Exhibit 10.4
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STOCK PURCHASE AGREEMENT
This Agreement ("Agreement") is made as of May 28, 1998 by and among
PrivateBancorp, Inc., a Delaware corporation (the "Seller"), FBO Xxxxx X.
Xxxxxxx XXX, Delaware Charter Guarantee and Trust Co., Trustee, account number
044-56840-1-2 (the "Account"), and The Xxxxx X. Xxxxxxx Revocable Trust UTA
dated 6/5/97 (the "Purchaser").
WHEREAS, Seller desires to sell, and the Account and Purchaser together
desire to purchase, four thousand five hundred forty-five (4,545) shares of the
Common Stock of PrivateBancorp, Inc., a Delaware corporation (the "Company");
NOW THEREFORE, the parties hereto agree as follows:
Section 1. Purchase.
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1.1 Pursuant to the terms and conditions of this Agreement, Seller
hereby agrees to sell to the Account and the Purchaser, and the Account and the
Purchaser hereby agrees to purchase from Seller, four thousand five hundred
forty-five (4,545) shares (the "Shares") of Common Stock, without par value, of
the Company.
1.2 The purchase price for the Shares to be paid by the Purchaser
to the Seller at the Closing, as provided in Section 1.3 hereof, shall be
$220.00 per Share for a total purchase price of $999,900.00 (the "Purchase
Price").
1.3 The Purchase Price shall be paid by delivery to Seller at
Closing of (a) cash in the amount of $50,160.00 from the Account, and (b) a
Secured Promissory Note (the "Note") from the Purchaser in the form of Exhibit A
attached hereto, in the amount of $949,740.00, with interest accruing at 5.69
percent, compounded annually, payable in the manner set forth in the Note.
Section 2. Closing.
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2.1 The Closing shall take place, subject to the conditions set
forth in Section 2.2 hereof at 5:00 P.M. on May 28, 1998, at the offices of the
Company. The date and time of Closing are herein referred to as the "Closing
Date".
2.2 The obligation of the Seller to sell the Shares, and the
obligation of the Account and Purchaser to purchase the Shares, is subject to
the conditions set forth below being complied with to the satisfaction of, or
waived by, the Seller, the Account or the Purchaser, as the case may be, on or
before the Closing Date.
2.2.1 Delivery of Stock Certificates. The Seller shall issue
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and deliver, from the corporate treasury or otherwise, to the Account one
or more stock certificates evidencing two hundred twenty-eight (228)
Shares, duly registered to the Account. In the same manner,
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the Seller shall deliver to Purchaser one or more stock certificates
evidencing four thousand three hundred seventeen (4,317) Shares, duly
registered to Purchaser.
2.2.2 Delivery of Purchase Price. The Seller shall have
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received cash from the Account and the executed Note from the Purchaser,
together representing the entire Purchase Price.
2.2.3 Delivery of Pledge Agreement. The Pledge Agreement, a
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form of which is attached hereto as Exhibit B, has been fully executed and
delivered to Seller.
2.2.4 Seller's Representations and Warranties. The
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representations and warranties of Seller contained in this Agreement shall
be true and correct as of the Closing Date.
2.2.5 Purchaser's and Account's Representations and
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Warranties. The representations and warranties of Purchaser and of the
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Account contained in this Agreement shall be true and correct as of the
Closing Date.
Section 3. Seller's Representations and Warranties. Seller represents and
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warrants to the Purchaser and the Account that:
3.1 Organization, Etc. It is a corporation duly incorporated,
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validly existing and in good standing under the laws of Delaware and has all
requisite corporate power and authority to enter into and perform its
obligations under this Agreement.
3.2 Authorization. This Agreement has been duly authorized,
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executed and delivered by the Seller.
3.3 No Violation. The execution, delivery or performance by the
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Seller of this Agreement does not contravene any law, regulation, order or
judgment applicable to or binding on the Seller or any provision of the charter
or by-laws of the Seller, and will not result in a breach of, or constitute a
default under, or contravene any provisions of, any agreement to which the
Seller is a party or by which he is bound.
3.4 No Consents or Approvals. Neither the execution, delivery or
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performance by the Seller of this Agreement requires the consent or approval of,
the giving of notice to, the registration with, the recording or filing of any
documents with, or the taking of any other action in respect of, any Federal,
state or local governmental commission, authority, agency or body.
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Section 4. Purchaser's and Account's Representation and Warranties.
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Purchaser and the Account represent and warrant to the Seller that:
4.1 No Violation. The execution, delivery or performance of this
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Agreement by the Purchaser or by the Account does not contravene any law,
regulation, order or judgment applicable to or binding on the Purchaser or the
Account and will not result in a breach of, or constitute a default under, or
contravene any provision of, any agreement to which the Purchaser or the Account
is a party or by which it is bound.
