PRIVATEBANCORP, INC. STOCK PURCHASE AGREEMENT Series A Junior Nonvoting Preferred Stock Dated as of June 10, 2008
EXHIBIT
10.1
Series
A Junior Nonvoting Preferred Stock
Dated as
of June 10, 2008
GTCR Fund
IX/A, L.P.
GTCR Fund
IX/B, L.P.
GTCR
Co-Invest III, L.P.
c/o GTCR
Xxxxxx Xxxxxx XX, L.L.C.
0000
Xxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
This
Stock Purchase Agreement (the “Agreement”) is entered into as of June 10,
2008, by and among PrivateBancorp, Inc., a Delaware corporation (the
“Corporation”), 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 (each a “Purchaser” and
collectively, the “Purchasers”).
WHEREAS, the Corporation and
each of the Purchasers is a party to that certain Preemptive and Registration
Rights Agreement dated as of December 11, 2007 by and among PrivateBancorp, Inc.
and the persons listed as a signatory thereto (the “Preemptive Rights
Agreement”);
WHEREAS, the Corporation has
entered into a Purchase Agreement dated June 5, 2008, (the “Underwriting
Purchase Agreement”), by and among the Corporation, Xxxxx, Xxxxxxxx & Xxxxx,
Inc. and Xxxxxx X. Xxxxx & Co. Incorporated as Representatives of the
several Underwriters listed on Schedule I thereto (the “Underwriters”) providing
for the offer and sale of 4,000,000 shares of the Corporation’s common stock
(the “Firm Securities”) to the Underwriters in an underwritten public offering
(the “Public Offering”);
WHEREAS, pursuant to Section
3.1 of the Preemptive Rights Agreement, if the Corporation at any time makes a
Qualified Equity Offering (as such term is defined in the Preemptive Rights
Agreement), the Purchasers have the right, so long as the Purchasers and its
affiliates collectively own more than five percent (5%) of the outstanding
shares of the Corporation’s common stock, to acquire from the Corporation for
the same price and on the same terms as such securities are proposed to be
offered to others, in the aggregate up to the amount of New Stock (as such term
is defined in the Preemptive Rights Agreement) required to enable them to
maintain their Institutional Investor Percentage Interest (as such term is
defined in the Preemptive Rights Agreement);
WHEREAS, pursuant to Section
3.2(a) of the Preemptive Rights Agreement, the Corporation notified the
Purchasers of the proposed Public Offering and of the execution of the
Underwriting Agreement by it and the Underwriters and the pricing terms of the
sale of the shares of the Corporation’s common stock to the Underwriters in the
Public Offering;
WHEREAS, pursuant to Section
3.3 of the Preemptive Rights Agreement, the Purchasers notified the Corporation
that they intend to exercise their preemptive rights under Section 3.1 of the
Preemptive Rights Agreement to purchase the Designated Stock (as such term is
defined in the Preemptive Rights Agreement) with respect to the Firm Securities;
and
WHEREAS, pursuant to Section
3.3(d) of the Preemptive Rights Agreement, the Purchasers have exercised their
option to purchase shares of the Corporation’s Series A Junior Nonvoting
Preferred Stock (the “Series A Stock”).
NOW, THEREFORE, in
consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. AUTHORIZATION;
SALE AND PURCHASE OF SHARES OF SERIES A STOCK
1.1 Authorization of
Series A Stock. The Corporation has duly authorized the
issuance and sale of up to an aggregate of 522.963 additional shares of its
Series A Stock. A copy of the Certificate of Designations of the
Series A Stock (the “Certificate of Designations”), is attached hereto as
Exhibit A. A
copy of the form of amendment to the Certificate of Designations (the “Amendment
to the Certificate of Designations”) is attached hereto as Exhibit B. Pursuant
to Section 2 and Section 11 of the Certificate of Designations, the
holders of a majority of the shares of Series A Stock currently outstanding
have approved the Amendment to the Certificate of Designation increasing the
number of shares of Series A Stock.
