliance with, all Applicable Laws applicable to
data privacy, data security, or personal information, as well as industry
standards applicable to the Company and the Subsidiaries. The Company and the
Subsidiaries have complied with, and are presently in compliance with, its and
their respective policies applicable to data privacy, data security, or personal
information. Neither the Company nor any of the Subsidiaries has experienced any
incident in which personal information or other sensitive data was or may have
been stolen or improperly accessed, and neither the Company nor any of the
Subsidiaries is aware of any facts suggesting the likelihood of the foregoing,
including without limitation, any breach of security or receipt of any notices
or complaints from any person regarding personal information or other
data.

     

    Section
2.24          No Restrictive
Covenants. There are no contracts or agreements to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary or any of
their respective properties, assets, directors or officers are subject or bound
which limits or purports to limit the freedom of the Company or any Subsidiary
or any of their respective directors or officers affiliates to compete in any
material line of business or any geographic area to which the Company or any
Subsidiary is a party or subject.

     

    Section
2.25          Litigation. Other
than matters in the ordinary course of its banking business and which have not
had and which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect, (a) No civil, criminal or
administrative litigation, claim, action, suit, hearing, arbitration,
investigation, inquiry or other proceeding before any Governmental Authority or
arbitrator is pending or, to the actual knowledge of any of the executive
officers of the Company, threatened against the Company or any Subsidiary;
(b) except for the Enforcement Actions, none of the Company nor any
Subsidiaries are a party to, and none of the Company nor the Subsidiaries, nor
any of their respective assets or businesses, are subject to or the subject of,
any written agreement, stipulation, conditional approval, memorandum of
understanding, notice of determination, judgment, supervisory agreement, order,
written directive, consent decree or other agreement with any Governmental
Authority; and (c) there are no facts or circumstances that could result in
any claims against, or obligations or liabilities of, the Company or any
Subsidiary, except with respect to (a), (b) and (c) for those that are
not, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect. 

     

    Section
2.26          Merger Agreement
Representations and Warranties. Each of the representations and
warranties of the Company, the Bank, Oceanside Bank and of ABI contained in the
Merger Agreement and Bank Merger Agreement are hereby incorporated by reference
and made to the Investors by the Company (as defined in the Merger Agreement)
about the Company and the Subsidiaries upon and following the effective times of
the Merger and the Bank Merger.

     

    Section
2.27          No Brokers. Neither
the Company nor any Subsidiary nor any of their respective officers, directors,
employees, agents or representatives has employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finders or similar
fees in connection with the Private Placement (including the Transaction) or the
Mergers except as disclosed in Section 2.27 of the
Disclosure Schedule.


    
      
         


      

      
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    Section
2.28          Voting of Shares by
Directors and Executive Officers. The Company’s directors and officers
have agreed to vote all shares of Company Common Stock which they beneficially
own in favor of approving the Private Placement (including the Transaction) and
the Mergers and all matters requiring a vote of the Company’s shareholders,
including those set forth in Section 2.04(b)
hereof (the “Insider
Shareholder Votes”). The Company agrees that it shall use its reasonable
best efforts to enforce such agreements consistent with applicable
Law.

     

    Section
2.29          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 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 its Subsidiaries, enforceable in accordance with its terms. Neither the
Company nor any of its 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.

     

    Section
2.30          Adequate
Capitalization. As of March 31, 2010, the Bank met or exceeded the
standards necessary to be considered “adequately capitalized” under FDIC
Regulation § 325.103.

     

    Section
2.31          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.

     

    Section
2.32         Price of Common
Stock. The Company has not taken, and will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or that might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Purchased Shares.

     

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

     

    Section
2.34          Reservation of Purchased
Shares. The Company has reserved, and will continue to reserve, free of
any preemptive or similar rights of shareholders of the Company, a number of
unissued shares of Common Stock, sufficient to issue and deliver the Purchased
Shares at Closing.

     

    Section
2.35          Substantially Similar
Agreement. The Company has no other agreements with any other Investor to
purchase shares of Common Stock on terms that are not substantially similar to
the terms of this Agreement. The Company has no other agreements with CapGen to
purchase shares of Common Stock on terms that are different than as set forth in
this Agreement.

     

    Section
2.36          Disclosure. The
Company confirms that neither it nor any of its officers or directors nor any
other person acting on its or their behalf has provided, and it has not
authorized any agent or representative to provide, the Investor or its
respective agents or counsel with any information that it believes constitutes
or could reasonably be expected to constitute material, non-public information
except insofar as the existence, provisions and terms of the proposed
transactions hereunder, including the Private Placement and the Mergers, may
constitute such information, all of which will be disclosed by the Company as
contemplated by Section 6.13. The
Company understands and confirms that the Investor will rely on the foregoing
representations in effecting transactions in securities of the Company. No event
or circumstance has occurred or information exists with respect to the Company
or any of its Subsidiaries or its or their business, properties, operations or
financial conditions, which, under applicable law, rule or regulation, requires
public disclosure or announcement by the Company but which has not been so
publicly announced or disclosed, except for the announcement of the Private
Placement and the Mergers pursuant to Section
6.13.


    
      
         


      

      
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    ARTICLE
3

    REPRESENTATIONS
AND WARRANTIES OF THE INVESTORS

     

    Each
Investor, for itself and for no other Investor, represents and warrants to the
Company, severally and not jointly, as follows:

     

    Section
3.01          Organization. The
Investor is duly organized and validly existing under the laws of the
jurisdiction of its organization.

     

    Section
3.02          Bank Holding Company
Status. 

     

    (a)           Prior
to Closing, CapGen will have obtained all necessary approvals to own the
Purchased Shares and to thereby be a bank holding company controlling the
Company and the Bank under the BHCA.

     

    (b)           No
Investor has or is acting in concert with any other Person. Except for CapGen,
assuming the accuracy of the representations and warranties of the Company, no
Investor, either acting alone or together with any other Person will, directly
or indirectly, own, control or have the power to vote, after giving effect to
its purchase of Purchased Shares, in excess of 9.9% of the outstanding shares of
the Company’s voting stock of any class or series. Without limiting the
foregoing, the Investor represents and warrants that it does not and will not as
a result of its purchase or holding of the Purchased Shares or any other
securities of the Company have “control” of the Company or the Bank, and has no
present intention of acquiring “control” of the Company or the Bank for purposes
of the BHCA or the Change in Bank Control Act.

     

    Section
3.03         Authorization. This
Agreement has been duly authorized, executed and delivered by the Investor and
constitutes the valid and binding agreement of the Investor enforceable against
it in accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors’ rights generally or by general equitable
principles.


    
      
         


      

      
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    Section
3.04          Accredited Investor,
etc. 

     

    (a)           The
Investor acknowledges that the Purchased Shares have not been registered under
the Securities Act or under any state securities laws. The Investor (i) is
acquiring the Purchased Shares pursuant to an exemption from registration under
the Securities Act solely for investment with no present intention to distribute
any of the Purchased Shares to any person, (ii) will not sell or otherwise
dispose of any of the Purchased Shares, except in compliance with the
registration requirements or exemption provisions of the Securities Act and any
other applicable securities laws, (iii) is an “accredited investor” as defined
in SEC Rule 501 and/or a “qualified institutional buyer” under SEC Rule 144A,
and (iv) 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 Purchased Shares and of making an informed investment decision. The
Investor 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.

     

    (b)           The
Investor has, either alone or through its representatives:

     

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

     

    (ii)          had
a reasonable opportunity to ask such questions as it has deemed necessary of,
and to receive answers from, the officers and 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 Purchased Shares, the Transaction and
any additional relevant information that the Company possesses, and any such
questions have been answered to its satisfaction;

     

    (iii)         had
the opportunity to review and evaluate the following, among other things, in
connection with its investment decision with respect to the Purchased Shares:
(A) all publicly available records and filings concerning the Company and
the Bank, 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) certain investor presentation materials (as supplemented
from time to time) (collectively, the “Offering Materials”)
that summarizes this offering of Purchased Shares and the Transaction; and (C)
this Agreement, the Registration Rights Agreement and all other exhibits,
schedules and appendices attached hereto and thereto (collectively, the “Private Placement
Documents”); and

     

    (iv)         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 any other Investor. Neither such
inquiries nor any other due diligence investigations conducted by such the
Investor or its advisors or representatives, if any, shall modify, amend or
affect the Investor’s right to rely on the Company’s representations and
warranties contained herein. Each Investor understands that (i) its
investment in the Purchased Shares involves a high degree of risk and it is able
to afford a complete loss of such investment, (ii) no representation is being
made as to the business or prospects of the Company or the Bank after completion
of the Transaction and the Mergers or the future value of the Purchased Shares,
and (iii) no representation is being made as to any projections or estimates
delivered to or made available to the Investors (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. Each
Investor, either alone or together with its representatives, if any, has the
knowledge, sophistication and experience in financial and business matters as to
fully understand and be capable of evaluating the merits and risks of an
investment in the Purchased Shares.


    
      
         


      

      
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    (c)           The
Investor acknowledges that the information in the Private Placement Documents is
as of the date thereof and may not contain all of the terms and conditions of
the offering and sale of the Purchased Shares and the Transaction, and
understands and acknowledges that it is the Investor’s responsibility to conduct
its own independent investigation and evaluation of the Company and the
Subsidiaries, the Bank and the Transaction, including (i) the business prospects
and future operations of the Company after completion of the Transaction, if
applicable, and (ii) the management team that will operate and manage the
Company following the completion of the Transaction. The Investor is not relying
upon, and has not relied upon, any advice, statement, representation or warranty
made by any person except for the express statements, representations and
warranties of the Company made or contained in this Agreement and the other
Private Placement Documents. Furthermore, the Investor acknowledges that:
(A) the Investor has made, and has relied upon, its own independent
examination in purchasing the Purchased Shares, including of the Company and the
Subsidiaries, the Bank, the Transaction and the management team of the Company
that will continue to operate and manage the Company after the completion of the
Transaction; (B) nothing in this Agreement or any other materials presented by
or on behalf of the Company to the Investor in connection with the purchase of
the Purchased Shares constitutes legal, tax or investment advice and the
Investor 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 Purchased Shares; and (C) the Investor received or had access to
all of the information the Investor deemed necessary in order to make its
investment decision in the Purchased Shares.

