PRIVATEBANCORP, INC. STOCK PURCHASE AGREEMENT Dated as of 3:00 p.m. EST, November 26, 2007
EXHIBIT
10.1
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 5,581,680 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.
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
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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 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.
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(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
(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
4
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 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
5
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 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
6
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.
(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.
7
(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.
(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
8
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.
(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.
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(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 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
10
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 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.
11
(“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.
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
12
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 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.
13
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 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.
14
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 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.
15
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 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
16
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
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.
6.1 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:
17
00
Xxxx
Xxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxxxxxx
X. Xxxxxx, Esq.
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]
18
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: |
| Name: | Xxxxx X. Xxxxxxx | |
| Title: | President and Chief Executive Officer |
SEPARATE
SIGNATURE PAGE FOR EACH PURCHASER ATTACHED
19
SIGNATURE
PAGE
|
________________________________________________________
PURCHASER
NAME
|
____________________________________________________________
No.
of Shares to be Purchased
|
|
$28.71
|
|
|
Price
per Share
|
|
|
By:______________________________________________________
Name:________________________________________________
Title:_________________________________________________
|
Date:______________________________________________________
|
|
Exact
Name for Registration of Shares:
________________________________________________________
|
|
|
Registered
Address:
________________________________________________________
________________________________________________________
________________________________________________________
|
Mailing
Address:
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
|
|
Contact
Person: ___________________________________________
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):
___________________________________________________________________________________________________________________________________________________________________
20