4.2 No Consents or Approvals. Neither the execution, delivery or
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performance of this Agreement by the Purchaser nor by the Account requires the
consent or approval of, the giving of notice to, the registration with, the
recording or filing of any documents with, or the taking of any other action in
respect of, any Federal, state or local governmental commission, authority,
agency or body.
4.3 Securities Laws. The Purchaser and the Account acknowledge and
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agree that the Shares have not been registered under the Securities Act of 1933,
as amended (the "Securities Act"), and applicable state securities laws, and
that the transfer of the Shares may be effected only pursuant to an effective
registration under the Securities Act and applicable state securities laws or an
exemption therefor. The Purchaser and the Account are acquiring the Shares for
their own accounts for the purpose of investment only and not with a present
intention to transfer, hypothecate, resell or otherwise distribute such Shares
within the meaning of the Securities Act and applicable state securities laws.
Section 5. Further Assurances.
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5.1 By Seller. Seller will do, execute, acknowledge and deliver, or
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shall cause to be done, executed, acknowledged and delivered all such further
acts, conveyances and assurances the Purchaser or the Account may reasonably
require for accomplishment of the purposes of this Agreement.
5.2 By Purchaser. The Purchaser and the Account will do, execute,
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acknowledge and deliver, or shall cause to be done, executed, acknowledged and
delivered, all such further acts, conveyances and assurances as Seller may
reasonably require for accomplishment of the purposes of this Agreement.
Section 6. Miscellaneous.
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6.1 Counterparts. This Agreement may be executed by the parties
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hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
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6.2 Amendment. Neither this Agreement nor any of the terms hereof
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may be terminated, amended, supplemented, waived or modified orally, but only by
an instrument in writing which purports to terminate, amend, supplement, waive
or modify this Agreement or any of the terms hereof and is signed by the party
against which the enforcement of the termination, amendment, supplement, waiver
or modification is sought.
6.3 Successors and Assigns. The terms of this Agreement shall be
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binding on, and inure to the benefit of, the parties hereto and their respective
successors and assigns.
6.4 Governing Law. This Agreement, including all matters of
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construction, validity and performance, shall in all respects be governed by,
and construed in accordance with, the laws of the State of Illinois.
6.5 Notices. Except as otherwise provided in this Agreement, all
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notices hereunder shall be in writing and shall be given by mail, personal
delivery, overnight courier, telecopy or any other customary means of written
communication at the addresses set forth on the signature pages hereof, or at
such other addresses as may be specified by written notice to the parties
hereto, and shall become effective when received by the addressees.
6.6 Severability of Provisions. Any provision of this Agreement
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which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
6.7 Headings. The headings used herein are for convenience of
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reference only and shall not define or limit any of the terms or provisions
hereof.
6.8 Entire Agreement. This Agreement embodies the entire agreement
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and understanding between the parties hereto and supersedes all prior agreements
and understandings between the parties hereto relating to the subject matter
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date and year first above written.
SELLER PURCHASER
PrivateBancorp, Inc., The Xxxxx X. Xxxxxxx Revocable Trust
a Delaware corporation UTA dated 6/5/97
By:________________________ By:__________________________________
Its:_______________________ Its:_________________________________
By:________________________ ADDRESS:
Its:_______________________ The Xxxxx X. Xxxxxxx Revocable Trust
UTA dated 6/5/97
c/o Xxxxx X. Xxxxxxx
ADDRESS: PrivateBancorp, Inc.
Ten North Dearborn, Suite 900
PrivateBancorp, Inc. Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx,
Chief Financial Officer
Ten North Dearborn, Suite 900 ACCOUNT
Xxxxxxx, XX 00000
FBO Xxxxx X. Xxxxxxx XXX, account
number 044-56840-1-2
By: Delaware Charter Guarantee and
Trust Co., Trustee
By:__________________________________
Its:_________________________________
ADDRESS:
FBO Xxxxx X. Xxxxxxx XXX, Delaware
Charter Guarantee and Trust Co.,
Trustee, account number 044-56840-1-2
c/o Xxxxx X. Xxxxxxx
PrivateBancorp, Inc.
Xxx Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
EXHIBIT A
Amount: $949,740
Date: May 28, 1998
Due: May 28, 2003
SECURED PROMISSORY NOTE
For value received, The Xxxxx X. Xxxxxxx Revocable Trust UTA dated 6/5/97
(the "Borrower") promises to pay to the order of PrivateBancorp, Inc. (the
"Company") the principal amount of Nine Hundred Forty-Nine Thousand Seven
Hundred Forty Dollars ($949,740) with interest of 5.69 percent per annum,
compounded annually (the "Interest"), on the principal amount of this Secured
Promissory Note (the "Note") from time to time outstanding, payable on May 28,
2003 or the earlier of (a) the sale of any of the four thousand five hundred
forty-five (4,545) shares of Common Stock of PrivateBancorp, Inc. pledged by the
Borrower under the Pledge Agreement dated this date by and between the Borrower
and the Company (the "Pledge Agreement"), or (b) the termination of Xxxxx X.