1.2 Sale and Purchase of Series
A Stock. Subject to the terms and conditions herein provided,
the Corporation hereby agrees to sell to the Purchasers, and the Purchasers
agree to purchase from the Corporation, at the Closing provided for in
Section 2 hereof, 522.963 shares of Series A Stock from the
Corporation at a purchase price of $32,640.00 per share of Series A Stock,
for an aggregate purchase price equal to $17,069,512.32.
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 Series A Stock shall be made at the
offices of Xxxxxx Price P.C., or at such other place or in such other manner as
may be agreed upon by the Corporation and the Purchasers, at 10:00 a.m.,
Chicago, Illinois time, on June 11, 2008, or at such other time or date as
the Purchasers and the Corporation may mutually determine (such date and time of
payment and delivery being herein called the “Closing Date”).
2.2 Delivery of and Payment for
the Series A Stock. At the Closing, the Corporation shall
deliver to each Purchaser certificates evidencing the shares of Series A
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 Exchange Act Reports (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 Exchange Act Reports), and as of the Closing Date, the
Exchange Act Reports 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
March 31, 2008 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 March 31, 2008 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) 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 continue to appoint a director pursuant to
Section 5.3 of the November 26, 2007 Purchase Agreement (as defined in
Section 4.1(s) below) shall have been obtained or filed or shall have
occurred and any such orders shall have become final, non-appealable
orders.
(d) Prior
to the issuance of the Series A Stock, the Corporation shall have made any
filings, including the Amendment to the Certificate of Designations, and
received any necessary approvals under the General Corporation Law of the State
of Delaware (the “DGCL”) in order to increase the number of shares of
Series A Stock to permit the sale of the shares of
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Series A
Stock to the Purchasers under this Agreement and to provide for the issuance of
shares of Series A Stock to the Purchasers pursuant to this
Agreement.
(e) Xxxxxx
Price 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 C
hereto.
(f) The
Underwriter shall have acquired the Firm Securities in the Public Offering
pursuant to the terms of the Underwriting Purchase Agreement, as same is in
effect on the date hereof.
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) Each
of the Purchasers shall have provided its written consent to the adoption by the
Corporation of the Amendment to the Certificate of Designations;
and
(c) The
Purchasers shall have received any and all necessary federal, state,
governmental agency and bank regulatory approvals necessary for the purchase by
the Purchasers of the Series A Stock pursuant to this Agreement, and any
and all applicable waiting periods upon which such approvals are conditioned
shall have expired.
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 89,000,000 shares of
Common Stock, no par value, of which 28,697,921 shares are outstanding as of the
date of this Agreement and 1,000,000 shares of preferred stock, no par value, of
which 1,428.074 shares of Series A Stock are outstanding as of the date of
this Agreement.
(b) Since
December 31, 2007, 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.
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(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 the rules and regulations adopted pursuant to Section 404 of the
Xxxxxxxx-Xxxxx Act of 2002, without qualification, when next due.
(d) Since
March 31, 2008, no change has occurred and no circumstances exist
(including any changes, occurrences, circumstances or facts existing prior to
March 31, 2008 but which become known on or after March 31, 2008) that
is not disclosed in the Exchange Act Reports 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 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, 2007, as filed with the SEC;
(ii) the Corporation’s proxy statement for its 2008 Annual Meeting of
Stockholders held on May 22, 2008, as filed with the SEC; (iii) the
Corporation’s Quarterly Report on Form 10-Q for the quarter ended
March 31, 2008, as amended, as filed with the SEC; and (iv) the
Corporation’s Current Reports on Form 8-K as filed with the SEC since
January 1, 2008 (items (i) through (iv)
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collectively,
the “Exchange Act Reports”), which Exchange Act Reports include, among other
things, audited consolidated financial statements of the Corporation for its
fiscal years ended December 31, 2006 and 2007, and unaudited interim
financial statements of the Corporation for its fiscal quarter ended
March 31, 2008. As of the date hereof and as of the Closing
Date, each of the documents comprising a part of the Exchange Act Reports did
not contain and will not contain any untrue statement of material fact or
omitted to state and 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 Series A Stock to the Purchasers, in
the manner contemplated by this Agreement, to register the Series A 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. Except as set forth in the
Preemptive Rights Agreement, no person has any preemptive or similar right to
purchase any shares of capital stock of the Corporation. Except as
disclosed in the Exchange Act Reports and for the 5,524,550 shares of Common
Stock reserved for issuance under existing awards 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.
