EXHIBIT 2.6
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FORM OF
NON-COMPETITION AND SUPPORT AGREEMENT
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This Non-Competition Agreement dated as of _________ ____, 1999 (the
"Agreement"), is entered into by and between Xxxxxx X. Xxxxxxxxxx ("Covenantor")
and PrivateBank & Trust Company ("Private").
W I T N E S S E T H
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WHEREAS, PrivateBancorp, Inc., a Delaware corporation, ("Bancorp") owns
100% of the issued and outstanding shares of Private, and Towne Square Financial
Corporation, a Delaware corporation ("TSFC"), and the stockholders of TSFC are
currently negotiating an Agreement and Plan of Reorganization dated as of June
24, 1999 (the "Merger Agreement") providing, among other things, for the
acquisition by Bancorp of all of the outstanding common stock of TSFC (the
"Merger");
WHEREAS, Covenantor and Private have entered into an Employment Agreement
dated as of _________ ____, 1999 ("Employment Agreement") providing, among other
things, for Covenantor to serve as Managing Director of the St. Xxxxxxx office
of Private (the "Office"), or in the event Private does not receive regulatory
approval to establish the Office, a position with comparable duties and
responsibilities, and, pursuant to the Merger, Private will commit the capital
and other resources necessary to complete the business plan of TSFC by
establishing such St. Xxxxxxx office of Private;
WHEREAS, Covenantor acknowledges that as Managing Director of the Office he
will be responsible for the growth, development and success of the Office, and
he will become familiar with the customers and related customer information of
Private; and
NOW, THEREFORE, in consideration of and as a condition and inducement to
Private entering into the Merger Agreement and entering into the Employment
Agreement with Covenantor, and in consideration of the premises and the mutual
covenants, representations, warranties and agreements herein contained,
Covenantor and Private agree as follows:
1. Covenants.
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(a) Covenantor acknowledges that Private by nature of its business
has a legitimate and protectable interest in its prospects, clients, customers
and employees with whom it has established or may establish business
relationships as a result of a substantial investment of time and money by
Private, and but for his employment hereunder, he would not have had contact
with, or the financial or other resources necessary to take advantage of the
business opportunities related to such prospects, clients, customers and
employees. Covenantor agrees that during the period of his employment with
Private and for a period of one (1) year after termination of his employment for
any reason (the "Non-Compete Period"); provided, however, that the Non-Compete
Period shall
remain in full force for so long as Covenantor receives severance benefits
pursuant to the Employment Agreement; and further provided, that in all events
the Non-Compete Period shall remain in full force and effect for a minimum of
three (3) years from the date hereof, he will not (except in his capacity as an
employee of Private) directly or indirectly, for his own account, or as an
agent, employee, director, owner, partner, or consultant of any corporation,
firm, partnership, joint venture, syndicate, sole proprietorship or other entity
which has a place of business (whether as a principal, division, subsidiary,
affiliate, related entity, or otherwise) located within the Market Area (as
hereinafter defined):
(i) solicit or induce, or attempt to solicit or induce any
prospect, client or customer of Private or its affiliates not to do
business with Private or any of its subsidiaries or affiliates; or
(ii) solicit or induce, or attempt to solicit or induce, any
employee or agent of Private or any of its affiliates to terminate his or
her relationship with Private or any of its affiliates.
(b) In the event Covenantor is entitled to benefits pursuant to
Paragraph 8(c) in the Employment Agreement relating to a change in control, the
non-compete obligations (as provided for in Section 1(a) above) shall not apply.
(c) For purposes of this Agreement, "Market Area" shall be an area
encompassed within a ten (10) mile radius surrounding the Office's intended
location of 00 Xxxxx Xxxxxx Xxxxxx, Xx. Xxxxxxx, Xxxxxxxx 00000.
(d) The foregoing provisions shall not be deemed to prohibit (1)
Covenantor's ownership, not to exceed five percent (5%) of the outstanding
shares, of capital stock of any corporation or (2) Covenantor serving as a
director of other corporations and entities to the extent these directorships do
not inhibit the performance of his duties hereunder or conflict with the
business of Private.
2. Support of Private and the Office; Duty of Loyalty. Covenantor
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recognizes, that during the period of his employment with Private, he owes an
undivided duty of loyalty to Private and agrees to devote his entire business
time and attention to the performance of said duties and responsibilities.
