AMENDMENT NO. 1 TO PREEMPTIVE AND REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.1
AMENDMENT
NO. 1
TO
THIS
AMENDMENT NO. 1 TO PREEMPTIVE AND REGISTRATION RIGHTS AGREEMENT (this
“Amendment”)
is entered into as of the Effective Date (as defined below) by and among PrivateBancorp,
Inc., a Delaware corporation (the “Company”),
GTCR Fund IX/A, L.P., a Delaware limited partnership (the “Institutional
Investor”), GTCR Fund IX/B, L.P., a Delaware limited
partnership (“GTCR
IX/B”) and GTCR Co-Invest III, L.P., a Delaware limited partnership
(“GTCR
Co-Invest” and together with the Institutional Investor and GTCR IX/B,
the “Majority
Holders”). This Amendment amends that certain Preemptive and
Registration Rights Agreement, dated as of December 11, 2007, by and among
the Company and the Majority Holders (the “Agreement”). Capitalized
terms used herein and not otherwise defined herein shall have the meaning given
to them in the Agreement.
RECITALS
WHEREAS,
the Majority Holders are holders of a majority of the Registrable Securities
currently outstanding;
WHEREAS,
as an inducement for the Majority Holders to effect a conversion of their
outstanding shares of Series A Stock into Non-voting Common Stock of the
Company, the Company and the Majority Holders have agreed to amend the Agreement
on the terms and conditions set forth herein;
and
WHEREAS,
the parties to this Amendment intend for the amendments agreed to herein to be
effective as of the Effective Date, as such term is defined in the letter
agreement dated as of June 17, 2009 among the Corporation and the Majority
Holders;
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:
SECTION 1 AMENDMENTS
TO THE AGREEMENT.
Effective
as of the Effective Date, the Agreement is hereby amended as follows pursuant to
section 4.7 of the Agreement:
1.1 The
following definitions appearing under section 1.1 of the Agreement are
hereby amended and restated in their entirety as follows:
“Institutional
Investor Percentage Interest” means the aggregate percentage beneficial
ownership of the Institutional Investor and its Affiliates of the Company’s
outstanding shares of Common Stock on the date of determination (assuming
conversion of the Non-voting Common Stock and any Series A
Stock).
“New
Stock” means Common Stock, Non-voting Common Stock or Series A
Stock, or securities convertible into or exchangeable for Common Stock of the
Company
or which
have voting rights or participation features with Common Stock of the Company,
offered in a public or nonpublic offering by the Company.
“Qualified
Equity Offering” means a public or nonpublic offering of Common Stock,
Non-voting Common Stock or Series A Stock, or securities convertible into
or exchangeable for Common Stock of the Company or which have voting rights or
participation features with Common Stock of the Company (collectively, “New
Stock”) solely for cash and not pursuant to a Special Registration; provided,
however, that none of the following offerings shall constitute a
Qualified Equity Offering: (a) any offering pursuant to any
stock purchase plan, stock ownership plan, stock option or equity compensation
plan or other similar plan where stock is being issued or offered to a trust,
other entity or otherwise, to or for the benefit of any employees, potential
employees, officers or directors of the Company, or (b) any offering made
as consideration pursuant to an acquisition (whether structured as a merger or
otherwise), a partnership or joint venture or strategic alliance or investment
by the Company or similar non-capital raising transaction (but not an offering
to raise capital to fund an acquisition).
“Registrable
Securities” means (a) Shares of Common Stock; (b) any shares of
Common Stock issued or issuable upon the conversion of any Series A Stock
issued pursuant to the Stock Purchase Agreement; (c) any shares of
Non-voting Common Stock issued upon conversion of Series A Stock issued
pursuant to the Stock Purchase Agreement or the stock purchase agreement dated
as of June 10, 2008 (the “2008 Purchase Agreement”) among the Company and
the Investors identified therein; (d) any other shares of Common Stock held
by the Holders; and (e) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right, preferred stock
or other security which is issued as) a dividend or other distribution with
respect to, or in exchange for or in replacement of, the Shares or any other
shares of Common Stock held by the Holders, provided,
however, that Registrable Securities shall not include any shares of
Common Stock which have been sold to the public by a Holder either pursuant to a
registration statement or Rule 144 under the Securities Act, or which have
been sold in a private transaction in which the transferor’s rights under this
Agreement are not assigned.
“Registrable
Securities then outstanding” shall be the number of shares determined by
calculating the total number of shares of the Company’s Common Stock that are
Registrable Securities and either (a) are then issued and outstanding or
(b) are issuable pursuant to exercisable or convertible securities
(including Non-voting Common Stock and any Series A Stock).
“Shares”
mean shares of Common Stock and/or Series A Stock issued by the Company to
the Investors pursuant to the Stock Purchase Agreement or 2008 Purchase
Agreement and shares of Non-voting Common Stock issued upon conversion of any
Series A Stock.
1.2 Section 1.1
of the Agreement is further amended to add the following definition thereto in
appropriate alphabetical order:
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“Non-voting
Common Stock” means the Company’s Non-voting Common Stock, no par value
per share, issuable upon conversion of the Series A Stock.
1.3 Section 3.1
of the Agreement is amended to add the words “Non-voting Common Stock and any”
immediately prior to the words “Series A Stock” appearing
therein.
1.4 Section 3.3(d)
of the Agreement is amended and restated in its entirety to read as
follows:
(d) Notwithstanding
any provision in this Agreement to the contrary, in the event that the
Institutional Purchaser and its Affiliates are entitled to acquire Common Stock
pursuant to this Section 3, then the Institutional Purchaser and its
Affiliates may at their option acquire securities in the form of Non-voting
Common Stock or Series A Stock or another series of preferred stock of the
Corporation with terms, conditions and provisions that shall be established upon
the issuance of such preferred stock that are similar to and consistent with the
terms, conditions and provisions upon which the Non-voting Common Stock or, at
the discretion of the Institutional Purchaser, the Series A Stock were
established.
1.5 Section 3.6
of the Agreement is amended to add the phrase “Non-voting Common Stock,”
immediately prior to the words “Series A Stock” appearing
therein.
SECTION 2 MISCELLANEOUS
2.1 Effect
of Amendment. Except as specifically amended above, the
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith and currently in effect shall remain in full
force and effect, and are hereby ratified and confirmed. At all times
on and after the Effective Date, each reference to the Agreement in any other
document, instrument or agreement shall mean and be a reference to the Agreement
as modified by this Amendment.
2.2 Successors
and Assigns. Except as otherwise provided herein, the terms
and conditions of this Amendment shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including transferees
of any shares of Registrable Securities). Nothing in this Amendment,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Amendment, except as
expressly provided in this Amendment.
2.3 Governing
Law. This Amendment shall be governed by and construed under
the laws of the State of Illinois as applied to agreements among Illinois
residents entered into and to be performed entirely within the State of
Illinois.
2.4 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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2.5 Titles
and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
2.6 Severability. If
one or more provisions of this Amendment are held to be unenforceable under
applicable law, such provision shall be excluded from this Amendment and the
balance of the Amendment shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth in the first paragraph
hereof.
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PRIVATEBANCORP,
INC.
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By:/s/Xxxxx
X. Xxxxxxx
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Name: Xxxxx
X.
Xxxxxxx
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Title: President
and Chief Executive Officer
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Address:
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000
Xxxxx XxXxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: General
Counsel
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GTCR
FUND IX/A, L.P.
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By:
GTCR Partners IX, L.P., its General Partner
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| By: |
GTCR
Xxxxxx Xxxxxx XX, L.L.C., its
General
Partner
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| By: | /s/Xxxxxx X. Xxxxx | |||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: Principal | ||||||
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GTCR
FUND IX/B, L.P.
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By:
GTCR Partners IX, L.P., its General Partner
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| By: |
GTCR
Xxxxxx Xxxxxx XX, L.L.C., its
General
Partner
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| By: | /s/Xxxxxx X. Xxxxx | |||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: Principal | ||||||
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GTCR
CO-INVEST III, L.P.
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| By: GTCR Xxxxxx Xxxxxx XX, L.L.C., its General Partner | ||||||
| By: | /s/Xxxxxx X. Xxxxx | |||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: Principal | ||||||
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