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(j) The
shares of Series A Stock to be issued to the Purchasers pursuant to the
terms of this Agreement have been duly authorized by the Corporation and, when
issued and delivered by the Corporation against payment therefor in the manner
contemplated hereunder, will be validly issued, fully paid and non-assessable,
and, except as set forth in the
Preemptive Rights Agreement, there are no preemptive rights relating to the
issuance of the Series A Stock to be issued to the Purchasers pursuant to
this Agreement.
(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). The authorization by the Corporation of this Agreement and the
transactions contemplated thereby is intended to provide the Purchasers with the
relief from Section 16(b) of the Exchange Act provided by
Rule 16b-3(d) thereunder, to the extent necessary.
(l) The
execution, delivery and performance of this Agreement, the issuance and sale of
the Series A 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 and the Amendment to 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 as required under the DGCL.
(m) The
audited consolidated financial statements (including the related notes) included
in the Corporation’s Annual Report on Form 10-K for the year ended
December 31, 2007 and in the reports filed by the Corporation with the
Federal Reserve, 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 Exchange Act Reports, 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 Exchange Act Reports, 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.
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(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, 2007, 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.
(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
Series A Stock contemplated by this Agreement.
(r) Neither
the Corporation nor, to the best of its knowledge, anyone acting on its behalf
has offered the Series A Stock to, or solicited any offer to buy any
Series A Stock 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 has taken, or will take, any action that would
subject the issuance or sale of the Series A Stock to the registration
requirements of Section 5 of the Securities Act.
(s) Each
of the Preemptive Rights Agreement and that certain Stock Purchase Agreement,
dated as of November 26, 2007 (the “November 26, 2007 Purchase
Agreement”), among the Corporation, the Purchasers and certain other
stockholders of the Corporation identified therein, is in full force and effect
and has not been modified. The Corporation is in compliance in all material
respects with the terms of the Preemptive Rights Agreement and the
November 26, 2007 Purchase Agreement. The representations and
warranties of the Corporation in the Underwriting Purchase Agreement are true
and correct in all material respects.
4.2 Representations and
Warranties and Agreements of the Purchasers. Each 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) Each
Purchaser 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 of Series A Stock as provided herein; (ii) it is not an
“investment company”, as that term is defined in the Investment Company Act of
1940 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, bylaws or other organizational
8
document
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.
(c) If
the Purchaser is purchasing shares of Series A Stock pursuant to this
Agreement 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 of
Series A Stock is being purchased.
(d) The
Purchaser and the person signing this Agreement on its behalf hereby represent
and warrant that the information contained in this Agreement 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 of Series A 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. The Purchaser has not been organized solely for the
purpose of acquiring the Series A Stock.
(f) Such
Purchaser is an “institutional accredited investor” as defined in Rule 501
promulgated under the Securities Act and understands and agrees that the offer
and sale of the shares of Series A 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 Series A Stock and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of purchasing the Series A
Stock.
(h) Purchaser
understands that the Exchange Act Reports 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 shares of Series A Stock pursuant to
this Agreement. 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 decision to purchase the Series A Stock
pursuant to this Agreement, 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.
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(i) Such
Purchaser is not relying on the Corporation or any of its affiliates with
respect to an analysis or consideration of the terms of or economic
considerations relating to an investment in the Series A
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.