Covenantor agrees to use his best efforts to promote, support and develop the
business of Private and the Office during the term hereof in every way
practicably feasible, by the introduction of business opportunities, new
customers, cross-marketing opportunities, by leadership of the Advisory Board of
the Office, by other actions of civic involvement and the like. Covenantor also
promises not to take any action, or allow any action to occur, whether
intentional or not, which is not taken in good faith and/or is against the best
interests of Private and the Office, or to disparage such entities, or to cause
such entities to be subject to public criticism or disregard.
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3. Remedies. Covenantor acknowledges that the covenants and agreements
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which he has made in this Agreement are reasonable and are required for the
reasonable protection of Bancorp's purchase of TSFC and the establishment of the
Office. Covenantor agrees that the breach of any covenant or agreement
contained herein will result in irreparable injury to Private, and that in
addition to all other remedies provided by law or in equity with respect to the
breach of any provision of this Agreement, Private, Bancorp and their successors
and assigns will be entitled to enforce the specific performance by Covenantor
of his obligations hereunder and to enjoin him from engaging in any activity in
violation hereof and that no claim by Covenantor against Private, Bancorp or
their successors or assigns will constitute a defense or bar to the specific
enforcement of such obligations. In the event of a lawsuit, the prevailing
party shall be entitled to recover from the other party reasonable attorney's
fees and costs of litigation. In the event of a breach or a violation by
Covenantor of any of the provisions of this Agreement, the running of the Non-
Compete Period (but not of Covenantor's obligations hereunder) shall be tolled
during the period of the continuance of any actual breach or violation.
4. Partial Invalidity. The various covenants and provisions of this
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Agreement are intended to be severable and to constitute independent and
distinct binding obligations. Should any covenant or provision of this
Agreement be determined to be void and unenforceable, in whole or in part, it
shall not be deemed to affect or impair the validity of any other covenant or
provision or part thereof, and such covenant or provision or part thereof shall
be deemed modified to the extent required to permit enforcement. Without
limiting the generality of the foregoing, if the scope of any covenant contained
in this Agreement is too broad to permit enforcement to its full extent, such
covenant shall be enforced to the maximum extent permitted by law, and
Covenantor hereby agrees that such scope may be judicially modified accordingly.
5. Assignment. Covenantor agrees that this Agreement may be assigned by
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Private to any direct or indirect majority owned affiliate of Private and/or
Bancorp, and that upon such assignment, such affiliate shall acquire all of
Private's rights under this Agreement, including, without limitation, the right
of assignment set forth in this Section 5.
6. No Strict Construction. The language used in this Agreement will be
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deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any person.
7. Notice. Any notice or other communication required or permitted to be
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given hereunder shall be determined to have been duly given to any party or
parties:
(a) upon delivery to the address of such party or parties specified
below if delivered in person or by courier, or if sent by certified or
registered mail (return receipt requested), postage prepaid, or
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(b) one business day following dispatch if transmitted by confirmed
telecopy or other means of facsimile, in any case to the party or parties at the
following address(es) or telecopy number(s), as the case may be:
If to Covenantor:
Xx. Xxxxxx X. Xxxxxxxxxx
2nd & Main Partners, LLC
0000 Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
If to Private:
PrivateBancorp, Inc.
Ten North Dearborn
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Vedder, Price, Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X'Xxxxxx, Esq.
8. Waiver of Breach. The waiver by either party hereto of a breach of
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any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach.
9. Applicable Law. This Agreement shall be governed by, and construed
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and enforced in accordance with, the laws of the State of Illinois, without
giving effect to the principles of conflicts of laws thereof.
10. Entire Understanding. This Agreement and the agreements referred to
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herein constitute the entire understanding and shall not be changed, altered, or
modified except by the written consent of both parties.
11. Binding Effect. This Agreement shall be binding upon Covenantor's
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executors, administrators, legal representatives, heirs and legatees and the
successors and permitted assigns of Private.
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[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the party has executed this Non-Competition and Support
Agreement on the date first above written.
XXXXXX X. XXXXXXXXXX
_________________________________________
PRIVATEBANCORP, INC.
By:______________________________________
Its:_____________________________________
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