EXHIBIT 2.3
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FORM OF
ADVISORY BOARD AND SUPPORT AGREEMENT
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This Advisory Board and Support Agreement dated as of __________, 1999 (the
"Agreement"), is entered into by and between ______________ ("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
(including Covenantor) 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, pursuant to the Merger, Private will commit the capital and other
resources necessary to complete the business plan of TSFC by establishing the
St. Xxxxxxx office of Private (the "Office") and, in the event Private receives
regulatory approval to establish the Office, Covenantor will be appointed as a
member of the Fox Valley Advisory Board of Private ("Advisory Board"); and
WHEREAS, Covenantor acknowledges that as member of the Advisory Board 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;
NOW, THEREFORE, in consideration of and as a condition and inducement to
Private entering into the Merger Agreement and the appointment of Covenantor to
the Advisory Board, 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 advisory director relationship (the "Relationship")
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 Relationship with Private and for a period of one (1) year
after termination of his Relationship for any reason (the "Non-Compete Period");
provided however, 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 advisory director 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) 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.
(c) 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 Relationship with Private, he owes a
duty of loyalty to Private and agrees to devote reasonable 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 terms hereof in every way reasonably practicable by the
introduction of business opportunities, new customers, cross-marketing
opportunities, by membership on 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.
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
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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. Indemnification. In the event that legal action is instituted against
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Covenantor during or after the term hereof by a third party (or parties) based
on the performance or nonperformance by Covenantor of his duties including, but
not limited to, his duties as a member of the Advisory Board, Private will
assume the defense of such action by its attorneys or attorneys selected by
Covenantor reasonably satisfactory to Private and advance the costs and expenses
thereof (including reasonable attorneys' fees) and will indemnify the Covenantor
with respect to damages, fines and losses resulting from each legal action
without prejudice to or waiver by Private of its rights and remedies against
Covenantor.
6. 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.
7. 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.
8. 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:
Mr.________________________
___________________________
___________________________
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.
9. 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.
10. 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.
11. 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.
12. 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.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the party has executed this Advisory Board and Support
Agreement on the date first above written.
[INSERT NAME]
______________________________________
PRIVATEBANCORP, INC.
By:___________________________________
Its:__________________________________
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