(j) Such
Purchaser acknowledges and is aware that there are substantial restrictions on
the transferability of the Series A Stock. Purchaser understands
that the shares of Series A 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. Furthermore, Purchaser acknowledges that each certificate
evidencing the shares of Series A Stock 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:
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.
Purchaser
understands that the shares of Series A Stock will not be and except as
provided in the Section 5.7 below and the Preemptive Rights Agreement,
Purchaser has no right to require that the Series A Stock be, registered
under the Securities Act.
If any
shares of Series A Stock become eligible for sale without registration
under the Securities Act and without limitation as to amount pursuant to
Rule 144 or any similar or successor provision, the Corporation shall, upon
the request of the holder of such shares of Series A Stock acquired
pursuant to this Agreement, remove the legend set forth in Section 4.2(j)
from the certificates for such shares. In addition, if in connection
with any transfer a holder of the shares of Series A 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 shares shall require
registration under the Securities Act, then the Corporation promptly upon such
contemplated transfer shall deliver new certificates for such shares which do
not bear the Securities Act legend set forth in
Section 4.2(j).
(k) Each
Purchaser represents and warrants that no authorization, approval, consent,
filing or registration with any federal Governmental Authority, or to the actual
knowledge of the Purchaser any other Governmental Authority, is necessary in
order to consummate the Transactions at the Closing Date.
10
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 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 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 the Series A 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 Purchasers 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.
5.3 Directorship. Notwithstanding
any provision in the November 26, 2007 Purchase Agreement, including the
last proviso in Section 5.3(a) of the November 26, 2007 Purchase
Agreement, the Purchasers shall remain entitled to all rights to designate and
appoint a Board Representative (as defined in the November 26, 2007
Purchase Agreement) so long as the Purchasers and their affiliates hold,
directly or indirectly, at least 1,741,553 shares of the Corporation’s common
stock (assuming conversion of all Series A Stock) (appropriately adjusted
to reflect any stock splits, stock dividends, subdivisions, reverse splits and
similar events).
5.4 Indemnification of the
Corporation. Purchaser acknowledges that he, she or it
understands the meaning and legal consequences of the representations and
warranties 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 Section 4.2
of this Agreement.
5.5 Confidentiality;
Confidentiality and Standstill Agreement; Additional Standstill
Commitment. For so long as a Purchaser owns any shares of
Series A 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 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
11
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.
5.6 Certain
Covenants.
(a) For
so long as the Purchasers or any of its affiliates hold any shares of Series A
Stock, the Corporation shall deliver to the Purchasers 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 Purchasers or any of its affiliates hold any shares of Series A
Stock, the Corporation shall permit the Purchasers and its affiliates and any of
their respective Representatives, upon reasonable notice and during normal
business hours and at such other times as the Purchasers or its affiliates may
reasonably request, to (i) visit and inspect any of the properties of the
Corporation and its 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 Purchasers, their affiliates and their respective
Representatives (at reasonable times and upon reasonable notice); provided however, that in the case of each of
Section 5.6(a) and 5.6(b) hereof, the Purchasers shall, and shall cause its
Representatives to, be bound by the provisions of Section 5.5.
(c) For
so long as any shares of Series A Stock are outstanding, the Corporation shall
maintain sufficient authorized but unissued shares of the Corporation’s common
stock that are reserved for issuance upon conversion of Series A
Stock.
(d) The
Corporation hereby acknowledges that the Corporation’s common stock issued upon
conversion of any Series A Stock issued to the Purchasers would constitute
Registerable Securities pursuant to the Preemptive Rights
Agreement. The Corporation hereby acknowledges and agrees that it
will include all common stock of the Corporation issued upon
12
conversion
of the Series A Stock issued to the Purchasers in any resale prospectus or
prospectus supplement (a “Resale Prospectus”) filed by the Corporation under its
existing automatic shelf registration
statement filed on Form S-3 on May 9, 2008, with respect to the
resale of the Registerable Securities of each Holder (as defined in the
Preemptive Rights Agreement) pursuant to the terms of the Preemptive Rights
Agreement to the extent so requested by the Purchaser and subject to the terms
and conditions of the Preemptive Rights Agreement, which Resale Prospectus the
Corporation agrees to file with the SEC as soon as practicable after the date
hereof, and in any event no later than September 7, 2008.
