PRIVATEBANCORP, INC. Common Stock, without par value STOCK PURCHASE AGREEMENT Dated as of 3:00 p.m. EST, November 26, 2007
EXHIBIT 3
Execution Copy
PRIVATEBANCORP, INC.
Common Stock, without par value
Dated as of 3:00 p.m. EST, November 26, 2007
To Each of the Purchasers Listed in the Attached Schedule of Purchasers:
Ladies and Gentlemen:
The undersigned, PrivateBancorp, Inc., a Delaware corporation (the “Corporation”), hereby
agrees with you as follows:
1. AUTHORIZATION; SALE AND PURCHASE OF SHARES
1.1 Authorization of Shares. The Corporation has duly authorized the issuance and
sale of up to an aggregate of 5,294,327 shares of its Common Stock, no par value (the “Shares”),
and up to an aggregate of 1,428.074 shares of its Series A Junior Nonvoting Preferred Stock (the
“Preferred Stock”).
1.2 Sale and Purchase of Shares and Preferred Stock. Subject to the terms and
conditions herein provided, the Corporation hereby agrees to sell to the several purchasers listed
in the Schedule of Purchasers attached as Schedule I hereto (each, a “Purchaser” and
collectively, including the Institutional Purchaser (as defined below) the “Purchasers”), and each
Purchaser, severally and not jointly, agrees to purchase from the Corporation, at the Closing
provided for in Section 2 hereof, up to that number of Shares and number of shares of Preferred
Stock specified opposite its name in the Schedule of Purchasers. The purchase price for each Share
shall be equal to the price per Share as reflected on the signature pages hereof; provided,
however, that in the case of any Purchaser, such price per Share shall not be less than the
official Nasdaq Consolidated Closing Bid Price as of 1:00 p.m. EST on November 23, 2007 (the “Share
Bid Price”) and the price per each share of Preferred Stock shall not be less than an amount equal
to 1,000 multiplied by the Share Bid Price; provided further, the aggregate purchase price of all
Shares and shares of Preferred Stock to be acquired by the Institutional Purchaser (as defined
below) shall be approximately $100 million. The Institutional Purchaser agrees to purchase, on the
Closing Date, that number of Shares with an aggregate purchase price equal to approximately $59.0
million, and that number of shares of Preferred Stock consistent with the terms, powers,
preferences and other rights as set forth in the Form of Certificate of Designations of such
Preferred Stock attached hereto as Exhibit B (the “Certificate of Designations”), with an aggregate
purchase price equal to $41.0 million. Each Purchaser’s obligations hereunder are several and not
joint obligations, and no Purchaser shall have any liability to any person or entity for the
performance or nonperformance by any other Purchaser hereunder. Each Purchaser other than the
Institutional Purchaser understands and acknowledges that the actual number of Shares sold to each
Purchaser other than the Institutional Purchaser shall be determined by the Corporation and the
Corporation shall have the right to accept or reject in whole or in part such Purchaser’s
subscription to purchase Shares hereunder and/or to limit such Purchaser’s investment hereunder to
a specific dollar amount and/or percentage of the total aggregate number
of Shares to be sold. Each Purchaser also understands and acknowledges that it has made its
own review of the investment merits and risks of the Shares, and with respect to the Institutional
Purchaser the shares of Preferred Stock, is not relying on the Institutional Purchaser and is
acting separately and independently of the Institutional Purchaser in making its investment in the
Shares, and with respect to the Institutional Purchaser the shares of Preferred Stock.
As used in this Agreement, the term “Institutional Purchaser” means collectively, GTCR Fund
IX/A, L.P., a Delaware limited partnership, GTCR Fund IX/B, L.P., a Delaware limited partnership
and GTCR Co-Invest III, L.P., a Delaware limited partnership.
2. THE CLOSING.
2.1 Time and Place of the Closing. Subject to Section 3 hereof, payment of the
purchase price for and delivery of the Shares and the Preferred Stock shall be made at the offices
of Vedder, Price, Xxxxxxx & Kammholz, P.C., or at such other place or in such other manner as may
be agreed upon by the Corporation and the Institutional Purchaser, at 10:00 a.m., Chicago, Illinois
time, on December 11, 2007, or at such other time or date as the Institutional Purchaser and the
Corporation may mutually determine (such date and time of payment and delivery being herein called
the “Closing Date”). Notwithstanding the foregoing, in the event the conditions to the
Institutional Purchaser’s obligations to consummate the Transactions in Section 3.1(c) or Section
3.1(d) have not been satisfied prior to December 11, 2007, then the parties hereto shall work in
good faith with the applicable Governmental Authorities (as defined below) to obtain such
governmental approvals or authorizations and shall use commercially reasonable efforts to modify
the terms of this Agreement and the agreements and exhibits contemplated herein to obtain such
governmental approvals and authorizations; provided that none of such changes shall be inconsistent
with the terms of this Agreement (including without limitation the ability of the Institutional
Purchaser to appoint a director or observer pursuant to Section 5.3 below) without the consent of
the Institutional Purchaser in its sole discretion. In such event, the Institutional Purchaser and
the Corporation shall mutually determine the date and time of the Closing; provided that the
Closing Date shall not be extended beyond January 31, 2008 without the consent of the Institutional
Purchaser.
2.2 Delivery of and Payment for the Shares. At the Closing, the Corporation shall
deliver to each Purchaser certificates evidencing the Shares and, in the case of the Institutional
Purchaser, the shares of Preferred Stock, to be purchased by it (as indicated opposite such
Purchaser’s name on Schedule I hereto), dated the Closing Date and bearing appropriate
legends as hereinafter provided for, and registered on the books and records of the Corporation in
such Purchaser’s name, against payment in full at the Closing of the aggregate purchase price
therefor by wire transfer of immediately available funds for credit to such account as the
Corporation shall direct in writing prior to the Closing Date no later than 9:00 a.m., Chicago,
Illinois time, on the Closing Date.
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3. CONDITIONS TO CLOSING
3.1 Conditions to the Purchasers’ Obligations. The obligations of each Purchaser
hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the
representations and warranties of the Corporation contained herein, and to the performance by
the Corporation of its obligations hereunder and to each of the following additional terms and
conditions:
(a) The Corporation will have furnished to the Purchasers a certificate, dated the Closing
Date, executed on behalf of the Corporation by each of the Chairman of the Board, the Chief
Executive Officer and President, and the Chief Financial Officer of the Corporation, stating that:
(i) The representations, warranties and agreements of the Corporation in Section 4.1
hereof are true and correct as of the Closing Date and the Corporation has complied with all
its agreements contained herein; and
(ii) Such officers have carefully examined the Disclosure Materials (as defined in
Section 4.1(f) hereof) and, in their opinion, as of their respective dates (except to the
extent superseded by statements in later-filed documents comprising part of the Disclosure
Materials), and as of the Closing Date, the Disclosure Materials do not contain any untrue
statement of a material fact nor omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(b) From November 20, 2007 to the Closing Date, there shall not have been any event or series
of events, change, occurrence or development or a state of circumstances or facts (including any
events, changes, occurrences, developments, state of circumstances or facts existing prior to
November 20, 2007 but which become known during such period), that, individually or in the
aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined
in Section 4.1(h) hereof).
(c) Except as set forth in Section 2.1 above, any authorizations, consents, commitments,
agreements, orders or approvals of, or declarations or filings with, or expirations of waiting
periods imposed by, any federal, state or local court or governmental or regulatory agency or
authority or applicable stock exchange or trading market (any such court, agency, authority,
exchange or market, a “Governmental Authority”) required for the consummation of the Transactions,
as defined herein, (including without limitation the ability to appoint a director pursuant to
Section 5.3 below) shall have been obtained or filed or shall have occurred and any such orders
shall have become final, non-appealable orders.