     

    (d)           The
Investor has read and understands the risk factors outlining certain, but not
all, risks related to the Company, the Bank, and an investment in the Company
set forth in the Company’s Form 10-K for the year ended December 31,
2009.

     

    (e)           The
Investor understands that the Purchased Shares are being offered and sold to it
in reliance on specific exemptions from the registration requirements of U.S.
federal and state securities laws and regulations and that the Company is
relying in part upon the truth and accuracy of, and the Investor’s compliance
with, the representations, warranties, agreements, acknowledgments and
understandings of the Investor set forth herein in order to determine the
availability of such exemptions and the eligibility of the Investor to acquire
the Purchased Shares.

     

    (f)
           The Investor
is not purchasing the Purchased Shares as a result of any advertisement,
article, notice or other communication regarding the Purchased Shares published
in any newspaper, magazine or similar media or broadcast over television or
radio or presented at any seminar or any other general
advertisement.


    
      
         


      

      
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    (g)           The
Investor understands that (i) its investment in the Purchased Shares 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 Transaction or the
future value of the Purchased Shares, and (iii) no representation is being made
as to any projections or estimates delivered to or made available to the
Investor (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. The Investor, either alone or together with its
representatives, if any, has the knowledge, sophistication and experience in
financial and business matters as to fully understand and be capable of
evaluating the merits and risks of an investment in the Purchased Shares and has
the ability to bear the economic risks of an investment in the Purchased Shares
and, at the present time, is able to afford a complete loss of such
investment.

     

    (h)           The
Investor understands and agrees that the Purchased Shares are not deposits and
are not insured by the FDIC or any other Governmental Authority.

     

    Section
3.05         Regulatory Approvals.
The Investor has not been advised by any applicable Regulatory Authority, and
has no reasonable basis to believe, that any regulatory approvals required to
consummate the Transaction will not be obtained. 

     

    Section
3.06          Sufficient Funds. The
Investor at the Closing will have all funds necessary to pay and deliver the
Purchase Price.

     

    ARTICLE
4

    CONDITIONS
TO THE OBLIGATIONS

    OF
THE INVESTORS

     

    The
obligations of each Investor to purchase and pay for the Purchased Shares and to
perform its obligations under this Agreement are subject to the satisfaction or
waiver (other than a waiver of any condition set forth in Section 4.06) by the
Investor, on or before such Closing Date, of the following
conditions:

     

    Section
4.01          Representations and
Warranties to be True and Correct. The representations and warranties
contained in Article
2 were true and correct in all material respects as of the date of this
Agreement and are true and correct at and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
the Closing Date (except to the extent such representations and warranties are
limited expressly to an earlier date, in which case such representations and
warranties were accurate on and as of such date), and a duly authorized officer
of the Company has certified such compliance to the Investor in writing on its
behalf.

     

    Section
4.02          Performance. The
Company has performed and complied in all material respects with each of its
obligations contained herein required to be performed or complied with by it
prior to or at the Closing Date, and a duly authorized officer of the Company
has certified such compliance to the Investor in writing on its
behalf.

     

    Section
4.03          Audited Statements.
The Company shall have provided the Investor with consolidated financial
statements prepared in accordance with GAAP and the Exchange Act audited by
Crowe Horwath LLP as of and for the year ended December 31, 2009 (the “2009 Audited
Statements”).


    
      
         


      

      
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    Section
4.04          No Material Adverse
Change. Since December 31, 2009, there has not been any Material Adverse
Effect.

     

    Section
4.05         Corporate Approvals;
Shareholder Approval. All corporate approvals to be taken by the Company
in connection with the Merger and the Private Placement (including the
Transaction) shall have been obtained and remain in full force and effect. The
Corporation’s shareholders shall have approved the Company’s Amended and
Restated Articles of Incorporation in the form of Schedule II
hereto, and such Amended and Restated Articles of Incorporation shall have been
filed with the Florida Secretary of State and be in full force and effect. The
Requisite Shareholder Vote shall have been obtained with respect to approval of
the Private Placement (including the Transaction). 

     

    Section
4.06          Closing of Mergers.
Both of the Mergers shall have been completed and each Merger Effective Time
shall have occurred prior to the Closing.

     

    Section
4.07          Regulatory Approvals.


     

    (a)           The
Investors have received a true and complete copy of the Merger Agreement. Solely
as a result of the consummation of the Private Placement and the Merger, other
than CapGen, the purchase of the Purchased Shares shall not cause any Investor
to be deemed to own, control or have the power to vote securities which would
represent more than 9.9% of the voting securities of the Company outstanding at
such time.

     

    (b)           CapGen
has received all regulatory approvals necessary to complete the Transaction,
including (A) approval of the Investor Regulatory Application and (B) the prior
consent, approval, authorization, clearance, exemption, waiver or similar act
from the applicable Regulatory Authorities and the receipt of a letter or other
advice acceptable to the Investors from a nationally recognized public
accounting firm to the effect that the Investors’ investment in the Company
would not be deemed or construed to be an ownership of more than 49.9% for GAAP
or regulatory accounting or capital purposes of the applicable Regulatory
Authorities, and will not require (i) consolidation of any Investor or its
controlling persons with the Company and the Bank, (ii) the marking to market of
the Company’s assets or liabilities to a fair market basis as of or as a result
of the Transaction, and (iii) that the Investor and the Company will be
“well-capitalized” for all purposes of the applicable Regulatory Authorities
immediately following the Transaction; (C) all notice and waiting periods
required by law to pass have passed without adverse action; and (D) no
orders or actions of any Governmental Authority enjoining, restraining,
prohibiting or invalidating the Transaction have been issued and remain in
effect or are unstayed.

     

    (c)           Except
as described in Section 2.07(a), no
Regulatory Authority has (i) asserted a violation or noncompliance of any
Enforcement Action; (ii) revoked or restricted any permits held by the Company
or any of the Subsidiaries; or (iii) issued, or required the Company or any of
the Subsidiaries to consent to the issuance or adoption of, a cease and desist
order, formal agreement, directive, commitment or memorandum of understanding,
or any board resolution or similar undertaking, that, in the reasonable
estimation of the Investor, restricts or materially affects the conduct of the
business or future prospects of the Company or such Subsidiary.


    
      
         


      

      
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    Section
4.08          Registration Rights
Agreement. The Registration Rights Agreement has been executed and
delivered simultaneously with this Agreement, in substantially the form attached
as Schedule
III, and will be effective and in full force and effect upon the
Closing.

     

    Section
4.09          Sales of Shares. At
the Closing, the Company shall concurrently sell to all Investors, including
CapGen, Common Stock in the Private Placement in the aggregate amount of $30
million, in each case, at a purchase price per share of $10.00, in accordance
with the terms of this Agreement.

     

    Section
4.10          Legal Opinion. The
Investors shall have received an opinion of counsel, dated as of the Closing
Date and addressed to the Investors, in such form and substance as are customary
for transactions of this type.

     

    Section
4.11          No Suspensions of Trading in
Common Stock; Listing. The Common Stock, including the Purchased Shares,
(i) shall be designated for listing and quotation on the Nasdaq Stock Market and
(ii) shall not have been suspended, as of the Closing Date, by the SEC or the
Nasdaq Stock Market from trading on the Nasdaq Stock Market nor shall suspension
by the SEC or the Nasdaq Stock Market have been threatened, as of the Closing
Date, either (A) in writing by the SEC or the Nasdaq Stock Market or (B) by
falling below the minimum listing maintenance requirements of the Nasdaq Stock
Market, in each case, excluding intraday suspensions of trading by the Nasdaq
Stock Market. 

     

    ARTICLE
5

    CONDITIONS
TO THE OBLIGATIONS

    OF
THE COMPANY

     

    The
obligations of the Company to issue and sell the Purchased Shares to the
Investors and to perform its obligations under this Agreement are subject to the
satisfaction or waiver by the Company, on or before such Closing Date, of the
following conditions:

     

    Section
5.01          Representations and
Warranties to be True and Correct. The representations and warranties
contained in Article
3 are true 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 the
Closing Date.

     

    Section
5.02          Performance. Each
Investor has 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.


    
      
         


      

      
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    ARTICLE
6

    COVENANTS


     

    Section
6.01          Reasonable Best
Efforts. Each party and its officers and directors shall use their
reasonable best efforts to take, or cause to be taken, all actions necessary or
desirable to consummate and make effective the Transaction as promptly as
practicable. The Company and its directors and officers shall use their
reasonable best efforts to obtain all necessary approvals of the Mergers
(including approvals of shareholders and Regulatory Authorities) and complete
the Mergers as expeditiously as possible. If requested by an Investor, the
Company shall provide the Investors and its counsel with copies of all
applications, filings, notices to, and correspondence with all Governmental
Authorities as well as Nasdaq in connection with the Mergers and the
Transaction, all of which shall be held, to the extent of information marked as
“confidential” therein, confidential by the Investors.

     

    Section
6.02          Filings and Other
Actions. 