(e) Notwithstanding
any provision in this Agreement, the Corporation hereby acknowledges and agrees
that the Purchasers have not waived any rights they may have under the
Preemptive Rights Agreement to acquire additional shares of Series A Stock
or other capital stock of the Corporation in the event the Underwriters exercise
their option to acquire any Option Securities (as defined in the Underwriting
Purchase Agreement). In the event any Option Securities are issued
pursuant to the Underwriting Purchase Agreement, the Purchasers shall be offered
additional securities of the Corporation pursuant to Section 3 of the
Preemptive Rights Agreement in connection with such offering and
sale. The
Corporation shall promptly notify the Purchasers upon any exercise of the
Underwriters’ overallotment option under the Underwriting Purchase
Agreement.
(f) 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.
6.1 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 Series A Stock under this
Agreement, and, except for representations and warranties set forth in
Xxxxxxx 0.0(x), (x), (x), (x),
(x), (x), (x), (x), (x), (x), (x) and (s), which shall survive indefinitely,
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 it at GTCR Xxxxxx Xxxxxx XX,
L.L.C., 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxx and Xxxx X. Xxxxx, 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., or at such other address
as the Corporation or the
13
Purchaser
may have specified to the other party 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 Purchasers 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 and
the Transactions, which amount shall not exceed $50,000.00.
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]
14
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,
By: /s/Xxxxx X.
Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title: President and Chief Executive
Officer
|
|
|
Confirmed,
accepted and agreed.
GTCR
FUND IX/A, L.P.
By:
GTCR Partners IX, L.P., its General Partner
By: GTCR Xxxxxx Xxxxxx XX, L.L.C., its General Partner
By: /s/Xxxxxx
Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Principal
|
|
|
GTCR
FUND IX/B, L.P.
By:
GTCR Partners IX, L.P., its General Partner
By: GTCR Xxxxxx Xxxxxx XX, L.L.C., its General Partner
By: /s/Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Title: Principal
|
|
|
GTCR
CO-INVEST III, L.P.
By:
GTCR Xxxxxx Xxxxxx XX, L.L.C., its General Partner
By: /s/Xxxxxx
Xxxxx
Name: Xxxxxx Xxxxx
Title: Principal
|
15
SCHEDULE I
SCHEDULE OF
PURCHASERS
|
NAME
OF PURCHASER
|
DOLLAR
AMOUNT OF
INVESTMENT
|
NO.
OF SHARES
OF
SERIES
A STOCK
|
|
GTCR
FUND IX/A, L.P.
|
$14,536,362.55
|
445.354
|
|
GTCR
FUND IX/B, L.P.
|
$2,423,751.26
|
74.257
|
|
GTCR
CO-INVEST III, L.P.
|
$109,398.50
|
3.352
|
|
TOTAL
|
$17,069,512.32
|
522.963
|
|
|
||
|
|
SCHEDULE II
LIST
OF SUBSIDIARIES
|
Name of Subsidiary
|
Jurisdiction of Incorporation or
Organization
|
|
The
PrivateBank and Trust Company
|
|
|
Lodestar Investment Counsel, LLC
(80% owned)
|
Delaware
|
|
The PrivateBank Securities,
LLC
|
Delaware
|
|
PB Real Estate,
LLC
|
|
|
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
|
|
|
PrivateBancorp
Statutory Trust II
|
Delaware
|
|
PrivateBancorp
Statutory Trust III
|
Connecticut
|
|
Bloomfield
Hills Statutory Trust I
|
Delaware
|
|
PrivateBancorp
Capital Trust IV
|
Delaware
|