(d) Except as set forth in Section 2.1 above, the Board of Governors of the Federal Reserve
System (the “Federal Reserve”) shall have issued a written determination of non-control under both
the Bank Holding Company Act (the “BHC Act”) and the Change in Bank Control Act (the “CIBC Act”) on
the Institutional Purchaser’s ownership of up to 9.9% of
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the Corporation’s Common Stock and
Preferred Stock which is convertible into up to an additional 5% of the Corporation’s Common Stock
in form and substance satisfactory to the Institutional Purchaser (including without limitation the
ability to appoint a director pursuant to Section 5.3 below) (collectively, a “Fed Determination”)
and none of the Federal Reserve or any other Governmental Authority shall have imposed or required
any changes that are inconsistent with this Agreement and the Transactions that are not acceptable
to the Institutional Purchaser in its sole discretion.
(e) The Corporation and each Purchaser shall have entered into that certain Preemptive and
Registration Rights Agreement, dated as of the Closing Date, between the Corporation and each
Purchaser, in the form of Exhibit C hereto, which provides the Institutional Purchaser with certain
pre-emptive rights relating to certain equity securities of the Corporation and provides each of
the Institutional Purchaser and the other Purchasers with certain registration rights with respect
to the Shares and the shares of Common Stock issuable upon conversion of the Preferred Stock being
purchased hereunder (the “Preemptive and Registration Rights Agreement”).
(f) Prior to the issuance of the Preferred Stock, the Corporation shall have made any filings,
including the Certificate of Designations, and received any necessary approvals under the General
Corporation Law of the State of Delaware (the “DGCL”) in order to amend its Certificate of
Incorporation to provide for the establishment and designation of the Preferred Stock on the terms
set forth in the Certificate of Designations and the issuance of such shares to the Institutional
Purchaser.
(g) Vedder, Price, Xxxxxxx & Kammholz, P.C., counsel to the Corporation, shall have furnished
to the Purchasers its written opinion, addressed to the Purchasers and dated the Closing Date,
substantially to the effect set forth in Exhibit A hereto.
(h) The Purchasers other than the Institutional Purchaser, collectively, shall purchase at the
Closing Shares with an aggregate purchase price equal to at least Seventy-Five Million Dollars
($75,000,000).
3.2 Conditions to the Corporation’s Obligations.
(a) The obligations of the Corporation hereunder are subject to the accuracy, as of the date
hereof and as of the Closing Date, of the representations and warranties of each Purchaser
contained herein and to the performance by each Purchaser of its obligations hereunder;
(b) The Institutional Purchaser shall have received any and all necessary federal, state,
governmental agency and bank regulatory approvals necessary for the purchase by the Institutional
Purchaser of the Shares and the Preferred Stock pursuant to this Agreement, and any and all
applicable waiting periods upon which such approvals are conditioned shall have expired; and
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(c) The Corporation and each Purchaser shall have entered into the Preemptive and Registration
Rights Agreement.
4. REPRESENTATIONS AND WARRANTIES
4.1 Representations, Warranties and Agreements of the Corporation. The Corporation
represents and warrants to, and agrees with each Purchaser that as of the date hereof:
(a) The authorized capital stock of the Corporation consists of 39,000,000 shares of Common
Stock, no par value, of which 22,778,374 shares are outstanding as of the date of this Agreement and 1,000,000 shares of preferred stock, no par value, of which no shares
are outstanding as of the date of this Agreement.
(b) Since December 31, 2006, the Corporation and each Subsidiary have filed all material
reports, registrations and statements, together with any required amendments thereto, that it was
required to file with the Federal Reserve, the Securities and Exchange Commission (the “SEC”), the
Office of Thrift Supervision (the “OTS”), the Federal Deposit Insurance Corporation (the “FDIC”)
and any other applicable federal or state securities or banking authorities, except where the
failure to file any such report, registration or statement would not reasonably be expected to have
a Material Adverse Effect. All such reports and statements filed with any such regulatory body or
authority are collectively referred to herein as the “Corporation Reports”. As of their respective
dates, the Corporation Reports complied as to form in all material respects with all the rules and
regulations promulgated by the Federal Reserve, the OTS, the FDIC and any other applicable foreign,
federal or state securities or banking authorities, as the case may be.
(c) The records, systems, controls, data and information of the Corporation and the
Subsidiaries are recorded, stored, maintained and operated under means (including any electronic,
mechanical or photographic process, whether computerized or not) that are under the exclusive
ownership and direct control of the Corporation or the Subsidiaries or their accountants (including
all means of access thereto and therefrom). The Corporation (i) has implemented and maintains
disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) to ensure
that material information relating to the Corporation, including the Subsidiaries, is made known to
the chief executive officer and the chief financial officer of the Corporation by others within
those entities, and (ii) has disclosed, based on its most recent evaluation prior to the date
hereof, to the Corporation’s outside auditors and the audit committee of the Corporation’s Board of
Directors (A) any significant deficiencies and material weaknesses in the design or operation of
internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act)
that are reasonably likely to adversely affect the Corporation’s ability to record, process,
summarize and report financial information and (B) any fraud, whether or not material, that
involves management or other employees who have a significant role in the Corporation’s internal
controls over financial reporting. As of the date hereof, to the knowledge of the Corporation,
there is no reason that its outside auditors and its chief executive officer and chief financial
officer will not be able to give the certifications and attestations required pursuant to
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the rules and regulations adopted pursuant to Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, without
qualification, when next due.
(d) Except as previously disclosed in writing to the Institutional Purchaser, since September
30, 2007, no change has occurred and no circumstances exist (including any changes, occurrences,
circumstances or facts existing prior to September 30, 2007 but which become known on or after
September 30, 2007) that is not disclosed in the Disclosure Materials which, individually or in the
aggregate, have had or are reasonably likely to have a Material Adverse Effect.
(e) The Corporation and each Subsidiary have all permits, licenses, authorizations, orders and
approvals of, and have made all filings, applications and registrations with, any governmental
entities that are required in order to carry on their business as presently conducted and that are material to the business of the Corporation or such Subsidiary, except
where the failure to have such permits, licenses, authorizations, orders and approvals or the
failure to make such filings, applications and registrations would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and all such permits,
licenses, certificates of authority, orders and approvals are in full force and effect and, to the
knowledge of the Corporation, no suspension or cancellation of any of them is threatened, and all
such filings, applications and registrations are current.
(f) The Corporation has timely filed all documents required to be filed with the SEC pursuant
to Section 13(a) or 15(d) and Section 14(a) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). The Corporation has furnished to each Purchaser or otherwise made available a
copy of each of the following: (i) the Corporation’s Annual Report on Form 10-K for the year ended
December 31, 2006, as filed with the SEC; (ii) the Corporation’s proxy statement for its 2007
Annual Meeting of Stockholders held on April 26, 2007, as filed with the SEC on March 14, 2007;
(iii) the Corporation’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2007, June
30, 2007 and September 30, 2007, as filed with the SEC; and (iv) the Corporation’s Current Reports
on Form 8-K as filed with the SEC since December 31, 2006 (items (i) through (iv) collectively, the
“Disclosure Materials”), which Disclosure Materials include, among other things, audited
consolidated financial statements of the Corporation for its fiscal years ended December 31, 2005
and 2006, and unaudited interim financial statements of the Corporation for each of its fiscal
quarters ended March 31, 2007, June 30, 2007 and September 30, 2007, respectively. As of the date
hereof and as of the Closing Date, each of the documents comprising a part of the Disclosure
Materials, when such documents are considered together as a whole, did not contain or will not
contain any untrue statement of material fact or omitted to state or will not omit to state any
material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(g) Based upon the representations and warranties of each Purchaser contained herein, the
Corporation is not required by applicable law or regulation in connection with the offer, sale and
delivery of the Shares to the Purchasers and, in the case of the Preferred
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Stock, to the Institutional Purchaser, in the manner contemplated by this Agreement to register the Shares or the
Preferred Stock under the Securities Act of 1933, as amended (the “Securities Act”), or any state
securities laws.