     

    (a)           Each
Investor other than CapGen, 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 Authorities 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 Private Placement (including 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 Authorities, and the
expiration or termination of any 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 Investor, to the extent typically provided by such Investor to such third
parties or Governmental Authorities, as applicable, under such Investor’s
policies consistently applied and subject to such confidentiality requests as
such Investor may reasonably seek. Notwithstanding the immediately preceding
sentence, the Investor 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 Authority and not disclose to the Company any
information that is confidential and proprietary to the Investor. 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 6.02(a). Each
Investor 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 Authority in connection with the transactions to which
it will be party contemplated by this Agreement; provided, however, that (i) no
Investor shall have the right to review any such information relating to another
Investor and (ii) an Investor shall not be required to disclose to the Company
any information that is confidential and proprietary to such Investor. Each
party hereto agrees to keep the other party apprised of the status of matters
referred to in this Section 6.02(a). Each Investor shall promptly furnish the
Company, and the Company shall promptly furnish each Investor, 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 Authority in respect of the transactions contemplated by this
Agreement.


    
      
         


      

      
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    (b)           Each
Investor, on the one hand, agrees to furnish the Company, and the Company, on
the other hand, agrees, upon request, to furnish to each Investor, all
information concerning itself, its Affiliates, directors, officers, general
partners and managing members 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 Shareholder Approvals are
sought.

     

    (c)           To
the extent the Company receives any confidential information under this Section 6.02, the
Company shall not, and shall cause its employees, representatives and agents not
to, use, duplicate or disclose, in whole or in part, or permit the use,
duplication or disclosure of, any of such information in any manner whatsoever.
The Company shall be responsible for any breach of this Section 6.02 by any
of its employees, representatives and agents. All information furnished or
disclosed pursuant to this Section 6.02 shall
remain the sole property of the disclosing Investor.

     

    Section
6.03          Corporate Approvals;
Takeover Laws. The Company shall obtain all corporate approvals necessary
for this Agreement and the Private Placement (including the Transaction). The
Company shall take all reasonable steps to exclude the applicability of, or to
assist in any challenge to the validity or applicability to the Private
Placement (including the Transaction) of, any Takeover Laws.

     

    Section
6.04           Shareholder
Approvals. 

     

    (a)           The
Company’s Board of Directors shall recommend that the Company’s shareholders
approve the Private Placement (including the Transaction) and the amendment and
restatement of the Company’s Articles of Incorporation as provided herein (the
“Proposals”),
and shall not withdraw such recommendations.

     

    (b)           As
promptly as practicable following the date of this Agreement, the Company shall
call a special meeting of its shareholders (the “Shareholders’
Meeting”) for the purpose of obtaining the Requisite Shareholder Vote in
connection with this Agreement and the Proposals and shall use its reasonable
best efforts to cause such Shareholders’ Meeting to occur as promptly as
reasonably practicable and no later than forty (40) days after the Company’s
Registration Statement (as defined below) is declared effective by the SEC. The
Proxy Statement shall include the Company Board Recommendation and the Board
(and all applicable committees thereof) shall use its reasonable best efforts to
obtain from the Company’s shareholders the Requisite Shareholder Vote in favor
of the approval of the Proposals (individually and collectively, the “Shareholder
Approvals”).

     

    (c)           If
on the date for which the Shareholders’ Meeting is scheduled (the “Original Date”), the
Company has not received proxies representing a sufficient number of votes to
approve the Proposals, whether or not a quorum is present, the Investor shall
have the right to require the Company, and the Company shall have the right, to
postpone or adjourn the Shareholders’ Meeting to a date that shall not be more
than 45 days after the Original Date. If the Company continues not to receive
proxies representing a sufficient number of votes to approve the Proposals,
whether or not a quorum is present, the Investor shall have the right to require
the Company to, and the Company may, make one or more successive postponements
or adjournments of the Shareholders’ Meeting as long as the date of the
Shareholders’ Meeting is not postponed or adjourned more than an aggregate of 45
days from the Original Date in reliance on this Section 6.04(c). In
the event that the Shareholders’ Meeting is adjourned or postponed as a result
of Applicable Law, including the need to disseminate to Company shareholders any
amendments or supplements to the Proxy Statement, any days resulting from such
adjournment or postponement shall not be included for purposes of the
calculations of the number of days pursuant to this subsection.


    
      
         


      

      
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    Section
6.05          Proxy Statement; Other
Filings. As promptly as reasonably practicable after the date of this
Agreement (but in any event on or prior to the date the Registration Statement
is required to be filed under the Merger Agreement), (a) the Company shall
prepare and file with the SEC, subject to the prior review and approval of
CapGen (which approval shall not be unreasonably delayed, conditioned or
withheld), a letter to shareholders, notice of meeting, proxy statement and form
of proxy that will be provided to shareholders of the Company in connection with
seeking the Shareholder Approvals of the Proposals (including any amendments or
supplements) at the Shareholders’ Meeting and any schedules required to be filed
with the SEC in connection therewith (collectively, the “Proxy Statement”) and
a registration statement on Form S-4 (the “Registration
Statement”) registering shares of Company Common Stock issuable in the
Merger; and (b) the Company shall, or shall cause its affiliates to, prepare and
file with the SEC any other document to be filed with the SEC in connection with
the Merger or other filings (the “Other Filings”) as
required by the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder. None of the information supplied or to be
supplied by the Company or the respective Investors expressly for inclusion or
incorporation by reference in the Proxy Statement or the Registration Statement
will, at the time it is filed with the SEC, on the date it is first mailed to
the Company’s shareholders, or at the time of the Shareholders’ Meeting, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. None of the information supplied or to be supplied by the Company or
the Investor expressly for inclusion or incorporation by reference in each of
the Other Filings will, as of the date it is filed, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Proxy Statement and
the Other Filings will comply as to form in all material respects with the
requirements of the Securities Act and the Exchange Act. Each of the Company and
each Investor shall obtain and furnish the information concerning itself and its
Affiliates required to be included in the Proxy Statement and, to the extent
applicable, the Registration Statement and the Other Filings. The Company shall
use its reasonable best efforts to (i) respond as promptly as reasonably
practicable to any comments received from the SEC with respect to the Proxy
Statement, the Registration Statement and the Other Filings and (iii) seek
to have the Proxy Statement and the Registration Statement to be declared
definitive and effective by the SEC, respectively, at the earliest reasonably
practicable date. The Company shall promptly notify the Investors upon the
receipt of any comments from the SEC or its staff or any request from the SEC or
its staff for amendments or supplements to the Proxy Statement or the Other
Filings (but not the substance of such comments or requests, except to the
extent such comments or requests relate to information regarding the Investor)
and shall provide CapGen, and upon request to any other Investor, confidentially
copies of all correspondence between it, on the one hand, and the SEC and its
staff, on the other hand, relating to the Proxy Statement or the Other Filings.
If, at any time prior to the Shareholders’ Meeting, any information relating to
the Company or such Investor, or any of their respective Affiliates, directors
or officers should be discovered by the Company or any Investor, which should be
set forth in an amendment or supplement to the Proxy Statement, the Registration
Statement or the Other Filings so that the Proxy Statement, the Registration
Statement or the Other Filings shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading, the party that
discovers such information shall promptly notify the other party, and an
appropriate amendment or supplement describing such information shall be filed
by the Company with the SEC and, to the extent required by Applicable Law,
disseminated to the shareholders of the Company and to shareholders of ABI, as
appropriate. Notwithstanding anything to the contrary stated above, prior to
filing or mailing the Proxy Statement, the Registration Statement or filing the
Other Filings (or, in each case, any amendment or supplement thereto) or
responding to any comments of the SEC or its staff with respect thereto, the
Company shall provide CapGen, and to the extent it involves disclosure regarding
any other Investor, such other Investor shall be provided upon request insofar
as it relates to such Investor a reasonable opportunity to review and comment on
such document or response insofar as it relates to such Investor and shall
include in such document or response comments reasonably proposed by CapGen or
other Investors, as applicable.


    
      
         


      

      
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    Section
6.06          Registration Rights.
The Company and the Investor shall execute and deliver upon the execution and
delivery of this Agreement, the Registration Rights Agreement in substantially
the form attached as Schedule III, and the
Registration Rights Agreement shall become effective as of the
Closing.

     

    Section
6.07           Board Matters.


     

    (a)           Prior
to the Closing Date, the Company shall expand the Board by one director, and
cause the Nominating and Corporate Governance Committee of the Board to
nominate, and the Nominating and Corporate Governance Committee of the Board
shall have nominated and appointed, subject to the Closing, a designee of CapGen
as a director of the Company to fill, effective as of the Closing, the vacancy
created by such expansion of the Board. Such designee shall be in addition to
John Rose, who currently serves as a director of the Company. For so long as
CapGen or any of its affiliates owns more than 10% of the Company’s outstanding
Common Stock, and subject to satisfaction of all legal and governance
requirements applicable to all Board members regarding service as a director of
the Company, the Company shall cause the nomination of two persons designated by
CapGen for election to the Board at each annual meeting at which the term of the
director designated by CapGen expires, or upon the death, resignation, removal
or disqualification of such director, if earlier. CapGen shall provide written
notice of such designees to the Company, together with any information
pertaining to the nominated persons reasonably requested by the Company. Upon
receipt of such notice and information, the Company shall do, or cause to be
done, all things, and take, or cause to be taken, all actions necessary to cause
such persons to be elected as members of the Company’s Board as soon thereafter
as reasonably practicable. The Company shall also elect CapGen’s designees to
the Bank’s board of directors and to the board of directors of any other
subsidiary requested by the Investor.


