AGREEMENT TO PURCHASE SUBORDINATED NOTES

Exhibit 10.4

AGREEMENT TO PURCHASE SUBORDINATED NOTES

     THIS AGREEMENT TO PURCHASE SUBORDINATED NOTES (this “ Agreement ”) is made as of the 17th day of September, 2008, by and among Superior Bank (the “ Company ”), a federal savings bank, Superior Bancorp, a Delaware corporation (the “Parent”), each with its principal offices at 17 North 20 ^th Street, Birmingham, Alabama 35203, and the purchaser whose name and address is set forth on the signature page hereof (the “ Purchaser ”).

     IN CONSIDERATION of the mutual covenants contained in this Agreement, the Company and the Purchaser agree as follows:

          SECTION 1. Authorization of Sale of Subordinated Notes . Subject to the terms and conditions of this Agreement, the Company has authorized the issuance and sale of up to $20,000,000 in aggregate principal amount of its 9.5% Subordinated Notes due September 15, 2018 (the “ Subordinated Notes ”).

          SECTION 2. Agreement to Sell and Purchase the Subordinated Notes . At the Closing (as defined in Section 3 hereof), the Company will, subject to the terms and conditions of this Agreement, issue and sell to the Purchaser, and the Purchaser will buy from the Company, upon the terms and conditions hereinafter set forth, the aggregate principal amount of Subordinated Note(s) (at the purchase price) set forth directly below:

      Aggregate Principal Amount of Subordinated Note(s) to be Purchased : $10,000,000

     The Company may enter into this same form of purchase agreement with certain other investors (the “ Other Purchasers ”) and, if so, expects to complete sales of the Subordinated Notes

to them. The Purchaser and the Other Purchasers are hereinafter sometimes collectively referred to as the “ Purchasers ”, and this Agreement and the purchase agreements executed by the Other Purchasers are hereinafter sometimes collectively referred to as the “ Agreements ”.

          SECTION 3. Delivery of the Subordinated Note at the Closing . The completion of the purchase and sale of Subordinated Note(s) to the Purchaser (the “ Closing ”) shall occur at the offices of Haskell Slaughter Young & Rediker, LLC, 2001 Park Place North, 1400 Park Place Tower, Birmingham, Alabama, 35203, within five business days following the execution of this Agreement, or on such later date or at such different location as the parties hereto shall agree in writing, but not prior to the date that the conditions for Closing set forth below have been satisfied or waived by the appropriate party (the “ Closing Date ”).

     At the Closing, the Purchaser shall deliver, in immediately available funds, the full amount of the purchase price for the Subordinated Note being purchased hereunder by wire transfer to an account designated by the Company, and the Company shall deliver to the Purchaser one [or more] Subordinated Note(s) registered in the name of the Purchaser in the aggregate principal amount set forth in Section 2 hereof. The Subordinated Notes set forth the terms, conditions and restrictions governing the payment and any pre-payment of interest and principal as well as other terms, conditions and restrictions in connection therewith. The name(s) in which the Subordinated Notes are to be registered are set forth in the Subordinated Note Questionnaire attached hereto as part of Appendix I .

     The Company’s obligation to complete the sale and delivery of the Subordinated Notes and deliver such Subordinated Note(s) to the Purchaser at the Closing shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by

the Company of same-day funds in the full amount of the purchase price for the Subordinated Notes being purchased hereunder; (b) the accuracy of the representations and warranties made by the Purchaser and the fulfillment of those undertakings of the Purchaser to be fulfilled prior to the Closing; and (c) approval by the Office of Thrift Supervision (“ OTS ”) to include the proceeds of the Subordinated Notes in the Company’s supplementary capital.