(h) The Corporation and each of the Corporation’s subsidiaries listed on Schedule II
hereto (collectively the “Subsidiaries”) (i) have been duly incorporated or organized and are
validly existing in good standing under the laws of their respective jurisdictions of incorporation
or organization, (ii) are duly qualified to do business and are in good standing as foreign
corporations or organizations in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such qualification, except where
the failure to be so qualified would not reasonably be expected to result in any material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Corporation and its Subsidiaries (taken as a whole), or which would not reasonably
be expected to materially and adversely affect the assets or properties of the Corporation and its
Subsidiaries (taken as a whole), or which would not reasonably be expected to materially and
adversely affect the Transactions as defined herein (individually or in the aggregate, a “Material Adverse Effect”, except that the mere filing of any action, claim, suit
or order relating to any actual or threatened litigation involving the Corporation, any of its
Subsidiaries or any of its employees after the date of this Agreement (rather than the actual facts
and circumstances underlying such action, claim, suit or order) shall not be deemed a “Material
Adverse Effect”); and (iii) have all corporate power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are currently engaged.
(i) All of the issued shares of capital stock of the Corporation have been duly and validly
authorized and issued, are fully paid and non-assessable and no such shares were issued in
violation of the preemptive or similar rights of any security holder of the Corporation. No person
has any preemptive or similar right to purchase any shares of capital stock of the Corporation.
Except as disclosed in the Disclosure Materials and for the 3,882,831 shares of Common Stock
reserved for issuance under the Corporation’s equity compensation or other employee benefit or
compensation plans, arrangements, or agreements, there are no outstanding warrants, options or
other rights to subscribe for or purchase any of the Corporation’s capital stock and no
restrictions upon the voting or transfer of any capital stock of the Corporation pursuant to the
Corporation’s charter or bylaws or any agreement or other instrument to which the Corporation is a
party or by which the Corporation is bound.
(j) The Shares have been duly authorized by the Corporation and, when issued and delivered by
the Corporation against payment therefor in the manner contemplated by this Agreement, will be
validly issued, fully paid and non-assessable, and there are no preemptive rights relating to the
issuance of the Shares. The shares of Preferred Stock have been duly authorized by the Corporation
and, when issued and delivered by the Corporation against payment therefore in the manner
contemplated hereunder, will be validly issued, fully paid and non-assessable, and there are no
preemptive rights relating to the issuance of the Preferred Stock to be issued to the Institutional
Purchaser pursuant to this Agreement.
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(k) This Agreement has been duly authorized, executed and delivered by the Corporation and
constitutes a valid and legally binding agreement of the Corporation enforceable against the
Corporation in accordance with its terms, subject to the effects of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights
generally, and general equitable principles (whether considered in a proceeding in equity or at
law).
(l) The execution, delivery and performance of this Agreement, the issuance and sale of the
Shares and the Preferred Stock in the manner contemplated hereby, and the consummation of the
transactions contemplated herein (collectively, the “Transactions”), will not violate any of the
provisions of the Certificate of Incorporation, including the Certificate of Designations, or
By-laws of the Corporation; and no consent, approval, authorization or order of, or filing or
registration with any such person (including, without limitation, any such court or governmental
agency or body) is required for the consummation of the Transactions by the Corporation, except
such as may be required under state securities laws or Regulation D under the Securities Act, or
required by The Nasdaq Stock Market, and with respect to the Preferred Stock, as required under the
DGCL.
(m) The audited consolidated financial statements (including the related notes) included or
incorporated in the Disclosure Materials present fairly, in all material respects, the financial
condition and results of operations of the Corporation and its subsidiaries, at the dates and for
the periods indicated, and have been prepared in conformity with generally accepted accounting
principles (“GAAP”) applied on a consistent basis throughout the periods involved.
(n) Except as disclosed in the Disclosure Materials or as previously disclosed to the
Institutional Purchaser in writing, there is no action, suit or proceeding before or by any court
or governmental agency or body or any labor dispute now pending or, to the knowledge of the
Corporation, threatened against the Corporation or any of its Subsidiaries, which would reasonably
be expected to have a Material Adverse Effect. To the best knowledge of the Corporation, all
pending legal, arbitral or governmental proceedings or investigations to which the Corporation or
any of its Subsidiaries are a party or have been threatened, or of which any of their assets or
properties is the subject which are not described in the Disclosure Materials, including ordinary
routine litigation incidental to the business of the Corporation or any of its Subsidiaries, are,
considered in the aggregate, not material to the Corporation and its Subsidiaries.
(o) No temporary restraining order, preliminary or permanent injunction or other order issued
by any court of competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Transactions is in effect.
(p) Since December 31, 2006, neither the Corporation nor any Subsidiary has engaged in conduct
that it knew to be a violation of any applicable law or contractual obligation relating to the
recruitment, hiring, extension of offers of employment, retention or solicitation of any current
employee of the Corporation or any Subsidiary.
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(q) No broker’s, finder’s, investment banker’s or similar fee or commission has been paid or
will be payable by the Corporation with respect to, or for any services rendered to the Corporation
ancillary to, the offer, issue and sale of the Shares and Preferred Stock contemplated by this
Agreement other than, to the extent set forth in Schedule 4.1(r) to this Agreement, (i) fees
payable to Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) for acting as financial advisor to
the Corporation in connection with the Transactions, (ii) fees payable to Xxxxx, Xxxxxxxx & Xxxxx,
Inc. (“KBW”) for acting as financial advisor to the Corporation in connection with the
Transactions, and (iii) fees payable to Xxxxxxx Xxxxx & Company, L.L.C. (“Xxxxx”) for acting as a
financial sub-advisor to the Corporation in connection with the Transaction, each of which will be
paid by the Corporation.
(r) Neither the Corporation nor, to the best of its knowledge, anyone acting on its behalf
(excluding Xxxxxx Stanley, Blair, Xxxxx (as defined below), Mesirow (as defined below) and each of
its affiliates, as to which no representation is made) has offered the Shares or Preferred Stock or
any similar securities for sale to, or solicited any offer to buy any of the same from, or
otherwise approached or negotiated in respect thereof with, any person through any “general
solicitation” or “general advertising” (as such terms are used in Rule 502(c) of the Securities
Act). Neither the Corporation nor, to the best of its knowledge, anyone acting on its behalf
(excluding Xxxxxx Xxxxxxx, Blair, Baird, Mesirow and each of its affiliates, as to which no
representation is made) has taken, or will take, any action that would subject the issuance or sale of the Shares or the Preferred Stock to the registration requirements of Section 5 of the
Securities Act.
4.2 Representations and Warranties and Agreements of the Purchasers. Each Purchaser,
or with respect to paragraph 4.2(k) below, only the Institutional Purchaser, named on Schedule
I, severally and not jointly, represents and warrants to, and agrees with the Corporation that,
as of the date hereof:
(a) Such Purchaser has full power and authority to enter into this Agreement and this
Agreement constitutes a valid and legally binding obligation of such Purchaser, enforceable against
such Purchaser in accordance with its terms, subject to the effects of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting creditor’s rights
generally, and general equitable principles (whether considered in a proceeding in equity or at
law).
(b) If the Purchaser is a corporation, partnership, limited liability company, trust, or other
entity, it represents that: (i) it is duly organized, validly existing and in good standing in its
jurisdiction of incorporation or organization and has all the requisite power and authority to
purchase the Shares as provided herein; (ii) it is not an “investment company”, as that term is
defined in the 1940 Act or the rules and regulations promulgated thereunder; (iii) such investment
does not result in any violation of, or conflict with, any term or provision of the charter or
bylaws of the Purchaser or any other instrument or agreement to which the Purchaser is a party or
by which it is bound; and (iv) such investment has been duly authorized by all necessary action on
behalf of the Purchaser.