    
      
         


      

      
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    (b)           CapGen’s
designee as a Company director shall provide the Company with a directors’ and
officers’ questionnaire and provide such other background information as
ordinarily requested by the Company from time to time of its other directors and
officers.

     

    (c)           The
Company shall waive any equity ownership requirements in connection with
CapGen’s designee and serving as director of the Company and the Bank based upon
the Investor’s holdings of shares of Company Common Stock.

     

    (d)           The
Company shall waive, or exempt CapGen’s designee from, any Florida residence
requirements in its bylaws or other applicable policies.

     

    Section
6.08           Restricted Shares.


     

    (a)           Each
Investor acknowledges and agrees that there are substantial restrictions on the
transferability of the Purchased Shares. Each Investor further understands and
agrees that the Purchased Shares have not been registered under the Securities
Act and are “restricted securities” within the meaning of Rule 144 under the
Securities Act and may not be sold, transferred, or otherwise disposed of
without registration under the Securities Act or pursuant to an exemption
therefrom.

     

    (b)           Notwithstanding
any other provision of this Article VI, each Investor covenants that the
Purchased Shares 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 Purchased Shares 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 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 Purchased Shares
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 the transferring Investor under this Agreement and the Registration
Rights Agreement with respect to such transferred Purchased Shares.

     

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


    
      
         


      

      
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    (d)           Each
Investor acknowledges and agrees that: (a) each certificate evidencing the
Purchased Shares will bear a legend to the effect set forth below; and (b)
except to the extent such restrictions are waived by the Company, neither shall
transfer any Purchased Shares represented by any such certificate without
complying with the restrictions on transfer described in the legend endorsed on
such certificate, as follows and which shall be delivered also as instructions
to the Company’s transfer agent:

     

    THE
SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR IN COMPLIANCE WITH RULE 144 THEREUNDER, UNLESS THE CORPORATION HAS RECEIVED
AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.

     

    (e)           The
restrictive legend set forth in Section 6.08(d) 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 Shares upon which it is
stamped or issue to such holder by electronic delivery at the applicable balance
account at DTC, if (i) such Purchased Shares are registered for resale under the
Securities Act, (ii) such Purchased Shares are sold or transferred pursuant to
Rule 144 (if the transferor is not an Affiliate of the Company), or (iii) such
Purchased Shares 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 Purchased
Shares for resale (the “Resale Registration
Statement”) or (ii) Rule 144 becoming available for the resale of
Purchased Shares, 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 Purchased Shares and without volume or manner-of-sale
restrictions, the Company shall, upon delivery of appropriate documentation by
the Holder, instruct the Transfer Agent at the Company’s expense, to remove the
legend from the Purchased Shares. If a legend is no longer required pursuant to
the foregoing, the Company will no later than 3 Trading Days following the
delivery by a Holder to the Company or the Transfer Agent (with notice to the
Company) of a legended certificate or instrument representing such Purchased
Shares (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 6.08(b),
(such third Trading Day, the “Legend Removal Date”)
deliver or cause to be delivered to such Investor a certificate or instrument
(as the case may be) representing such Purchased Shares 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 6.08(e).
Certificates for Purchased Shares free from all restrictive legends may be
transmitted by the Transfer Agent to the Investors by crediting the account of
the Investor’s prime broker with DTC as directed by such
Investor.


    
      
         


      

      
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    Each
Investor hereunder acknowledges its primary responsibilities under the
Securities Act and accordingly will not sell or otherwise transfer the Purchased
Shares 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 Resale Registration Statement remains
effective, each Investor hereunder may sell the Purchased Shares in accordance
with the plan of distribution contained in the Resale 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 Purchased
Shares are sold pursuant to Rule 144. Each Investor, severally and not jointly
with the other Investors, agrees that if it is notified by the Company in
writing at any time that the Resale Registration Statement registering the
resale of the Purchased Shares is not effective or that the prospectus included
in such Resale Registration Statement no longer complies with the requirements
of Section 10 of the Securities Act, the Investor will refrain from selling such
Purchased Shares until such time as the Investor is notified by the Company that
such Resale Registration Statement is effective or such prospectus is compliant
with Section 10 of the Exchange Act, unless such Investor is able to, and does,
sell such Purchased Shares pursuant to an available exemption from the
registration requirements of Section 5 of the Securities Act.

     

    Section
6.09          Information, Access and
Confidentiality. 

     

    (a)           From
the date of this Agreement until the date when the Investor Percentage Interest
is less than 5%, the Company shall, and will cause each of the Subsidiaries to,
give the Investor and its representatives (including, without limitation,
officers and employees of the Investor, and counsel, accountants, investment
bankers, potential lenders and other professionals retained by the Investor)
full access during normal business hours to all of their properties, books and
records (including, without limitation, tax returns and appropriate work papers
of independent auditors under normal professional courtesy, but excluding those
books and records that under Applicable Laws, or under confidentiality
agreements, are required to be kept confidential) and to knowledgeable personnel
of the Company and to such other information as the Investor may reasonably
request.

     

    (b)           The
Investor shall, and shall cause its representatives to, hold all material
nonpublic information received as a result of its access to the properties,
books and records of the Company or the Subsidiaries in confidence, except to
the extent that information (i) is or becomes available to the public (other
than through a breach of this Agreement), (ii) becomes available to the Investor
or its representatives from a third party that, insofar as the Investor is
aware, is not under an obligation to the Company or to a Subsidiary to keep the
information confidential, (iii) was known to the Investor or its
representatives before it was made available to the Investor or its
representative by the Company or a Subsidiary, or (iv) otherwise is
independently developed by the Investor or its representatives. The Investor
shall, at the Company’s request made at any time after the termination of this
Agreement without the Closing having occurred, deliver to the Company all
documents and other material nonpublic information obtained by the Investor or
its representatives from the Company or its Subsidiaries, or certify that such
material has been destroyed by the Investor. The Investor acknowledges that it
is aware of, and will comply with, applicable restrictions on the use of
material nonpublic information with respect to the Company and its Subsidiaries
imposed by the United States. federal securities laws. Any examination or
investigation made by the Investor, its representatives or any other persons as
contemplated by this Section 6.09 shall
not affect any of the representations and warranties hereunder.


    
      
         


      

      
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    Section
6.10          Conduct of Business Prior to
Closing. Except as otherwise expressly contemplated or permitted by this
Agreement or with the prior written consent of CapGen (which consent shall not
be unreasonably withheld or delayed) (which is a separate right granted to
CapGen for itself and no other Investor), during the period from the date of
this Agreement to the Closing Date, the Company shall, and shall cause each
Subsidiary to, (a) conduct its business only in the usual, regular and ordinary
course consistent with past practice; and (b) take no action that would
reasonably be expected to adversely affect or delay the receipt of any
Regulatory Authority or shareholder approvals required to consummate the Mergers
or the Transaction.

     

    Section
6.11          Company Forbearances.
Except as expressly contemplated or permitted by this Agreement, during the
period from the date of this Agreement to the Closing, the Company shall not,
and shall not permit any Subsidiary to, without the prior written consent of
CapGen (which is a separate right granted to CapGen for itself and no other
Investor):

     

    (a)           declare
or pay any dividends or distributions on its capital stock except for dividends
declared and payable on Company Common Stock at the same times and amounts as
have been paid in 2009, or directly or indirectly redeem, purchase or otherwise
acquire, any shares of its capital stock or other equity interest or any
securities or obligations convertible into or exchangeable for any shares of its
capital stock or other equity interest or stock appreciation rights or grant any
person any right to acquire any shares of its capital stock or other equity
interest, other than (i) dividends paid by any wholly-owned Subsidiaries, and
(ii) directors’ fees paid in Company Common Stock in accordance with prior
practices as set forth in Section 6.11(a) of the Disclosure
Schedule;

     

    (b)           issue
or commit to issue any additional shares of capital stock or other equity
interest, or any securities convertible into or exercisable for, or any rights,
warrants or options to acquire, any additional shares of capital stock or other
equity interest (except (i) options, restricted stock or other equity
grants approved by the Board or the Organization and Compensation Committee of
the Board under the Company’s equity incentive plans in accordance with past
practice, (ii) pursuant to the exercise of outstanding options, (iii) pursuant
to the terms of the Merger Agreement or (iv) shares of Common Stock for an
aggregate of $30 million to the Investors (including approximately $19.6 million
to CapGen) as provided herein;

     

    (c)           amend
the articles of incorporation, bylaws or other governing instruments of the
Company or any Subsidiary, except that the Company shall adopt and use its best
efforts to obtain shareholder approval of the Amended and Restated Articles of
Incorporation attached as Schedule II hereto
and amend and restate the Company’s bylaws as provided in Schedule II or other
governing instruments under the request or with the consent of the
Investor;

     

    (d)           incur
any additional debt obligation or other obligation for borrowed money except in
the ordinary course of the business of the Subsidiaries consistent with past
practices (which shall include, for the Subsidiaries that are depository
institutions, creation of deposit liabilities, purchases of federal funds, sales
of certificates of deposit, advances from Federal Home Loan Bank of Atlanta or
the Federal Reserve Bank of Atlanta and entry into repurchase agreements fully
secured by U.S. government or agency securities), or impose, or suffer the
imposition, on any share of stock held by the Company or any Subsidiary of any
lien or permit any such lien to exist;


    
      
         


      

      
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    (e)           adjust,
split, combine or reclassify any capital stock of the Company or any Subsidiary
or issue or authorize the issuance of any other securities with respect to or in
substitution for shares of its capital stock or sell, lease, mortgage or
otherwise encumber any shares of capital stock of any Subsidiary or any asset of
the Company or any Subsidiary other than in the ordinary course of business as
permitted by Section
6.11(d) for reasonable and adequate consideration;

     