     The Purchaser’s obligation to pay for the Subordinated Notes and to accept delivery of such Subordinated Note(s) evidenced thereby shall be subject to the following conditions: (a) each of the representations and warranties of the Company and the Parent made herein shall be accurate as of the Closing Date; (b) the delivery to the Purchaser by counsel to the Company and the Parent of a legal opinion in a form reasonably satisfactory to counsel for the Purchaser; (c) receipt by the Purchaser of a certificate executed by the chief executive officer and the chief financial or accounting officer of, respectively, the Company and the Parent, dated as of the Closing Date, to the effect that the representations and warranties of the Company and the Parent set forth herein are true and correct as of the date of this Agreement and as of such Closing Date and that the Company and the Parent, each, has complied with all the agreements and satisfied all the conditions herein on its part to be performed or satisfied on or prior to such Closing Date; (d) the fulfillment in all material respects of those undertakings of the Company to be fulfilled prior to the Closing; and (e) the delivery to the Purchaser of warrants in the form of Exhibit B hereto (the “Warrants”) to purchase 1,000,000 shares of the Parent’s common stock, par value $.001 (the “Common Stock”) (the Subordinated Notes, Warrants, and Common Stock being sometimes collectively referred to herein as the “Securities”) on the terms and conditions set forth in Section 9. The Purchaser’s obligations hereunder are expressly not conditioned on the

purchase by any or all of Other Purchasers, if any, of the Subordinated Notes that they have agreed to purchase from the Company.

          SECTION 4. Representations, Warranties and Covenants of the Company and the Parent. The Company and the Parent each respectively hereby, with respect to itself, represents and warrants to, and covenants with, the Purchaser as follows:

          4.1 Organization and Qualification . The Company is a federal savings bank, validly existing and in good standing under the laws of the United States and the Parent is a corporation validly existing and in good standing under the laws of the State of Delaware and each is qualified to do business as a foreign corporation in each jurisdiction in which qualification is required, except where failure to so qualify would not have a Material Adverse Effect. For the purposes of this Agreement, the term “ Material Adverse Effect ” shall mean a material adverse effect on the business, financial condition or results of operations of the Parent or the Company respectively and its Subsidiaries, taken as a whole; provided, that a “Material Adverse Effect” shall not be deemed to include any effects to the extent resulting from (i) changes in accounting principles generally accepted in the United States or regulatory accounting requirements applicable to banks or their holding companies generally, (ii) changes in laws, rules or regulations of general applicability or interpretations thereof, (iii) changes in general economic or market conditions in the United States or in the regions in which the Parent or the Company, respectively, and/or its Subsidiaries operate or conduct business or general changes in the industries in which the Parent or the Company, respectively, and/or its Subsidiaries participate, (iv) the announcement or disclosure of the sale of the Securities or other transactions contemplated by this Agreement or (v) effects caused by any event, occurrence or condition resulting from or relating to the taking of any action in accordance with this Agreement.

          4.2 Bank Regulatory Authorities . The Company holds the requisite authority from the OTS to do business as a federal savings bank under the laws of the United States and to enter into and perform this Agreement. The Parent holds the requisite authority to enter into and perform this Agreement. The Parent and the Company each is in compliance in all material respects with all laws administered by the OTS and the Federal Deposit Insurance Corporation (the “ FDIC ”) (together, the “ Bank Regulatory Authorities ”) with jurisdiction over either the Parent or the Company respectively and the subsidiaries of each, except for failures to be so in compliance that would not, individually or in the aggregate, have a Material Adverse Effect.

          4.3 Issuance, Sale and Delivery of the Subordinated Notes . The Subordinated Notes have been duly authorized and, when issued, delivered and paid for in the manner set forth in this Agreement, will be valid and enforceable against the Company, and will conform in all material respects to the description thereof set forth herein. No further approval or authority of the Board of Directors of the Company will be required for the issuance and sale of the Subordinated Notes to be sold by the Company as contemplated herein.

          4.4 Issuance, Sale and Delivery of the Warrants and the Common Stock . The Warrants and the Common Stock have been duly authorized and when issued, delivered and (in the case of the Common Stock) paid for in the manner set forth in this Agreement, or the Exhibits incorporated herein, will be valid and enforceable against the Parent and will conform in all material respects to the description set forth herein. No further approval or authority of the Board of Directors of the Parent will be required for the issuance and (in the case of the Common Stock) sale of the Warrants and Common Stock, as contemplated herein.

          4.5 Due Execution, Delivery and Performance of the Agreements . The Parent and the Company each has full legal right, corporate power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and the Parent. This Agreement constitutes a legal, valid and binding agreement of the Company and the Parent, enforceable against the Company and the Parent in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and the application of equitable principles relating to the availability of remedies, and subject to 12 U.S.C. §§1818(b)(6)(D), 1828(b) and 1831o(h) (or any successor statutes) and similar thrift regulatory powers and to the application of principles of public policy, and except as rights to indemnity or contribution, including but not limited to, indemnification provisions set forth in Section 7.3 of this Agreement may be limited by federal or state securities law or the public policy underlying such laws.

          4.6 Accountants . Each of Carr Riggs and Ingram, LLC and Grant Thornton, LLP, who have expressed their opinions with respect to the consolidated financial statements contained in the Annual Report on Form 10-K of the Parent for the year ended December 31, 2007, which is incorporated by reference into the Disclosure Materials, are registered independent public accountants as required by the Securities Act of 1933 (the “ Securities Act ”) and the rules and regulations promulgated thereunder (the “ 1933 Act Rules and Regulations ”) and by the rules of the Public Accounting Oversight Board.

          4.7 No Defaults or Consents . The execution and performance of this Agreement by the Company and the Parent and the consummation of the transactions herein

contemplated will not (i) violate any provision of the Charter or bylaws of the Company or the Parent, and (ii) except as would not reasonably be expected to result in a Material Adverse Effect, will not (x) result in the creation of any lien, charge, security interest or encumbrance upon any assets of the Company or the Parent pursuant to the terms or provisions of, and will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under, or give rise to the accelerated due date of any payment due under, any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which the Company or the Parent is a party or by which the Company or the Parent or, respectively, its properties may be bound or affected or (y) violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental agency or body applicable to the Company or the Parent or, respectively, any of its properties. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental agency or body is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement, except for the approval by the OTS to include the proceeds of the Subordinated Notes in the Company’s supplementary capital.

          4.8 Contracts . The material contracts to which the Parent or the Company is a party have been duly and validly authorized, executed and delivered by the Parent or the Company, as the case may be, and constitute the legal, valid and binding agreements of the Parent or the Company, as the case may be, enforceable by and against it in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to enforcement of creditors’ rights

generally, and general equitable principles relating to the availability of remedies, and subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar thrift regulatory powers and to the application of principles of public policy, and except as rights to indemnity or contribution may be limited by federal or state securities laws and the public policy underlying such laws.

          4.9 Deposit Accounts . The deposit accounts of the Company are insured up to the maximum amount provided by the FDIC and no proceedings for the modification, termination or revocation of any such insurance are pending or threatened.

          4.10 No Actions . Except as disclosed in the Disclosure Materials, there are no legal or governmental actions, suits or proceedings pending or, to the Company’s or the Parent’s knowledge, threatened against the Company or the Parent before or by any court, regulatory body or administrative agency or any other governmental agency or body, domestic, or foreign, which actions, suits or proceedings, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; and no labor disturbance by the employees of the Company or the Parent exists or, to the knowledge of the Company or the Parent, is imminent, that would reasonably be expected to have a Material Adverse Effect.

          4.11 No Restrictions on the Company . As of the date hereof, neither the Company nor the Parent is prohibited, directly or indirectly, under any order of the OTS, or any agreement or other instrument to which it is a party or is subject, from paying any dividends, from making any other distribution on the Company’s or the Parent’s capital stock, from repaying any loans or advances or from transferring any of the Company’s or the Parent’s properties or assets, provided, that,

          (a) the Company is prohibited from paying any dividends or interest on the Subordinated Notes (if such interest is required to be paid only out of net profits) or distributing any capital assets if it is in default in the payment of any assessment due to the FDIC, provided further, that if such default is due to a dispute between the Company and the FDIC over the amount of such assessment, such prohibition on the payment of dividends and interest shall not apply if the Company deposits security satisfactory to the FDIC for payment upon final determination of the issue; and

     (b) if the Company becomes critically undercapitalized, then it is prohibited, beginning 60 days after becoming critically undercapitalized, from making any payment of principal or interest on the Subordinated Notes, provided, further that, if the FDIC has taken action with respect to such undercapitalization and determines that the payment of principal and interest would further the purpose of 12 U.S.C. 1831o(h), then such payment may be permitted.

          4.12 Properties . The Company or the Parent, as the case may be, has valid title to all the properties and assets described as owned by it in the consolidated financial statements included in the Disclosure Materials, free and clear of all liens, mortgages, pledges, or encumbrances of any kind except (i) those, if any, reflected in such consolidated financial statements, or (ii) those that would not reasonably be expected to have a Material Adverse Effect. The Company or the Parent hold its material leased properties under valid and binding leases. The Company or the Parent own or lease all such material properties as are necessary to its operations as now conducted.