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(c) If the Purchaser is purchasing the Shares or any Preferred Stock in a representative or
fiduciary capacity, the representations and warranties contained herein (and in any other written
statement or document delivered to the Corporation in connection herewith) shall be deemed to have
been made on behalf of the person or persons for whom such Shares or Preferred Stock are being
purchased.
(d) If the Purchaser is a corporation or a partnership, the Purchaser and the person signing
this Agreement on its behalf hereby represent and warrant that the information contained in this
Agreement and any Offeree Questionnaire completed on behalf of such corporation or partner of such
partnership is true and correct with respect to such stockholders or partners (and if any such
stockholder or partner is itself a corporation or a partnership, with respect to all persons having
an interest in such corporation or partnership, whether directly or indirectly) and that the
Purchaser and the person signing this Agreement have made due inquiry to determine the truthfulness
and accuracy of such information.
(e) Such Purchaser is purchasing the Shares, and with respect to the Institutional Purchaser
the shares of Preferred Stock, for Purchaser’s own account and not with a view to or for sale in
connection with any distribution thereof in a transaction that would violate or cause a violation
of the Securities Act or the securities laws of any state or any other applicable jurisdiction. If
the Purchaser is an entity, the Purchaser has not been organized solely for the purpose of
acquiring the Shares or Preferred Stock.
(f) Such Purchaser is an “accredited investor” as defined in Rule 501(a) promulgated under the
Securities Act and understands and agrees that the offer and sale of the Shares to Purchasers
hereunder, and with respect to the Institutional Purchaser the shares of Preferred Stock hereunder,
have not been registered under the Securities Act or any state securities law in reliance on the
availability of an exemption from such registration requirements based on the accuracy of the
Purchaser’s representations in this Section 4.2.
(g) In the normal course of such Purchaser’s business or affairs, Purchaser invests in or
purchases securities similar to the Shares and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of purchasing the Shares, and
with respect to the Institutional Purchaser the shares of Preferred Stock. Purchaser has received
and has carefully reviewed the Disclosure Materials and understands the information contained
therein and has relied solely upon the Disclosure Materials and independent investigations made by
him in making the decision to invest in the Shares, and with respect to the Institutional Purchaser
the shares of Preferred Stock. Purchaser understands that the Disclosure Materials contain certain
“forward-looking” information regarding the Corporation and its business, and that the
Corporation’s ability to predict results or the actual effect of future plans or strategies is
inherently uncertain, and undue reliance should not be placed on such statements, and Purchaser is
not relying on such “forward-looking” information in deciding to purchase the Shares, and with
respect to the Institutional Purchaser the shares of Preferred Stock. Purchaser has had access to
such financial and other information concerning the Corporation and its Subsidiaries as Purchaser
deemed necessary or desirable in making a
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decision to purchase the Shares, and with respect to the
Institutional Purchaser the shares of Preferred Stock, including an opportunity to ask questions
and receive answers from officers of the Corporation and to obtain additional information (to the
extent the Corporation possessed such information or could acquire it without unreasonable effort
or expense) necessary to verify the accuracy of any information furnished to Purchaser or to which
Purchaser had access.
(h) Such Purchaser is not relying on the Corporation or any of its affiliates or the
Institutional Purchaser with respect to an analysis or consideration of the terms of or economic
considerations relating to an investment in the Shares, or with respect to the Institutional
Purchaser the shares of Preferred Stock. In regard to such considerations and analysis, the
Purchaser has relied on the advice of, or has consulted with, only his, her or its own advisors,
other than those advisors of the undersigned affiliated with the Corporation or any of its
affiliates.
(i) Such Purchaser acknowledges and is aware that there are substantial restrictions on the
transferability of the Shares, and with respect to the Institutional Purchaser the shares of
Preferred Stock. Purchaser understands that the Shares and shares of Preferred Stock have not been
registered under the Securities Act and are “restricted securities” within the meaning of Rule 144
and may not be sold, transferred, or otherwise disposed of without registration under the
Securities Act or an exemption therefrom. Purchaser further understands that the Shares purchased
hereby will be subject to a “Lock-up Period” as defined and described in Section 5.2 below.
Furthermore, Purchaser acknowledges that each certificate evidencing the Shares purchased hereunder
will bear a legend to the effect set forth below, and each Purchaser covenants that, except to the
extent such restrictions are waived by the Corporation, such Purchaser shall not transfer the shares represented by any such certificate without complying
with the restrictions on transfer described in the legend endorsed on such certificate:
(I) 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 COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE
CORPORATION HAS RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE CORPORATION AND
ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. (II) FURTHERMORE, THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AS SET FORTH IN SECTION 5.2 OF THAT CERTAIN STOCK PURCHASE AGREEMENT DATED
AS OF NOVEMBER 26, 2007, A COPY OF WHICH AGREEMENT IS ON FILE IN THE PRINCIPAL
OFFICE OF THE CORPORATION.
Purchaser understands that the Shares, and with respect to the Institutional Purchaser the
shares of Preferred Stock, will not be, and except as provided in the Preemptive and Registration
11
Rights Agreement, Purchaser has no right to require that the Shares or Preferred Stock be,
registered under the Securities Act.
If any Shares or shares of Preferred Stock become eligible for sale pursuant to Rule 144(k) or
any similar or successor provision, the Corporation shall, upon the request of the holder of such
Shares or shares of Preferred Stock pursuant to this Agreement, remove the legend set forth in
Section 4.2(i)(I) from the certificates for such Shares or shares of Preferred Stock. In addition,
if in connection with any transfer a holder of the Shares or shares of Preferred Stock pursuant to
this Agreement delivers to the Corporation an opinion of counsel which (to the Corporation’s
reasonable satisfaction) is knowledgeable in securities law matters to the effect that no
subsequent transfer of such Shares or shares of Preferred Stock, as applicable, shall require
registration under the Securities Act, then the Corporation promptly upon such contemplated
transfer shall deliver new certificates for such Shares or shares of Preferred Stock, as
applicable, which do not bear the Securities Act legend set forth in Section 4.2(i)(I). In
addition, the Corporation shall, upon the request of a holder of such Shares or shares of Preferred
Stock pursuant to this Agreement, after the expiration of the transfer restrictions set forth in
Section 5.2 remove the legend set forth in Section 4.2(i)(II) from the certificates for such Shares
or shares of Preferred Stock.
(j) Such Purchaser acknowledges that Xxxxxx Xxxxxxx was engaged by the Corporation to act as
its financial advisor in connection with the Transactions and will receive a cash fee for its
services, payable by the Corporation, as set forth on Schedule 4.1(r) hereto. Purchaser also
acknowledges that KBW was engaged by the Corporation to act as its financial advisor in connection
with the Transactions and will receive a cash fee plus reimbursement of fees and expenses for its
services, payable by the Corporation, as set forth on Schedule 4.1(r) hereto. Furthermore, such
Purchaser acknowledges that each of Xxxxxx X. Xxxxx & Co. Incorporated (“Baird”), Xxxxxxx Xxxxx &
Company, L.L.C. (“Xxxxx”) and Mesirow Financial, Inc. (“Mesirow”) was engaged by the Corporation to act as a financial sub-advisor in connection
with the Transactions and that Xxxxx will receive a cash fee for its services, payable by the
Corporation, as set forth on Schedule 4.1(r) hereto. To the extent that each of Baird and Mesirow
purchase Shares pursuant to this Agreement, neither firm will be compensated for its services in
connection with the Transactions.