    (f)
           acquire any
direct or indirect equity interest in any person, other than in connection with
(a) foreclosures in the ordinary course of business and (b) holdings
of securities solely in its fiduciary capacity;

     

    (g)           grant
any increase in compensation or benefits to the directors, officers or employees
of the Company or any Subsidiary, except in accordance with past practices
previously disclosed; pay any bonus except in accordance with past practices and
pursuant to the provisions of an applicable program or plan adopted by the Board
prior to the date of this Agreement as previously disclosed; or, enter into or
amend, except to waive or eliminate any provision that would deem the
acquisition of the Purchased Shares by the Investors or that any other aspect of
the Transactions are a change in control under, any severance or change in
control agreements with directors, officers or employees of the Company or any
Subsidiary;

     

    (h)           enter
into or amend any employment agreement between the Company or any Subsidiary and
any person (unless such amendment is required by Applicable Law) that the
Company does not have the unconditional right to terminate without liability
(other than liability for services already rendered), at any time on or after
the Closing;

     

    (i)
           adopt any new
employee benefit plan or employee benefits of the Company or any Subsidiary or
make any material change in or to any existing employee benefit plans or
employee benefits of the Company or any Subsidiary, other than any such change
that is required by Applicable Law or that, in the opinion of counsel, is
necessary or advisable to maintain the tax qualified status of any such plan, or
is required under the terms of the Merger Agreement;

     

    (j)  
         make any material change
in any accounting methods or systems of internal accounting controls, except as
may be appropriate to conform to changes in GAAP or as required by any
Regulatory Authority;

     

    (k)           (a) commence
any litigation other than in connection with collections of debt consistent with
past practice, (b) settle any litigation involving any liability of the
Company or any Subsidiary for money damages which individually or in the
aggregate, exceed or impose restrictions upon the operations of the Company or
any Subsidiary, or (c) modify, amend or terminate any material contract
described in Section
2.14 or waive, release, compromise or assign any material rights or
claims;


    
      
         


      

      
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    (l)  
         enter into any material
transaction not in the ordinary course of business, or not consistent with safe
and sound banking practices or Applicable Law;

     

    (m)          fail
to file timely any report required to be filed by it with any Regulatory
Authority, including the SEC;

     

    (n)           make
any loan or advance to any 5% or greater shareholder, director or officer of the
Company or any of the Subsidiaries, or any member of the immediate family of the
foregoing, or any Related Interest or any affiliate of any of the foregoing,
except for renewals of any loan or advance outstanding as of the date of this
Agreement on terms and conditions substantially similar to the original loan or
advance;

     

    (o)           cancel
without payment in full, or modify in any material respect any agreement
relating to, any loan or other obligation receivable from any 5% shareholder,
director or officer of the Company or any Subsidiary or any member of the
immediate family of the foregoing, or any Related Interest or any affiliate of
any of the foregoing;

     

    (p)           enter
into any agreement for services or otherwise with any 5% shareholders,
directors, officers or employees of the Company or any Subsidiary or any member
of the immediate family of the foregoing, or any Related Interest or any
affiliate of any of the foregoing;

     

    (q)           modify,
amend or terminate any material contract described in Section 2.14 or
waive, release, compromise or assign any material rights or claims, except in
the ordinary course of business consistent with past practice and for fair
consideration;

     

    (r)           
close any banking office where a notice of such closure is required under
Section 42 of the Federal Deposit Insurance Act, as amended (the “FDI Act”) and
applicable regulations thereunder;

     

    (s)           except
as required by Applicable Law or as required by applicable Regulatory Authority,
change its or any of the Subsidiaries’ lending, investment, liability management
and other material banking policies in any material respect;

     

    (t)          
 take any action that would cause the Transactions to be subject to
requirements imposed by any Takeover Law, or fail to take all necessary steps
within its control to exempt (or ensure the continued exemption of) the
Transactions from, or if necessary challenge the validity or applicability of,
any applicable Takeover Law, as now or hereafter in effect;

     

    (u)           make
or renew any loan or extension of credit to any person (including, in the case
of an individual, his or her immediate family) or to any Related Interest or
otherwise, except in accordance with the Bank’s policies, Applicable Law and the
MOU;

     

    (v)           increase
or decrease the rates of interest paid on deposits or increase the amount of
brokered or internet deposits, except consistent with the Bank’s past
practices;


    
      
         


      

      
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    (w)          purchase
or otherwise acquire any investment securities for its own account, except in
accordance with the Bank’s policies, including its asset/liability policy, and
in accordance with Applicable Law and the MOU;

     

    (x)           except
for OREO reflected on the books of the Company or the Bank as of the date
hereof, the sale of which will not result in a loss, individually or in the
aggregate of $100,000 or more, sell, transfer, convey or otherwise dispose of
any real property or other assets or interests therein having a book value
individually or in the aggregate in excess of or in exchange for consideration
in excess of, $100,000 without prior Board approval, and in accordance with the
Company’s policies, Applicable Law and the MOU;

     

    (y)           make
or commit to make any capital expenditures in excess of $100,000, individually
or in the aggregate, without prior Board approval; or

     

    (z)           agree
to, or make any commitment to, take any of the actions prohibited by this Section
6.11.

     

    Section
6.12          Investor Call. CapGen
will issue the Investor Call to its investors 10 days after receipt of the last
approval of the Regulatory Authorities needed for Closing of the Mergers and the
Transaction, or at such other later date and time as may agreed upon by CapGen
and the Company.

     

    Section
6.13          Press Releases; Public
Disclosure. 

     

    (a)           The
Company and CapGen shall consult with each other before issuing any press
release with respect to the Transaction or this Agreement and shall not issue
any such press release or make any such public statements without the prior
consent of the other, which consent shall not be unreasonably withheld or
delayed; provided, however, that the Company
may, without the prior consent of CapGen (but after such consultation, to the
extent practicable in the circumstances), issue such press release or make such
public statements or filings as may be required by Applicable Law or the Nasdaq
Stock Market.

     

    (b)           Subject
to each party’s disclosure obligations imposed by law or regulation or the
Nasdaq Stock Market rules applicable to the Company, 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 Investor 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 6.13
shall prevent the Company from making timely disclosures under the Securities
Act, the Exchange Act and the Nasdaq Stock Market rules. CapGen authorizes the
Company to publicly disclose its name but otherwise no such public disclosure of
an Investor or its investment advisor will be made by the Company, except to the
extent required by applicable law or authorized in writing by such Investor, and
to all applicable Governmental Authorities and the Nasdaq Stock Market. The
Company and each Investor agree that within one business day following the
Closing, the Company shall publicly disclose the closing of the transactions
contemplated by this Agreement including the Private Placement and the Merger.
From and after such disclosure, except to the extent an Investor has requested
and received material non-public information from the Company after the date
hereof, no Investor (other than CapGen) shall be in possession of any material,
non-public information received from the Company in connection with the
Transaction (including the Private Placement). On or before 9:00 A.M. New York
City time, on the second business day immediately following the Closing Date,
the Company will file a Current Report on Form 8-K with the SEC describing the
Mergers, if applicable, and the terms of this Agreement.


    
      
         


      

      
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    (c)           By
9:00 A.M., New York City time, on the Business Day immediately following
execution of this Agreement, the Company shall issue one or more press releases
(collectively, the “Press Release”)
disclosing all material terms of the transactions contemplated hereby (including
the Private Placement and the Mergers). On or before 9:00 A.M., New York City
time, on the fourth Business Day immediately following the execution of this
Agreement, the Company will file a Current Report on Form 8-K with the SEC
describing the terms of the Private Placement Documents and the Merger Agreement
(and including as exhibits to such Current Report on Form 8-K the material
Private Placement Documents, including, without limitation, this Agreement, the
Registration Rights Agreement and the Merger Agreement. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of the Investor or
any affiliate or investment adviser of the Investor, or include the name of the
Investor or any affiliate or investment adviser of the Investor in any press
release or in any filing with the SEC (other than a Registration Statement or
Resale Registration Statement) or any regulatory agency or Nasdaq Stock Market,
without the prior written consent of the Investor, except (i) as required by the
federal securities laws and (ii) to the extent such disclosure is required by
law, at the request of applicable Governmental Authorities or the Nasdaq Stock
Market. From and after the issuance of the Press Release and the issuance of the
Company’s earnings release for the quarter ended March 31, 2010, the Investors
(other than CapGen) shall not be in possession of any material, non-public
information received from the Company, any Subsidiary or any of their respective
officers, directors or employees.

     

    ARTICLE
7

    OTHER
AGREEMENTS

     

    Section
7.01          Bank Holding Company
Status. Solely as a result of the consummation of the Private Placement
and the Merger, no Investor other than CapGen shall exercise “control” for
purposes of the BHCA or the Change in Bank Control Act, of the Company or the
Bank.

     

    Section
7.02          Preemptive Rights.
(a) If the Company offers to sell Covered Securities (as defined below) in a
public or private offering of Covered Securities solely for cash any time during
a period of 24 months commencing on the Closing Date (a “Qualified Offering”),
each Investor shall be afforded the opportunity to acquire from the Company, for
the same price and on the same terms as such Covered Securities are offered, in
the aggregate up to the amount of Covered Securities required to enable it to
maintain its Investor Percentage Interest. “Investor Percentage
Interest” means, as of any date of determination, the percentage equal to
(A) the aggregate number of shares of Common Stock beneficially owned by the
Investor as of the date of determination divided by (B) the total number of
outstanding shares of Common Stock as of such date. “Covered Securities”
means Common Stock and any rights, options or warrants to purchase or securities
convertible into or exercisable or exchangeable for Common Stock, other than
securities that are (A) issued by the Company pursuant to any employment
contract, employee incentive or benefit plan, stock purchase plan, stock
ownership plan, stock option or equity compensation plan or other similar plan
where stock is being issued or offered to a trust, other entity to or for the
benefit of any employees, consultants, officers or directors of the Company, (B)
issued by the Company in connection with a business combination or other merger,
acquisition or disposition transaction, partnership, joint venture, strategic
alliance or investment by the Company or similar non-capital raising
transaction, or (C) issued as a dividend or in connection with a dividend
reinvestment or stockholder purchase plan.