          4.13 No Material Adverse Change . Except as disclosed in the Disclosure Materials, since December 31, 2007, (i) the Company and the Parent have conducted their respective businesses in all material respects in the ordinary course, consistent with prior practice, (ii) neither the Company nor the Parent has incurred any liabilities or obligations of any nature (absolute, accrued, contingent or otherwise) which are not fully reflected or reserved against in the financial statements described in Section 4.18, except for liabilities that have arisen since such date in the ordinary and usual course of business and consistent with past practice and that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect and (iii) no event or events have occurred that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.

          4.14 Intellectual Property . The Company or the Parent, as the case may be, owns, is licensed or otherwise possesses all rights to use, all patents, patent rights, inventions, know-how (including trade secrets and other unpatented or unpatentable or confidential information, systems, or procedures), trademarks, service marks, trade names, copyrights and other intellectual property rights (collectively, the “ Intellectual Property ”) necessary for the conduct of its business as described in the Disclosure Materials, except as would not reasonably be expected to have a Material Adverse Effect. No claims have been asserted against the Company or the Parent by any person with respect to the use of any such Intellectual Property or challenging or questioning the validity or effectiveness of any such Intellectual Property except as would not reasonably be expected to have a Material Adverse Effect.

          4.15 Compliance . Neither the Company nor the Parent has been advised, nor does either of them have any reason to believe, that it is not conducting business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting

business, including, without limitation, all applicable local, state and federal environmental laws and regulations, except where failure to be so in compliance would not have a Material Adverse Effect.

          4.16 Taxes . The Company and the Parent have filed on a timely basis (giving effect to extensions) all required federal, state and foreign income and franchise tax returns and has paid or accrued all taxes shown as due thereon, and neither the Company nor the Parent has knowledge of a tax deficiency that has been or might be asserted or threatened against it, in each case, that could have a Material Adverse Effect except that the Alabama Department of Revenue has issued a Notice of Preliminary Assessment of Corporate Income Tax to a subsidiary of the Parent, TBC Realty Holdings Corporation, for the tax years ended December 31, 2002 and December 31, 2003. Representatives of TBC Realty Holdings Corporation met with representatives of the Alabama Department of Revenue to discuss and challenge the preliminary assessments. The matter is pending with the Alabama Department of Revenue. Final assessments have not been issued by the Alabama Revenue Department on the basis of the preliminary assessments, but, if that were to occur, then TBC Realty Holdings Corporation would have the right to appeal such assessments. All tax liabilities accrued through the date hereof have been adequately provided for on the books of the Parent and the Company.

          4.17 Transfer Taxes . On the Closing Date, any transfer or other taxes (other than income taxes) that are required to be paid in connection with the sale and delivery of the Subordinated Notes to be sold to the Purchaser hereunder will have been, fully paid or provided for by the Company and all laws imposing such taxes will have been fully complied with.

          4.18 Investment Company . The Company is not and, after giving effect to the offering and sale of the Subordinated Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.

          4.19 Offering Materials . The Company has furnished to the Purchaser or otherwise made available a copy of each of the following: (i) the Parent’s Annual Report on Form 10-K for the year ended December 31, 2007, as filed with the Securities and Exchange Commission (the “ SEC ”); (ii) the Parent’s proxy statement for its Annual Meeting of Stockholders, held on April 23, 2008, as filed with the SEC on March 24, 2008, (iii) the Parent’s Quarterly Reports on Form 10-Q for the quarters ended March 31 and June 30, 2008; and (iv) the Parent’s Current Reports on Form 8-K as filed with the SEC since June 30, 2008 pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) (items (i) through (iv) together with other SEC filings incorporated therein and any other information about the Company or the Parent or relating to their prospects that the Company may provide to the Purchaser in connection with the sale of the Subordinated Notes, collectively, the “ Disclosure Materials ”).

          4.20 Insurance . The Company and the Parent, each, maintains insurance underwritten by insurers of recognized financial responsibility, of the types and in the amounts that the Company and the Parent, each, reasonably believes is adequa