(k) Institutional Purchaser represents and warrants that no authorization, approval, consent,
filing or registration with any federal Governmental Authority, or to the actual knowledge of the
Institutional Purchaser any other Governmental Authority, is necessary in order to consummate the
Transactions at the Closing Date and, assuming receipt of the Fed Determination, other than the
Institutional Purchaser’s agreement with the Federal Reserve to certain customary passivity
requirements that permit the Institutional Purchaser to have at least one director or one observer
(in each case as contemplated by Section 5.3) with the Federal Reserve, Institutional Purchaser
knows of no reason why any Governmental Authority, approvals or actions necessary for it to
purchase all shares subscribed for may be denied or unduly delayed due solely to the nature of the
Institutional Purchaser.
12
5. ADDITIONAL AGREEMENTS
5.1 Availability of Information. The Corporation agrees to use its best efforts to
timely file all periodic reports required under Sections 13(a), 15(d) and 14(a) of the Exchange Act
and to maintain the listing of its Common Stock, including the Shares, on the Nasdaq Global Select
Market, the New York Stock Exchange or other similar stock exchange for a period of at least three
years following the Closing Date.
5.2 Lock-up Agreement. From and after the Closing Date until the Lock-up Expiration
Date (as defined below) (the “Lock-up Period”), the undersigned Purchaser agrees that, without the
prior written consent of the Corporation, he, she or it shall not directly or indirectly (i) offer,
transfer, sell, contract to sell (including any short sale), grant any option to purchase or
otherwise dispose of any Shares of Common Stock purchased by the Purchaser pursuant to this
Purchase Agreement (including, without limitation, the shares of Common Stock issuable upon the
conversion of the Preferred Stock purchased by the Institutional Purchaser pursuant to this
Agreement and Shares of Common Stock of the Corporation which may be deemed to be beneficially
owned by the undersigned in accordance with the rules and regulations of the SEC), (ii) enter into
any Hedging Transaction (as defined below) involving the Shares purchased by the undersigned
pursuant to this Purchase Agreement, or shares of Common Stock issuable upon the conversion of the
Preferred Stock purchased by the Institutional Purchaser pursuant to this Agreement, (iii) make any
demand for, or exercise any right with respect to, the registration of any Shares or any security
convertible into or exercisable or exchangeable for the Common Stock purchased by the undersigned
pursuant to this Purchase Agreement, or (iv) publicly announce any intention to do any of the
foregoing (each of the foregoing referred to as a “Disposition”), except (a) in connection with a
bona fide pledge to, or similar arrangement in connection with a bona fide borrowing from, a
financial institution, (b) in the event of a change in control of the Corporation whereby 25% or
more of the Corporation’s outstanding voting stock is acquired by a third party, (c) in the event
that any necessary Governmental Agency approvals that are a condition precedent to the Closing are
not obtained for any reason, (d) that the Purchaser may tender a proportionate part of its Shares
or shares of Common Stock issuable upon the conversion of the Preferred Stock purchased by the Institutional Purchaser pursuant
to this Agreement in the event of a tender offer by a third party that is recommended or not
opposed by the Corporation’s Board of Directors, or (e) in the event that the independent directors
serving on the Corporation’s Board of Directors on the date of this Agreement no longer constitute
a majority of the Corporation’s Board of Directors. The foregoing restrictions shall not apply to
transfers by a Purchaser of any or all of the Shares purchased by the Purchaser pursuant to this
Agreement or shares of Common Stock issuable upon the conversion of the Preferred Stock purchased
by the Institutional Purchaser pursuant to this Agreement to any affiliate of the Purchaser or to a
foundation or charitable organization, provided that such transferee agrees in writing to the terms
of this Section 5.2. The foregoing restriction is expressly intended to preclude the undersigned
from engaging in any Hedging Transaction or other transaction which is designed to or reasonably
expected to lead to or result in a Disposition during the Lock-Up Period even if the securities
would be disposed of by someone other than the undersigned. “Hedging Transaction” means any short
sale (whether or not against the box) or
13
any purchase, sale or grant of any right (including,
without limitation, any put or call option) with respect to any security (other than a broad-based
market basket or index) that includes, relates to or derives any significant part of its value from
the Common Stock. For purposes of this Agreement, the “Lock-up Expiration Date” means: (1) with
respect to one-half of the Shares purchased by Purchaser hereunder and shares of Common Stock
issuable upon the conversion of the Preferred Stock purchased by the Institutional Purchaser
pursuant to this Agreement, in the aggregate, the first anniversary of the Closing Date; and (2)
with respect to the remaining one-half of the Shares purchased by Purchaser hereunder and shares of
Common Stock issuable upon the conversion of the Preferred Stock purchased by the Institutional
Purchaser pursuant to this Agreement, in the aggregate, the second anniversary of the Closing Date;
provided, however, that in the case of any event specified in clause (b) or (e) above, the “Lock-up
Expiration Date” means the date of such event, and in the case of any event specified in clause (c)
above, the “Lock-up Expiration Date” means: (x) with respect to one-half of the Shares purchased by
Purchaser hereunder and shares of Common Stock issuable upon the conversion of the Preferred Stock
purchased by the Institutional Purchaser pursuant to this Agreement, in the aggregate, six months
from the Closing Date and (y) with respect to the other one-half of the Shares purchased by
Purchaser hereunder and shares of Common Stock issuable upon the conversion of the Preferred Stock
purchased by the Institutional Purchaser pursuant to this Agreement, in the aggregate, the first
anniversary of the Closing Date. The undersigned agrees that the Corporation may (i) with respect
to any Shares purchased hereunder and shares of Common Stock issuable upon the conversion of the
Preferred Stock purchased by the Institutional Purchaser pursuant to this agreement, cause the
transfer agent for the Corporation to note stop transfer instructions with respect to such shares
on the transfer books and records of the Corporation and (ii) with respect to any Shares or shares
of Common Stock issuable upon the conversion of the Preferred Stock purchased by the Institutional
Purchaser pursuant to this agreement for which the undersigned is the beneficial holder but not the
record holder, cause the record holder of such shares to cause the transfer agent for the
Corporation to note stop transfer instructions with respect to such shares on the transfer books
and records of the Corporation, until the Lock-up Expiration Date with respect to all the shares
purchased hereby.
5.3 Directorship.
(a) The Corporation agrees that, prior to the Closing Date, the Board of Directors of the
Corporation (the “Board”) will increase the size of the Board if necessary to effect the provisions
of this Section 5.3, and designate and take any and all actions necessary to appoint the designee
of the Institutional Purchaser (such person and any successor designated by the Institutional
Purchaser, the “Board Representative”), as a Class III member of the Board with a term expiring in
2010 and as a member of the Executive and Planning Committee, and any successor or comparable
committees thereto. The Corporation agrees that such designation and appointment of the Board
Representative does not require any prior notice to or approval by any Governmental Authority. The
Board Representative shall initially be Xxxxxx X. Xxxxx unless the Institutional Purchaser
otherwise notifies the Corporation in writing at least two days prior to the Closing Date. The
Corporation further agrees that it will (i) nominate the Board Representative for election to the
Board at every annual or special meeting of the Corporation’s stockholders to
14
elect any Class III director (or if the Board ceases to be so classified, to elect one director) to serve as member of
the Board for the applicable term, (ii) recommend to the stockholders that they vote to elect the
Board Representative as a member of the Board at any such meeting, and (iii) include such
recommendation in a timely manner in any proxy or other communication with the Corporation’s
stockholders or the public regarding such election. If the Board Representative fails to complete
any term of office to which he is appointed or elected in accordance with this Section 5.3, whether
due to his death, resignation, retirement, disqualification, or removal, the Board shall vote for
and take any and all actions necessary to appoint such other designee of the Institutional
Purchaser as the Board Representative to complete the remainder of such term. The Board
Representative may resign from the Board at any time by giving written notice to the Corporation at
its principal executive office, and such resignation shall be effective without acceptance when the
notice is given to the Corporation, unless a later effective time is specified in the notice.