    
      
         


      

      
        37

        
          

        

      

      
         


      

    


    (b)           Prior
to making any Qualified Offering of Covered Securities, the Company shall give
the Investor written notice at the address shown on each Investor’s signature
page hereto of its intention to make such an offering, describing, to the extent
then known, the anticipated amount of securities, and other material terms then
known to the Company upon which the Company proposes to offer the same (such
notice, a “Qualified
Offering Notice”). The Investor shall then have 10 days after receipt of
the Qualified Offering Notice (the “Offer Period”) to
notify the Company in writing that it intends to exercise such preemptive right
and as to the amount of Covered Securities the Investor desires to purchase, up
to the maximum amount calculated pursuant to Section 7.02(a) (the
“Designated
Securities”). Such notice constitutes a non-binding indication of
interest of the Investor to purchase the amount of Designated Securities
specified by the Investor (or a proportionately lesser amount if the amount of
Covered Securities to be offered in such Qualified Offering is subsequently
reduced) at the price (or range of prices) established in the Qualified Offering
and other terms set forth in the Company’s notice to it. The failure to respond
during the Offer Period constitutes a waiver of its preemptive right in respect
of such offering. The sale of the Covered Securities in the Qualified Offering,
including any Designated Securities, shall be closed not later than 30 days
after the end of the Offer Period except as to any Investor that requires prior
approval of the Federal Reserve and/or other Governmental Authorities, in which
case the closing of any the sale of Covered Securities to such Investor shall
occur as soon as practicable following the receipt of all necessary Governmental
Authority approvals and the expiration of statutory waiting periods. The Covered
Securities to be sold to other investors in such Qualified Offering shall be
sold at a price not less than, and upon terms no more favorable to such other
investors than, those specified in the Qualified Offering Notice. If the Company
does not consummate the sale of Covered Securities to other investors within
such 30-day period (excluding Investors that require prior approval of the
Federal Reserve and/or other Governmental Authorities), the right provided
hereunder shall be revived and such securities shall not be offered unless first
reoffered to the Investors in accordance herewith. Notwithstanding anything to
the contrary set forth herein and unless otherwise agreed by the Investor, by
not later than the end of such 30-day period, the Company shall either confirm
in writing to the Investor that the Qualified Offering has been abandoned or
shall publicly disclose its intention to issue the Covered Securities in the
Qualified Offering, in either case in such a manner that the Investor will not
be in possession of any material, non-public information
thereafter.

     

    (c)           If
the Investor exercises its preemptive right provided in this Section 7.02 with
respect to a Qualified Offering that is an underwritten public offering or an
offering made to qualified institutional buyers (as such term is defined in SEC
Rule 144A under the Securities Act) for resale pursuant to Rule 144A under the
Securities Act (a “Rule 144A offering”),
a private placement or other offering, whether not registered under the
Securities Act, the Company shall offer and sell the Investor, if any such
offering is consummated, the Designated Securities (as adjusted, upward to
reflect the actual size of such offering when priced) at the same price as the
Covered Securities are offered to third persons (not including the underwriters
or the initial purchasers in a Rule 144A offering that is being reoffered by the
initial purchasers) in such offering and shall provide written notice of such
price upon the determination of such price.


    
      
         


      

      
        38

        
          

        

      

      
         


      

    


    (d)           Anything
to the contrary in this Section 7.02
notwithstanding, the preemptive right to purchase Covered Securities granted by
this Section
7.02 shall terminate as of and not be available any time after the date
on which the Investor sells all of the Purchased Shares or any interest
therein.

     

    (e)           In
addition to the pricing provision of Section 7.02(c), the
Company will offer and sell the Designated Securities to the Investor upon terms
and conditions not less favorable than the most favorable terms and conditions
offered to other persons or entities in a Qualified Offering.

     

    Section
7.03          Compensation Matters.
Prior to the Closing, the Board (or, if appropriate, any committee thereof)
shall adopt appropriate resolutions and take all other actions necessary and
appropriate (including securing any necessary waivers or consents) to provide
that the issuance of the Purchased Shares to the Investor as contemplated by
this Agreement will not trigger any payment, termination or rights under any
“change of control” provision in any agreements to which the Company, the Bank
or any of the Subsidiaries is a party, including any employment, “change in
control,” severance or other compensatory agreements and any Benefit Plan, which
results in payments to the counterparty, the acceleration or vesting of benefits
or payments (including debt repayments).

     

    Section
7.04          Reasonable Best
Efforts. After the Closing Date, each party and its officers and
directors shall use their respective reasonable best efforts to take, or cause
to be taken, all further actions necessary or desirable to carry out the
purposes of this Agreement and their respective covenants, agreements and
obligations hereunder.

     

    Section
7.05          Manner of Offerings.
The Company will offer and issue the shares of Common Stock to Investors that
are Accredited Investors in transactions exempt from registration under Section
4(2) of the Securities Act on terms and conditions, including price, no more
favorable than provided to CapGen, without CapGen's prior written consent,
following full disclosure of all such terms and conditions (including any side
letters or other agreements, arrangement or understandings) to CapGen. If CapGen
determines that the other Investors are receiving a more favorable price, or
terms and conditions more favorable than those granted to the Investor hereby,
the Company will cooperate with CapGen to provide CapGen with terms, conditions
and rights in favor of CapGen no less favorable than those granted to any other
Person in the Private Placement (including the Transaction). CapGen shall
purchase its Purchased Shares at the same per share price being offered to the
other Investors, and the complete terms and conditions of CapGen’s purchase of
its Purchased Shares are set forth herein.


    
      
         


      

      
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    Section
7.06          Indemnification.


     

    (a)           Indemnification of the
Investor. In addition to the indemnity provided in the Registration
Rights Agreement, the Company will indemnify and hold the Investor and its
directors, officers, shareholders, members, partners, 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), each person who
controls the Investor (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (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) of such controlling person (each, an
“Investor
Party”), from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in permitted settlements, court costs and reasonable attorneys’ fees of one
counsel and costs of investigation that any such Investor Party may suffer or
incur as a result of (i) any breach of any of the representations, warranties,
covenants or agreements made by the Company in this Agreement or (ii) any action
instituted against an Investor Party in any capacity, by any shareholder of the
Company who is not Investor Party or an affiliate of that Investor Party, with
respect to any of the transactions contemplated by this Agreement or the Merger
Agreement. The Company will not be liable to any Investor Party under this
Agreement to the extent, but only to the extent that a loss, claim, damage or
liability is attributable to any Investor Party’s breach of any of the
representations, warranties, covenants or agreements made by such Purchaser
Party in this Agreement or in the other Private Placement
Documents.

     

    (b)           Conduct of Indemnification
Proceedings. Promptly after receipt by any person (the “Indemnified Person”)
of notice of any demand, claim or circumstances which would or might give rise
to a claim or the commencement of any action, proceeding or investigation in
respect of which indemnity may be sought pursuant to this Section 7.06(a), such
Indemnified Person shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of one counsel
reasonably satisfactory to such Indemnified Person, and shall assume the payment
of all fees and expenses; provided, however, the failure of any
Indemnified Person so to notify the Company shall not relieve the Company of its
obligations hereunder except to the extent that the Company is actually and
materially and adversely prejudiced by such failure to notify. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless: (i) the Company and the Indemnified Person shall
have mutually agreed to the retention of such counsel; (ii) the Company shall
have failed promptly to assume the defense of such proceeding and to employ
counsel reasonably satisfactory to such Indemnified Person in such proceeding;
or (iii) in the reasonable judgment of counsel to such Indemnified Person,
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. The Company shall not be
liable for any settlement of any proceeding effected without its written
consent, which consent shall not be unreasonably withheld, delayed or
conditioned. Without the prior written consent of the Indemnified Person, which
consent shall not be unreasonably withheld, delayed or conditioned, the Company
shall not effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Person
from all liability arising out of such proceeding.


    
      
         


      

      
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    ARTICLE
8

    TERMINATION

     

    Section
8.01          Methods of
Termination. This Agreement may be terminated at any time prior to the
Closing by:

     

    (a)           the
mutual written consent in writing of an Investor and the Company, but only as to
the terminating Investor;

     

    (b)           any
Investor but only with respect to the terminating Investor or the Company if the
Closing shall not have occurred by the December 31, 2010 (the “Termination Date”),
provided, however, that the right to
terminate this Agreement under this Section 8.01(b) shall
not be available to any party whose breach of any representation or warranty or
failure to perform any obligation under this Agreement shall have caused or
resulted in the failure of the Closing;

     

    (c)           any
Investor, but only as to the terminating Investor, if the Shareholder Approvals
are not received;

     

    (d)           the
Company if there has been a breach of any representation, warranty, covenant or
agreement made by an Investor in this Agreement, or any such representation and
warranty shall have become untrue after the date of this Agreement, such that
Section 5.01
would not be satisfied and such breach or condition is not curable or, if
curable, is not cured within the earlier of (i) 30 days after written notice
thereof is given by the Company to the Investor and (ii) the Termination Date;
provided that the
Company is not then in breach of any representation, warranty, covenant,
agreement or other obligation contained in this Agreement and, provided further,
that such termination by the Company shall only be as to the breaching
Investor;

     

    (e)           an
Investor if there has been a breach of any representation, warranty, covenant or
agreement made by the Company in this Agreement, or any such representation and
warranty shall have become untrue after the date of this Agreement, such that
Section 4.01
would not be satisfied and such breach or condition is not curable or, if
curable, is not cured within the earlier of (i) 30 days after written notice
thereof is given by the Investor to the Company and (ii) the Termination Date;
provided that the
terminating Investor is not then in material breach of any representation,
warranty, covenant, agreement or other obligation contained in this Agreement
and provided further
that such termination by an Investor shall only be as to such
Investor;

     

    (f)           
any Investor, if the Company has not sold an aggregate of $30 million of Common
Stock to Investors hereunder; or

     

    (g)           the
Company or the Investor in writing at any time after any applicable Regulatory
Authority has denied finally or requested the withdrawal of any application for
approval of the Transaction or the Mergers.