Xxxxxxx'x employment with the Company. The Interest shall be forgiven by the
Company in the following percentages at the following times: (a) the first 25%
of the accumulated interest on this Note on May 28, 2000; (b) the second 25% of
the accumulated interest on this Note on May 28, 2001; (c) the third 25% of the
accumulated interest on this Note on May 28, 2002; and (d) the balance of the
accumulated interest on this Note on May 28, 2003. For the purposes hereof,
accumulated interest assumes the total interest accrued given that the Note is
not prepaid before May 28, 2003. Unless otherwise specified, all terms not
defined herein shall have the meanings given to them in the Stock Purchase
Agreement dated this date by and among the Seller, the Account and the Borrower.
This Note is secured by, issued pursuant to, and entitled to the benefits
of, the Pledge Agreement, to which agreement reference should be made for a more
complete statement of the terms and conditions under which the loan evidenced
hereby is made, as to the nature and extent of the security ("Collateral") for
this Note, the rights of the Company, and any holder of this Note with respect
to the Collateral and the acceleration of the maturity of this Note.
The Company, and any subsequent holder of this Note, by acceptance of this
Note agrees that the Borrower has and shall have personal liability and
obligation with respect to payment of this Note or other Indebtedness (as
defined in the Pledge Agreement).
The rights of the holders hereof shall be governed by Illinois law.
This Note may be prepaid at any time without penalty. All payments on this
Note shall first be applied to accrued and unpaid interest and then to
principal.
THE XXXXX X. XXXXXXX REVOCABLE TRUST
UTA DATED 6/5/97
By:__________________________________
Its:_________________________________
EXHIBIT B
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is entered into as of this 28th day of May, 1998 by
and between The Xxxxx X. Xxxxxxx Revocable Trust UTA dated 6/5/97 ("Pledgor")
and PrivateBancorp, Inc., a Delaware corporation (the "Company").
NOW, THEREFORE, in consideration of the terms and conditions mentioned
herein, the parties hereto agree to as follows:
1. GRANT OF SECURITY INTEREST IN SHARES. As security for the repayment
of the Secured Promissory Note dated May 28, 1998 in the amount of $949,740 (the
"Note") of Pledgor to the Company, and any and all costs and expenses, including
reasonable attorneys fees incurred to collect the Note and interest
(collectively, the "Indebtedness"), Pledgor hereby grants to the Company a lien
on and security interest in, and acknowledges and agrees that the Company has
and shall continue to have a continuing lien on and security interest in, all
right, title and interest of Pledgor to the following: (a) four thousand five
hundred forty-five (4,545) shares of stock in the Company, owned by Pledgor,
which are being delivered to the Company with executed stock power attached,
receipt for which is hereby acknowledged, and all substitutions and additions to
such shares (herein, the "Pledged Securities"), (b) all dividends, distributions
and sums distributable to or payable from, upon or in respect of the Pledged
Securities, (c) all other rights and privileges incident to the Pledged
Securities, and (d) all proceeds of the foregoing (all of the foregoing being
hereinafter referred to collectively as the "Collateral"). Said Pledged
Securities will be returned to Pledgor in their entirety upon full payment of
the Note.
2. COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES. Pledgor hereby
covenants and agrees with, and represents and warrants to, the Company that:
a. The certificates for all shares of the Pledged Securities shall
be delivered by Pledgor to the Company duly endorsed in blank for transfer or
accompanied by an appropriate assignment or an appropriate undated stock power
or powers, sufficient to transfer title thereto. The Company may at any time
after the occurrence of an Event of Default cause to be transferred into its
name or into the name of its nominee any and all of the Pledged Securities. The
Company shall at times have the right to exchange certificates representing the
Pledged Securities for certificates of smaller or larger denomination.
b. Pledgor is and shall be the sole and lawful legal, record and
beneficial owner of the Collateral. Pledgor shall not, without the Company's
prior written consent, sell, assign, or otherwise dispose of the Collateral or
any interest therein. The Collateral, and every part thereof, is and shall be
free and clear of all security interests, liens, rights, claims, attachments,
levies and encumbrances of every kind, nature and description and whether
voluntary or involuntary, except for the security interest of the Company
hereunder. Pledgor shall warrant and defend the Collateral
against any claims and demands of all persons at any time claiming the same or
any interest in the Collateral adverse to the Company.
3. VOTING RIGHTS AND DIVIDENDS. Unless and until an Event of Default
hereunder has occurred and thereafter until notified by the Company pursuant to
Section 4(b) hereof:
a. Pledgor shall be entitled to exercise all voting and/or
consensual powers pertaining to the Collateral, or any part thereof, for all
purposes not inconsistent with the terms of the Agreement.
b. Pledgor, as owner of the Pledged Securities, shall be entitled to
all dividends and distributions, provided no Event of Default has occurred and
is continuing.
4. DEFAULTS AND REMEDIES.
a. The failure to pay the principal and interest under the Note when
due under the terms of the Note, including the sale of any of the four thousand
five hundred forty-five (4,545) shares of Common Stock of PrivateBancorp, Inc.
pledged by Pledgor pursuant to this Agreement, or the termination of Xxxxx X.
Xxxxxxx'x employment with the Company; or the breach of any representation,
warranty or other covenant of Pledgor hereunder shall constitute an Event of
Default.
b. Upon the occurrence of any Event of Default, all outstanding
principal and accrued but unpaid interest under the Note, other than any
interest forgiven pursuant to the Note, shall immediately become due and
payable.
c. Upon the occurrence of any Event of Default, all rights of
Pledgor to exercise the voting and/or consensual powers which he is entitled to
exercise pursuant to Section 3(a) hereof shall, at the option of the Company
cease and thereupon become vested in the Company which, in addition to all other
rights provided herein or by law, shall then be entitled solely and exclusively
to exercise all voting and other consensual powers pertaining to the Collateral
and to exercise any and all rights of conversion, exchange or subscription and
any other rights, privileges or options pertaining thereto as if the Company
were absolute owner thereof.
d. Upon the occurrence of any Event of Default, the Company shall
have, in addition to all other rights provided herein or by law, the rights and
remedies of a secured party under the UCC, and further, the Company may, without
demand and without advertisement, notice, hearing or process of law to the
extent permitted by law, all of which Pledgor waives to the extent permitted by
law, at any time or times, sell and deliver any or all of the Collateral held by
or for it at public or private sale, at the Company's offices or elsewhere, for
cash, upon credit or otherwise, at such prices and upon such terms as the
Company deem advisable, in its sole discretion. In the exercise of any such
remedies, the Company may sell the Collateral as a unit even though the sales
price thereof may be in excess of the amount remaining unpaid on the Note. The
Company is authorized at any sale or
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other disposition of the Collateral, if it deems it advisable so to do, to
restrict the prospective bidders or purchasers to persons who will represent and
agree that they are purchasing for their own accord for investment, and not with
a view to the distribution or resale of any of the Collateral. Pledgor shall pay
the Company all costs and expenses incurred by the Company, including reasonable
attorneys' fees and court costs, in obtaining, liquidating or enforcing payment
of Collateral or the Note or in the prosecution or defense of any action or
proceeding by or against the Company, such concerning any matter arising out of
or connected with this Agreement or the Collateral or the Notes including,
without limitation, any of the foregoing arising in, arising under or related to
a case under the United States Bankruptcy Code (or any successor statute).
e. The proceeds of the Collateral at any time received by the
Company during the existence of any Event of Default shall, when received by the
Company in cash or its equivalent, be applied by the Company in reduction of, or
as collateral security for, the Note. Any surplus remaining after the full
payment and satisfaction of the Note shall be returned to Pledgor.
5. MISCELLANEOUS.
a. Entire Agreement. This Agreement, and the documents referred to
herein constitute the entire agreement among the parties pertaining to the
subject matter hereof, and supersede all prior and contemporaneous agreements,
understandings, negotiations, and discussions, whether oral or written.
b. Governing Law. This Agreement shall be construed and interpreted
according to the laws of the State of Illinois.
c. Further Assurances. Pledgor agrees to execute and deliver to the
Company such further agreements, assignments, instruments and documents and to
do all such other things as the Company may deem necessary or appropriate to
assure the Company its lien and security interest hereunder, including such
assignments, stock powers, financing statements, instruments and documents as
the Company may from time to time require in order to comply with the Uniform
Commercial Code as enacted in the State of Illinois and any successor statute(s)
thereto (the "UCC").
d. Notices. Any notices given in connection with this Agreement
shall be in writing and either personally delivered or mailed to the last known
address of the recipient using certified mail, return receipt requested. Until
further notice, notice by mail shall be addressed as follows:
If to Pledgor: Xxxxx X. Xxxxxxx
c/o PrivateBancorp, Inc.
Xxx Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
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If to the Company: PrivateBancorp, Inc.
Xxx Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx,
Chief Financial Officer
e. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not constitute part hereof.
f. Severability. If any provision herein is held invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day, month and year first written.
THE XXXXX X. XXXXXXX REVOCABLE TRUST PRIVATEBANCORP, INC.
UTA DATED 6/5/97
By:_________________________________ By:__________________________
Title:______________________________ Title:_______________________
By:__________________________
Title:_______________________
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