Notwithstanding the above, except as specifically set forth above, nothing in this Section 5.3 is
meant to confer upon the Institutional Purchaser the right to cause the Board to appoint any
specific person(s) to serve as a director of the Corporation; provided, however, that the
Corporation shall be obligated to accept one such nominee of the Institutional Purchaser, under the
Corporation’s procedures as described above; provided, further, that the right to a Board
Representative shall not apply if the Institutional Purchaser ceases to own 50% or more of the
Corporation’s capital stock acquired directly or indirectly as a result of the Transactions.
(b) Any such Board Representative shall be entitled to the same rights and compensation as the
then current directors of the Corporation at any time such Board Representative is serving as a
director.
(c) If the Institutional Purchaser holds over 4.9% of the Common Stock (assuming conversion of
the Preferred Stock) of the Corporation and does not hold a board seat, for any reason, the
Institutional Purchaser shall have the right to designate, in its sole discretion, one individual
(the “Observer”) to attend all meetings of the Board of Directors of the Corporation. The Observer
shall not be entitled to vote upon any matters submitted to a vote of the Board of Directors, but
shall be entitled to receive all reports, presentations and materials as if it were a member of the
Board of Directors.
5.4 Regulatory Matters. Each of the Corporation and Institutional Purchaser agrees to
use reasonable efforts to take all actions and to do all things necessary, proper or advisable to
obtain a Fed Determination and any other authorizations, consents, orders and approvals of all
Governmental Authorities necessary for Institutional Purchaser to purchase the Shares and the
Preferred Stock on the Closing Date on terms consistent with the terms set forth in this Agreement
(including without limitation the ability to appoint a Board Representative pursuant to Section 5.3
below), including, without limitation, entering into an agreement with the Federal Reserve
providing for such customary passivity covenants and commitments by the Institutional Purchaser as
the Federal Reserve may require in form and substance satisfactory to the Institutional Purchaser
for purposes of both the BHC Act and the CIBC Act (provided that Institutional Purchaser shall not
be required to forfeit any rights Institutional Purchaser is specifically entitled to receive
pursuant to this Agreement, including without limitation the
15
ability to appoint a director pursuant
to Section 5.3 below). Institutional Purchaser and the Corporation each agree to make an
appropriate filing of a notification and report form pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 (the “HSR Act”) with respect to the transactions contemplated by this
Agreement (including any proposed or contemplated open market purchases and conversion of Preferred
Stock by the Institutional Purchaser) promptly after the date of this Agreement and to supply
promptly any additional information and documentary material that may be requested pursuant to the
HSR Act. The Corporation will bear the total cost of any filings required by Institutional
Purchaser under the HSR Act.
5.5 Publicity. Purchaser acknowledges that the Corporation will publicly announce the
entering into this Agreement and the completion of the Transactions as soon as practicable
following the date hereof and in any event not later than the fourth business day after the Closing
Date, and Purchaser hereby agrees that the Corporation may specifically name Purchaser as one of
the Purchasers of Shares and, in the case of the Institutional Purchaser, the Preferred Stock, in
this offering in any such announcement and in any public disclosure regarding the Transactions
thereafter, provided, however, that prior to making any such disclosure, the Corporation will
provide the Institutional Purchaser a reasonable period of time (but not more than three business
days) to review and provide input with respect to such disclosure which the Corporation may, in its
reasonable discretion, consider including in such announcement and/or disclosure.
5.6 Indemnification of Purchasers. The Corporation shall indemnify and hold
Purchasers harmless from and against all claims in respect of all fees paid or payable to Xxxxxx
Xxxxxxx, KBW and Xxxxx in connection with this Agreement and the transactions contemplated thereby.
5.7 Indemnification of the Corporation. Purchaser acknowledges that he, she or it
understands the meaning and legal consequences of the representations, warranties and covenants
contained in Section 4.2 hereof, and hereby agrees to indemnify and hold harmless the Corporation
and its Subsidiaries, and each of its and its Subsidiaries’ directors, officers, employees, agents
and affiliates, from and against any and all loss, damage or liability due to or arising out of a
breach of any representation or warranty of the Purchaser contained in this Agreement.
5.8 Confidentiality; Confidentiality and Standstill Agreement; Additional Standstill
Commitment.
(a) For so long as a Purchaser owns any Shares or Preferred Stock, the Purchaser agrees and
agrees to cause its Representatives (as defined below) (to the extent such Representatives are
provided any such confidential information by the Corporation or Purchaser), to keep confidential
any information obtained from the Corporation, except to the extent that such information can be
shown to have been (i) previously known on a non-confidential basis by such Purchaser or its
Representatives (as hereinafter defined), (ii) in the public domain through no fault of such
Purchaser or its Representatives or (iii) later acquired by such Purchaser from sources other than
the Corporation or any of its Subsidiaries not known
16
by such Purchaser or its Representatives, as applicable, to be bound by any confidentiality obligation; provided that a Purchaser may disclose
such information if required by judicial or administrative process or by other requirements of law
or national stock exchange, subject to compliance with the following sentence. In the event any
Purchaser pursuant to this Agreement or anyone to whom any of them transmit confidential
information is requested or required (by oral questions, interrogatories, requests for information
or documents, subpoenas, civil investigative demand or similar process) to disclose any such
information, such Purchaser shall (x) provide the Corporation with prompt notice so that the
Corporation may seek a protective order or other appropriate remedy and/or waive such holder’s
compliance with the provisions of this section, (y) furnish only that portion of such information
that such Purchaser is advised by counsel is legally required and (z) at the Corporation’s expense
and direction, exercise its reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded such information. For purposes of this Agreement, “Representative”
shall mean, with respect to any person, any of such person’s officers, directors, employees,
agents, attorneys, accountants, consultants, equity financing partners or financial advisors or
other person associated with, or acting for or on behalf of, such person.
(b) The terms, provisions, rights and obligations of the Purchaser and the Corporation
included in that certain Confidentiality and Standstill Agreement (the “CA”) previously entered
into between the Purchaser and the Corporation in connection with the evaluation by the Purchaser
of the Transactions contemplated by this Agreement, including such CA, shall terminate and be of no
further force or effect as of the Closing (as contemplated by Section 7 of the CA). In addition,
each Purchaser agrees that, without the prior written consent of the Board of Directors of the
Corporation, neither such Purchaser nor its affiliates shall acquire shares of voting or nonvoting
stock (whether in the form of common or preferred stock) of the Corporation if, after such
acquisition, the Purchaser and affiliates would hold more than 14.9% of the Corporation’s voting
stock.
5.9 Certain Covenants.
(a) For so long as the Institutional Purchaser or any of its affiliates holds Shares or any
shares of Preferred Stock, the Corporation shall deliver to the Institutional Purchaser and such
affiliates as soon as available, consolidated statements of income and cash flows of the
Corporation and its Subsidiaries for each month and for the period from the beginning of the fiscal
year to the end of such month, and consolidated balance sheets of the Corporation and its
Subsidiaries as of the end of such fiscal month, setting forth in each case
comparisons to the Corporation’s annual budget and to the corresponding period in the
preceding fiscal year, in each case prepared in accordance with GAAP.