     

    (h)           CapGen,
if other Investors which have committed $2.5 million or more to acquire
Purchased Shares are no longer parties to this Agreement and replacement
Investors do not enter into this Agreement within 45 days after the termination
by such initial other Investor, in which case the other Investors may terminate
this Agreement upon or following CapGen’s termination under this Section
8.01(h).


    
      
         


      

      
        41

        
          

        

      

      
         


      

    


    A
termination by an Investor or by the Company with respect to one or more
Investors, shall not effect a termination of this Agreement or the rights and
obligations of the remaining parties to this Agreement, including each remaining
Investor’s ability to terminate this Agreement.

     

    Section
8.02          Effect of
Termination. 

     

    (a)           In
the event of termination pursuant to Section 8.01 hereof,
and except as otherwise stated therein, written notice thereof shall be given to
the other parties, and this Agreement shall terminate immediately and to the
extent provided in Section 8.01 upon
receipt of such notice (or as otherwise set forth in Section 8.01(d) and
Section
8.01(e)), unless an extension is consented to in writing by the party
having the right to terminate. If this Agreement is terminated as provided
herein, this Agreement shall become void as and to the extent provided in
Section 8.01,
except that Section
7.06, this Section 8.02 and
Article 9 shall
survive any such termination; provided, however, that
nothing herein shall relieve any breaching party from liability for an uncured
willful breach of a representation, warranty, covenant, obligation or agreement
giving rise to such termination.

     

    (b)           In
the event that this Agreement is terminated by or as to CapGen, then, except as
provided in this Section 8.02(b), the
Company shall, one Business Day after the date of such termination, pay to
CapGen, by wire transfer of immediately available funds, the amount of $500,000
(the “Termination
Fee”). The Termination Fee will not be payable upon termination of this
Agreement only if (i) the Company’s Board has unanimously approved this
Agreement and the Transaction contemplated herein and recommended that the
Company’s shareholders vote to approve the Transaction and has not modified or
rescinded such approval or modified or withdrawn such recommendation to the
Company’s shareholders, (ii) the Company’s directors and officers have voted all
their shares of Company Common Stock as provided in Section 2.28 pursuant
to the Insider Shareholder Vote and (iii) CapGen has not received all necessary
Regulatory Authority approvals needed for its investment in the Purchased Shares
or CapGen breaches its obligations under Section 3.06 hereof,
or the Company, notwithstanding the performance of its obligations to secure all
requisite regulatory approvals for the Merger, has not received such regulatory
approval. The Company acknowledges that this Section 8.02(b) is an
integral part of the Transaction and is in recognition of the time, expense and
efforts expended and to be expended by CapGen as the lead Investor, and that,
without this Section
8.02(b), CapGen would not enter into this Agreement. Accordingly, if the
Company fails to promptly pay the Termination Fee that is payable and, in order
to obtain such payment, CapGen commences a lawsuit or action that results in a
judgment for any of such Termination Fee, the Company shall pay CapGen its costs
and expenses (including attorneys’ fees and charges) in connection with such
lawsuit. Payment of the Termination Fee described in this Section 8.02(b) shall
be the exclusive remedy for termination of this Agreement as specified in this
Section 8.02(b)
and shall be in lieu of damages incurred in the event of any termination of this
Agreement.


    
      
         


      

      
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    ARTICLE
9

    MISCELLANEOUS

     

    Section
9.01          Certain Definitions.
(a) The following definitions shall be applicable to the terms set forth below
as used in this Agreement:

     

    “Accredited Investor”
has the meaning set forth in Rule 501 promulgated under the Securities
Act.

     

    “affiliate” means,
with respect to any person, any other person which directly, or indirectly
through one or more intermediaries, controls, is controlled by or is under
common control with, such person.

     

    “Applicable Law” means
any domestic or foreign, federal, state or local, statute, law, ordinance, rule,
administrative interpretation, regulation, order, writ, injunction, directive,
judgment, decree or other requirement of any Governmental Authority applicable
to the Company or the Subsidiaries, or their respective properties, assets,
officers, directors, employees or agents (in connection with such officers’,
directors’, employees’ or agents’ activities on behalf of such
entity).

     

    “beneficial ownership”
and correlative terms have the meaning ascribed in Section 13(d)(3) of the
Exchange Act and Rule 13d-3 thereunder)

     

    “Board” means the
Board of Directors of the Company.

     

    “Business Day” means
any day that it is not a Saturday, Sunday or other day in which banks in the
State of Florida or New York are authorized or required by law to be
closed.

     

    “Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the regulations promulgated
thereunder.

     

    “GAAP” means U.S.
generally accepted accounting principles.

     

    “Material Adverse
Effect” means any effect, circumstance, occurrence or change that,
individually or in the aggregate, (i) is material and adverse to the business,
assets, liabilities, results of operations, financial condition, cash flows or
prospects of the Company and the Subsidiaries (as defined below), taken as a
whole or (ii) would materially impair the ability of the Company to perform its
obligations under this Agreement or consummate the Closing; provided, however, that Material
Adverse Effect shall not be deemed to include (a) any effects,
circumstances, occurrences or changes, after the date hereof, generally
affecting the commercial banking industry, the economy, or the financial, real
estate, securities or credit markets in the United States or elsewhere in the
world, including effects on such industry, economy or markets resulting from any
regulatory or political conditions or developments, or any outbreak or
escalation of hostilities, declared or undeclared acts of war or terrorism,
(b) changes or proposed changes, after the date hereof, in GAAP,
(c) changes or proposed changes, after the date hereof, in laws governing
financial institutions and laws of general applicability or related policies or
interpretations of any Governmental Authority (in the case of each of clauses
(a), (b) and (c), other than effects, circumstances, occurrences or changes
to the extent that such effects, circumstances, occurrences or changes have a
materially disproportionate adverse affect on the Company and the Subsidiaries
relative to other companies in the commercial banking industry), or
(d) changes in the market price or trading volume of Common Stock (it being
understood and agreed that the exception set forth in this clause (d) does
not apply to the underlying reason or cause giving rise to or contributing to
any such change).


    
      
         


      

      
        43

        
          

        

      

      
         


      

    


    “person” means an
individual, corporation, limited liability company, partnership, association,
trust, unincorporated organization, other entity or group (as defined in
Section 13(d) of the Exchange Act) and shall include any successor (by
merger or otherwise) of such entity.

     

    “Related Interest” has
the meaning ascribed to it by Regulation O promulgated by the Federal Reserve
Board.

     

    “SEC” means the U.S.
Securities and Exchange Commission.

     

    “Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.

     

    “Subsidiary” means any
person of which (a) the Company or any of its Subsidiaries is a general partner,
(b) the voting power to elect a majority of the board of directors or others
performing similar functions is held by the Company and or any one or more of
its Subsidiaries, or (c) more than 50% of the equity interests is, directly or
indirectly, owned or controlled by the Company or any one or more of its
Subsidiaries.

     

    (b)           In
this Agreement, (i) the words “include,” “includes,” and “including” and
derivatives thereof are deemed to include and mean “without limitation,” whether
by enumeration or otherwise; (ii) any reference to an agreement means that
agreement as amended or supplemented, subject to any restrictions on amendment
contained in that agreement; (iii) unless specified otherwise, any reference to
a statute or regulation means that statute or regulation as amended or
supplemented from time to time and any corresponding provisions of successor
statutes or regulations; (iv) if any date specified in this Agreement as a date
for taking action falls on a day that is not a Business Day, then that action
may be taken on the next Business Day; and (v) the words “party” and “parties”
refer only to a named party to this Agreement. The singular shall include the
plural, and any reference to gender shall include all genders.

     

    (c)           As
used in this Agreement and for all purposes hereof, all references to the
Company, the Bank and their respective Subsidiaries shall mean and include the
surviving entities of the Mergers and their respective Subsidiaries as of and
following the Merger Effective Times.

     

    Section
9.02         Specific Performance.
Each party acknowledges that the other party would be damaged irreparably in the
event any provision of this Agreement is not performed in accordance with its
specific terms or otherwise is breached, so that a party shall be entitled to
injunctive relief to prevent breaches of this Agreement and to enforce
specifically this Agreement and its terms and provisions in addition to any
other remedy to which such party may be entitled, at law or in equity. In
particular, the parties acknowledge that the business of the Company and the
Subsidiaries is unique and recognize and affirm that in the event the Company
breaches this Agreement, money damages may be inadequate and the Investor would
have no adequate remedy at law, so that the Investor shall have the right, in
addition to any other rights and remedies existing in its favor, to enforce its
rights and the Company’s obligations under this Agreement not only by action for
damages but also by action for specific performance, injunctive, or other
equitable relief.