(b) For so long as the Institutional Purchaser or any of its affiliates holds Shares or any
shares of Preferred Stock, the Corporation shall permit the Institutional Purchaser and its
affiliates and any of their respective Representatives, upon reasonable notice and during normal
business hours and at such other times as the Institutional Purchaser or its affiliates may
reasonably request, to (i) visit and inspect any of the properties of the Corporation and its
17
Subsidiaries, (ii) examine the corporate and financial records of the Corporation and its
Subsidiaries and make copies thereof or extracts therefrom and (iii) discuss the affairs, finances
and accounts of any such corporations with the directors, officers and key employees of the
Corporation and its Subsidiaries, and the Corporation shall use its best efforts to cause the
independent accountants of the Corporation and its Subsidiaries to be available to the
Institutional Purchaser, its affiliates and their respective Representatives (at reasonable times
and upon reasonable notice); provided however, that in the case of each of Section 5.9(a) and
5.9(b) hereof, the Institutional Purchaser shall, and shall cause its Representatives to, be bound
by the provisions of Section 5.8(a).
5.10 Subsequent Sales of Common Stock. The Corporation shall not take any action or
omit to take any action which would cause the Transactions or any portion thereof to require a vote
of the Corporation’s stockholders.
6. MISCELLANEOUS
6.1 Survival of Representations and Warranties. All statements contained in any
officers’ certificates delivered by or on behalf of the Corporation or any of its Subsidiaries
pursuant to this Agreement or in connection with the Transactions contemplated hereby will be
deemed representations or warranties of the Corporation under this Agreement. All representations
and warranties contained in this Agreement made by or on behalf of the Corporation or the
Purchasers will survive the execution and delivery of this Agreement, any investigation at any time
made by or on behalf of the Corporation or the Purchasers, and the sale and purchase of the Shares
and the Preferred Stock under this Agreement, and, except for representations and warranties set
forth in Section 4.1(h), (i), (j), (k), (l), (m), (n), (o), (p) and (r) and Section 4.2(k) shall
expire on the first anniversary of the Closing Date.
6.2 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by or against the respective successors and assigns of the parties
hereto.
6.3 Notices. All written communications provided for herein are required to be sent
by U.S. Certified Mail or recognized overnight delivery service (with charges prepaid) and (i) if
to a Purchaser, addressed to such Purchaser at the address as specified for such communications in
the Schedule of Purchasers attached hereto as Schedule I, or at such other address as such
Purchaser may have specified to the Corporation in writing, and (ii) if to the Corporation,
addressed to it at:
PrivateBancorp, Inc.
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
18
or at such other address as the Corporation may have specified to the Purchaser in writing.
Notices under this Section 6.3 shall be deemed given only when actually received.
6.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PROVISIONS OF SUCH STATE.
6.5 Counterparts. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be deemed to be an
original, but all such counterparts shall together constitute one and the same instrument.
6.6 Headings. The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
6.7 Severability. Any provision of this Agreement that 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, and any such
prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not
invalidate or render unenforceable such provision in any other jurisdiction.
6.8 Expenses. Each Purchaser and the Corporation shall bear all expenses incurred by
it in connection with the Agreement and the Transactions contemplated hereby; provided however, the
Corporation shall promptly reimburse the Institutional Purchaser and its affiliates for their
actual out-of-pocket costs and expenses (including, without limitation, attorneys’, accountants’,
consultants’ and other advisors’ fees and expenses and any filing fees with respect to any required
regulatory or Government Authority approvals) arising in connection with this Agreement, the
Preemptive and Registration Rights Agreements and the Transactions, which amount shall not exceed
$1,000,000.
6.9 Construction. Each agreement contained herein shall be construed (absent express
provision to the contrary) as being independent of each other agreement contained herein, so that
compliance with any one agreement shall not (absent such an express contrary provision) be deemed
to excuse compliance with any other agreement. Where any provision herein refers to action to be
taken by any person or entity, or which such person or entity is prohibited from taking, such
provision shall be applicable whether such action is taken directly or indirectly by such person or
entity.
[SIGNATURE PAGE FOLLOWS]
19
If the foregoing correctly sets forth the agreement between the Corporation and the Purchaser,
please indicate your acceptance in the space provided for that purpose below.
Very truly yours, PRIVATEBANCORP, INC. |
||||
By: | ||||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | President and Chief Executive Officer | |||
SEPARATE SIGNATURE PAGE FOR EACH PURCHASER ATTACHED
20
SIGNATURE PAGE
PURCHASER NAME
|
No. of Shares to be Purchased | |||
$ | 28.71 | |||
Price per Share |
By:
|
Date: | |||||||||||
Name: |
|
|||||||||||
Title: |
|
|||||||||||
Exact Name for Registration of Shares: | ||||||||||||
Registered Address: | Mailing Address: | |||||||||||
Contact Person:
Telephone:
Facsimile:
Email:
Telephone:
Facsimile:
Email:
Number of Shares Owned of Record or Beneficially Prior to Purchase:
|
* |
* | Provide details regarding the nature of any direct or indirect beneficial ownership: | ||
Provide information regarding any affiliation or business relationship you have or had with
PrivateBancorp, Inc. since January 1, 2004 (other than through stock ownership):
21
SCHEDULE I
SCHEDULE OF PURCHASERS
DOLLAR | ||||||||
AMOUNT OF | NO. OF | |||||||
NAME OF PURCHASER | INVESTMENT | SHARES | ||||||
GTCR FUND IX/A, L.P. |
$ | 50,244,280 | 1,750,062 | |||||
GTCR FUND IX/B, L.P. |
8,377,578 | 291,800 | ||||||
GTCR CO-INVEST III, L.P. |
378,139 | 13,171 | ||||||
Mesirow Financial Holdings, Inc. |
25,000,000 | 870,777 | ||||||
Mesirow Financial Capital Partners IX, LP |
15,000,000 | 522,466 | ||||||
Edgewater Growth Capital Partners II |
25,000,000 | 870,777 | ||||||
Xxxxx Financial Corporation |
15,000,000 | 522,466 | ||||||
SABA Investment Partners, LLC, Series 2 |
5,250,000 | 182,863 | ||||||
Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxxxxxxx, as
Co-Trustees of the Wildwood Trust #3 U/A/D
7/24/87 |
250,000 | 8,707 | ||||||
Xxxxxxx X. Xxxxx Xx. and Xxxx X. Xxxxx, as
Co-Trustees of the Wildwood Trust #1 U/A/D
7/24/87 |
250,000 | 8,707 | ||||||
Xxxxxxx X. Xxxxx Xx., Xxxxxxx X. Xxxxx,
Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxx, as
Co-Trustees of the Xxxxxxxx X. Xxxxx 1991
Trust U/A/D 12/1/91 |
750,000 | 26,123 | ||||||
X.X. Xxxxx & Company, LLC |
750,000 | 26,123 | ||||||
Xxxx X. Xxxxxxxxx |
1,000,000 | 34,832 | ||||||
Avy X. Xxxxx |
1,000,000 | 34,832 | ||||||
Xxxxxxx Xxxxxxxx |
1,000,000 | 34,832 | ||||||
Xxxx Xxxxxx and Xxxxxx Xxxxxxx as Designee [?] |
1,000,000 | 34,832 | ||||||
Global Investor Fund, LLC |
10,000,000 | 348,310 | ||||||
TOTAL |
$ | 160,250,000 | 5,581,680 | |||||
DOLLAR AMOUNT OF |
NO. OF SHARES OF PREFERRED |
|||||||
NAME OF PURCHASER | INVESTMENT | STOCK | ||||||
GTCR FUND IX/A, L.P. |
$ | 34,915,523 | 1,216.145 | |||||
GTCR FUND IX/B, L.P. |
5,821,728 | 202.777 | ||||||
GTCR CO-INVEST III, L.P. |
262,754 | 9.152 | ||||||
TOTAL |
$ | 41,000,005 | 1,428.074 | |||||
SCHEDULE II
LIST OF SUBSIDIARIES
Jurisdiction of Incorporation or | ||
Name of Subsidiary | Organization | |
The PrivateBank and Trust Company
|
Illinois | |
Lodestar Investment Counsel, LLC (80% owned)
|
Delaware | |
The PrivateBank Securities, LLC
|
Delaware | |
PB Real Estate, LLC
|
Delaware | |
The PrivateBank
|
Federal (OTS) | |
TrustCo, LLC
|
Missouri | |
The PrivateBank
|
Michigan | |
The PrivateBank Mortgage Company
|
Michigan | |
BBH Financial Advisors, Inc.
|
Michigan | |
The PrivateBank
|
Georgia | |
The PrivateBank, N.A.
|
Federal (OCC) | |
The PrivateBank Mortgage Company, LLC
|
Illinois | |
PrivateBancorp Statutory Trust II
|
Delaware | |
PrivateBancorp Statutory Trust III
|
Connecticut | |
Bloomfield Hills Statutory Trust I
|
Delaware | |
Private Investment Limited Partnership I
|
Illinois |
SCHEDULE 4.1(R)
to
Stock Purchase Agreement
dated as of 3:00 p.m. EST on November 26, 2007
by and between
PrivateBancorp, Inc.
and
Each of the Purchasers Listed on the Schedule of Purchasers Attached Thereto
Stock Purchase Agreement
dated as of 3:00 p.m. EST on November 26, 2007
by and between
PrivateBancorp, Inc.
and
Each of the Purchasers Listed on the Schedule of Purchasers Attached Thereto
Fees Payable to each of the Financial Advisors or Sub-Advisors to PrivateBancorp, Inc. in
connection with the Transactions contemplated by the Stock Purchase Agreement:
Name of Firm | Amount of Fee Payable by Company | |||
1. Xxxxxx Xxxxxxx & Co.
Incorporated
|
2% of the aggregate dollar amount of the proceeds of the offering | |||
2. Xxxxx, Xxxxxxxx & Xxxxx, Inc.
|
$175,000 | |||
3. Xxxxxxx Xxxxx & Company, L.L.C.
|
7.5 basis points of the aggregate dollar amount of the proceeds of the offering |
EXHIBIT A
DRAFT FORM OF OPINION OF
VEDDER, PRICE, XXXXXXX & KAMMHOLZ, P.C.
DRAFT FORM OF OPINION OF
VEDDER, PRICE, XXXXXXX & KAMMHOLZ, P.C.
[December __], 2007
To: | The Purchasers named on Schedule I hereto | |
Re: | PrivateBancorp, Inc. |
Ladies and Gentlemen:
This opinion is being furnished to you pursuant to Section 3.1(g) of the Stock Purchase
Agreement, dated as of the date hereof (the “Purchase Agreement”), by and among PrivateBancorp,
Inc., a Delaware corporation (the “Corporation”), and the persons named therein as Purchasers (the
“Purchasers”), relating to the issuance and sale by the Corporation to the Purchasers of up to an
aggregate of 5,294,328 shares of Common Stock, no par value, of the Corporation (the “Shares”) and
up to 1,428.074 shares of Series A Junior Nonvoting Preferred Stock (the “Preferred Stock”) of the
Corporation. Capitalized terms used but not defined in this opinion shall have the meanings
described to them in the Purchase Agreement.
In rendering this opinion, we have examined such documents and records as we deemed
appropriate, including the following:
(i) Copy of the Amended and Restated Certificate of Incorporation of the Corporation, as
amended, certified as of a recent date by the Secretary of State of the State of Delaware;
(ii) Copy of the Amended and Restated By-laws of the Corporation, certified by the Secretary
of the Corporation to be a true and complete copy;
(iii) Certificate dated as of a recent date of the Secretary of State of the State of Delaware
certifying as to the incorporation and good standing of the Corporation under the laws of the State
of Delaware;
(iv) Certificate dated as of a recent date of the Secretary of State of the State of Illinois
certifying as to the good standing of the Corporation to do business under the laws of the State of
Illinois.
(v) Copies, certified by the Secretary of the Corporation to be true and complete, of the
resolutions duly adopted by the Board of Directors of the Corporation on [DATE] and [DATE];
(vi) Copy of the Purchase Agreement;
(vii) A copy of the Certificate of Designations of the Preferred Stock;
(viii) Copies of the Disclosure Materials; and
(ix) Copies of the certificates evidencing the Shares and the shares of Preferred Stock..
In connection with this opinion, we have examined and relied upon the originals or copies of
such records of the Corporation, certificates of officers of the Corporation, certificates of
transfer agents and public officials, and such other documents as we have deemed relevant and
necessary as a basis for our opinions. We have also reviewed and relied upon the factual
representations set forth in the Purchase Agreement.
In the course of our examination, we have assumed the genuineness of all signatures other than
signatures by officers of the Corporation, the authenticity of all documents submitted to us as
originals, and the conformity to original documents of documents submitted to us as certified or
photostatic copies.
Based upon the foregoing, we are of the opinion that:
(a) The Corporation and each of its Subsidiaries are validly existing in good standing under
their respective jurisdictions of incorporation or organization.
(b) The Certificate of Designation has been adopted by the Corporation in accordance with all
applicable legal requirements.
(c) The Purchase Agreement has been duly authorized by all necessary corporate action on the
part of the Corporation, has been duly executed and delivered by the Corporation and constitutes
the valid and binding obligation of the Corporation enforceable against the Corporation 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, by general equitable principles (regardless of whether considered in a proceeding in
equity or at law) or by matters of public policy.
(d) The issuance of the Shares and the shares of the Preferred Stock has been duly authorized
by all necessary corporate action on the part of the Corporation and, when paid for in accordance
with the Purchase Agreement, the Shares and the shares of the Preferred Stock will be duly
authorized, validly issued, fully paid and non-assessable.
(e) Except as previously made or obtained or as may be required under state securities or blue
sky laws, the rules and regulations of The Nasdaq Stock Market, or the General Corporation Law of
the State of Delaware, as the case may be, no authorization, approval, consent, order,
registration, qualification, filing or decree of any court or governmental authority or agency is
necessary for the execution, delivery and performance by the Corporation of its obligations under
the Purchase Agreement.
(f) The issuance, sale and delivery of the Shares and the shares of the Preferred Stock by the
Corporation to the Purchasers and, in the case of the Preferred Stock, to the Institutional
Purchaser, under the circumstances contemplated by the Purchase Agreement is not required to
be registered under the Securities Act of 1933, as amended.
(g) Neither the Corporation nor any of its Subsidiaries is an “investment company” required to
be registered under the Investment Company Act of 1940, as amended.
(h) The execution and delivery by the Corporation of the Purchase Agreement, and the
performance by the Corporation of its agreements under the Purchase Agreement, do not (i) violate
the Corporation’s Certificate of Incorporation, including the Certificate of Designations, or
By-laws, or (ii) result in a breach of, constitute a default under, or result in the creation of
any material lien, security interest or other encumbrance upon any of the Corporation’s or any of
its Subsidiaries’ properties under, any agreement (a) listed as an exhibit to the Corporation’s
Annual Report on Form 10-K for its fiscal year ended December 31, 2006, (b) listed as an exhibit to
the Corporation’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2007, June 30,
2007 or September 30, 2007, and (c) listed as an exhibit to the Corporation’s Current Reports on
Form 8-K filed but not furnished since December 31, 2006.
This opinion is limited to the specific issues addressed herein and is limited in all respects
to laws and facts existing on the date hereof. By rendering this opinion, we do not undertake to
advise you of any changes therein which may occur after the date hereof.
We express no opinion herein with respect to the laws of any jurisdiction other than the laws
of the State of Illinois, the General Corporation Law of the State of Delaware and the federal laws
of the United States.
This opinion is rendered to you solely for your benefit in connection with the Transactions,
and may not be relied upon by you for any other purpose, or by any other person for any purpose,
without our prior written consent.
Very truly yours, |
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