     


    
      
         


      

      
        44

        
          

        

      

      
         


      

    


    Section
9.03         Expenses. Each party
shall pay its own fees and expenses (including, without limitation, the fees and
expenses of its agents, representatives, attorneys, and accountants) incurred in
connection with the negotiation, drafting, execution, delivery, and performance
of this Agreement and the Transaction, except as provided in Section
8.02(b).

     

    Section
9.04          Survival. The
representations and warranties of the Company contained herein shall survive the
Closing and the delivery of and payment for the Purchased Shares. 

     

    Section
9.05          Notices. All notices,
requests, consents and other communications hereunder shall be in writing and
shall be delivered in person or mailed by certified or registered mail, return
receipt requested, or sent by a recognized overnight courier service, addressed
as follows:

     

    
      	
               
      

            	
              If
      to the Company, at:

            


    

     

    
      	
               
      

            	
              Jacksonville
      Bancorp, Inc.

            


    

    
      	
               
      

            	
              100
      North Laura Street, Suite 1000

            


    

    
      	
               
      

            	
              Jacksonville,
      Florida 32202

            


    

    
      	
               
      

            	
              Attention:
      Gilbert J. Pomar

            


    

     

    
      	
               
      

            	
              with
      a copy to:

            


    

     

    
      	
               
      

            	
              McGuireWoods

            


    

    
      	
               
      

            	
              Bank
      of America Tower

            


    

    
      	
               
      

            	
              50
      North Laura Street, Suite 3300

            


    

    
      	
               
      

            	
              Jacksonville,
      Florida 32202-3661

            


    

    
      	
               
      

            	
              Attention:
      Halcyon E. Skinner

            


    

     

    
      	
               
      

            	
              If
      to the Investor, at:

            


    

     

    
      	
               
      

            	
              CapGen
      Capital Group IV LP

            


    

    
      	
               
      

            	
              c/o
      CapGen Financial

            


    

    
      	
               
      

            	
              280
      Park Avenue

            


    

    
      	
               
      

            	
              40th
      Floor West, Suite 401

            


    

    
      	
               
      

            	
              New
      York, New York 10017

            


    

    
      	
               
      

            	
              Attention:
      John P. Sullivan

            


    


    
      
         


      

      
        45

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              with
      a copy to:

            


    

     

    
      	
               
      

            	
              Jones
      Day

            


    

    
      	
               
      

            	
              1420
      Peachtree Street, N.E.

            


    

    
      	
               
      

            	
              Suite
      800

            


    

    
      	
               
      

            	
              Atlanta,
      Georgia 30309-3053

            


    

    
      	
               
      

            	
              Attention:
      Ralph F. MacDonald, III

            


    

     

    
      	
               
      

            	
              If
      to any other Investor:

            


    

     

    
      	
               
      

            	
              As
      provided on such Investor’s signature page
  hereto

            


    

     

    or, in
any such case, at such other address or addresses as shall have been furnished
in writing by such party to the others.

     

    Section
9.06          No Assignment; No
Delegation. (a) No party may assign any of its rights under this
Agreement, except with the prior written consent of the other party, provided the Investor may
assign its rights to the Purchased Shares to an affiliate or any person that
shares a common discretionary investment adviser with the Investor without
consent. All assignments of rights are prohibited under this subsection, whether
they are voluntary or involuntary, by merger (regardless of whether the party is
the surviving or disappearing entity), consolidation, dissolution, operation of
law, or any other manner. For purposes of this Section 9.06, a
“change of control” is deemed an assignment of rights.

     

    (b)           No
party may delegate any performance under this Agreement.

     

    (c)           Any
purported assignment of rights or delegation of performance in violation of this
Section 9.06 is
void.

     

    Section
9.07          No Third Party
Beneficiaries. This Agreement is not intended to and shall not confer any
rights or remedies upon any person other than the parties hereto, whether as
third party beneficiaries or otherwise, other than Indemnified
Persons.

     

    Section
9.08          Governing Law. The
laws of the State of New York (without giving effect to its conflicts of law
principles) govern all matters arising out of or relating to this Agreement,
including, without limitation, its validity, interpretation, construction,
performance, and enforcement.

     

    Section
9.09          Amendments and
Waivers. The parties may amend this Agreement only by a written agreement
of the parties that identifies itself as an amendment to this Agreement. Section 4.06 cannot
be waived. No waiver shall be effective unless it is in writing and signed by an
authorized representative of the waiving party. No consideration shall be
offered or paid to any Investor to amend or consent to a waiver or modification
of any provision of the Private Placement Documents, or to exercise any consent
right hereunder, unless the same consideration also is offered to all of the
Investors pro rata to their agreed-upon investment in Purchased Shares provided
herein; provided, however, that CapGen may be reimbursed for any expense
(including legal fees and charges) it incurs in connection with any such
amendment, waiver or consent.


    
      
         


      

      
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    Section
9.10          Severability. If any
provision of this Agreement is determined to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall remain in full
force, as long as both the economic and legal substance of the transactions that
this Agreement contemplates are not affected in any manner materially adverse to
any party.

     

    Section
9.11          Captions. The
descriptive headings of the Articles, Sections and subsections and the table of
contents of this Agreement are for convenience of reference only, do not
constitute a part of this Agreement, and do not affect this Agreement’s
construction or interpretation.

     

    Section
9.12          No Waiver; Cumulative
Remedies. No failure or delay on the part of any party to this Agreement
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.

     

    Section
9.13          Further Assurances.
From and after the date of this Agreement, upon the request of the Investor, on
the one hand, or the Company and the Bank, on the other, the Investor or the
Company and the Bank, as applicable, shall execute and deliver such other
instruments, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.

     

    Section
9.14          No Construction Against
Drafter. Each party has participated in negotiating and drafting this
Agreement, so if an ambiguity or a question of intent or interpretation arises,
this Agreement is to be construed as if the parties had drafted it jointly, as
opposed to being construed against a party because it was responsible for
drafting one or more provisions of this Agreement. 

     

    Section
9.15          Entire Agreement.
This Agreement, including the schedules hereto and the Registration Rights
Agreement, constitutes the final agreement between the parties. It is the
complete and exclusive expression of the parties’ agreement on the matters
contained in this Agreement. All prior and contemporaneous negotiations and
agreements between the parties on the matters contained in this Agreement are
expressly merged into and superseded by this Agreement. The provisions of this
Agreement may not be explained, supplemented or qualified through evidence of
trade usage or a prior course of dealings. In entering into this Agreement,
neither party has relied upon any statement, representation, warranty or
agreement of the other party except for those expressly contained in this
Agreement. There are no conditions precedent to the effectiveness of this
Agreement, other than those expressly stated in this Agreement.

     

    Section
9.16          Counterparts. The
parties may execute this Agreement in multiple counterparts, each of which
constitutes an original, and all of which, collectively, constitute only one and
the same agreement. The signatures of all of the parties need not appear on the
same counterpart, and delivery of an executed counterpart signature page by
facsimile shall have the same force and effect as a manually executed original.
This Agreement is effective upon delivery of one executed counterpart from each
party to the other parties. 


    
      
         


      

      
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    Section
9.17          Independent Nature of
Investors’ Obligations and Rights. The obligations of each Investor under
the Private Placement Documents are several and not joint with the obligations
of any other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under any Private Placement
Document. Nothing contained herein or in any other Private Placement Document,
and no action taken by any Investor pursuant hereto or thereto, shall be deemed
to constitute the Investors as, and the Company acknowledges that the Investors
do not so constitute, a partnership, an association, a joint venture or any
other kind of group or entity, or create a presumption that the Investors are in
any way acting in concert or as a group or entity with respect to such
obligations or the transactions contemplated by the Private Placement Documents
or any matters, and the Company acknowledges that the Investors are not acting
in concert or as a group, and the Company shall not assert any such claim, with
respect to such obligations or the transactions contemplated by the Private
Placement Documents. The decision of each Investor to purchase Securities
pursuant to the Private Placement Documents has been made by such Investor
independently of any other Investor. Each Investor acknowledges that no other
Investor has acted as agent or fiduciary for or representative of such Investor
in connection with such Investor making its investment hereunder and that no
other Investor will be acting as agent or fiduciary for or representative of
such Investor in connection with monitoring such Investor's investment in the
Securities or enforcing its rights under the Private Placement Documents. The
Company and each Investor confirms that each Investor has independently
participated with the Company in the negotiation of the transaction contemplated
hereby with the advice of its own counsel and advisors. Each Investor shall be
entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of any other Private
Placement Documents, and it shall not be necessary for any other Investor to be
joined as an additional party in any proceeding for such purpose. The use of a
single agreement to effectuate the purchase and sale of the Securities
contemplated hereby is solely for convenience. It is expressly understood and
agreed that each provision contained in this Agreement and in each other Private
Placement Document is between the Company and a Investor, solely, and not
between the Company and the Investors collectively and not between and among the
Investors.

     

    [SIGNATURE
PAGE FOLLOWS]


    
      
         


      

      
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      The
parties have caused this Agreement to be executed as of the date first above
written by their respective duly authorized officials.

       

      
        
          	 
      	
                  JACKSONVILLE
      BANCORP, INC.

                
	 
      	 
      	 
      
	 
      	
                  By: 

                	
                  /s/ Gilbert J. Pomar

                
	 
      	 
      	
                  Name:
      Gilbert J. Pomar

                
	 
      	 
      	
                  Title:
      President

                


        

      

       

      
        
          
            	
                    Subscription
      Amount:

                  	INVESTOR
	
                    Number
      of Purchased Shares:

                  	 
      
	 
      	
                    By: 

                  	
                      

                  
	 
      	 
      	
                    Name:
      

                  
	 
      	 
      	
                    Title: