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EXHIBIT 10.1
PRIVATEBANCORP, INC.
STOCK PURCHASE AGREEMENT
Series A Junior Nonvoting Preferred Stock
Dated
as of June 10, 2008
GTCR
Fund IX/A, L.P.
GTCR
Fund IX/B, L.P.
GTCR
Co-Invest III, L.P.
c/o
GTCR Golder Rauner II, L.L.C.
6100
Sears Tower
Chicago,
Illinois 60606
This
Stock Purchase Agreement (the “Agreement”) is
entered into as of June 10, 2008, by and among
PrivateBancorp, Inc., a Delaware corporation (the
“Corporation”), GTCR Fund IX/A, L.P., a
Delaware limited partnership, GTCR Fund IX/B, L.P., a
Delaware limited partnership and GTCR Co-Invest III,
L.P., a Delaware limited partnership (each a
“Purchaser” and collectively, the
“Purchasers”).
WHEREAS , the Corporation and each of the Purchasers is a
party to that certain Preemptive and Registration Rights Agreement
dated as of December 11, 2007 by and among PrivateBancorp, Inc. and
the persons listed as a signatory thereto (the “Preemptive
Rights Agreement”);
WHEREAS , the Corporation has entered into a Purchase
Agreement dated June 5, 2008, (the “Underwriting
Purchase Agreement”), by and among the Corporation, Keefe,
Bruyette & Woods, Inc. and Robert W. Baird & Co.
Incorporated as Representatives of the several Underwriters listed
on Schedule I thereto (the “Underwriters”) providing
for the offer and sale of 4,000,000 shares of the
Corporation’s common stock (the “Firm
Securities”) to the Underwriters in an underwritten public
offering (the “Public Offering”);
WHEREAS , pursuant to Section 3.1 of the Preemptive Rights
Agreement, if the Corporation at any time makes a Qualified Equity
Offering (as such term is defined in the Preemptive Rights
Agreement), the Purchasers have the right, so long as the
Purchasers and its affiliates collectively own more than five
percent (5%) of the outstanding shares of the Corporation’s
common stock, to acquire from the Corporation for the same price
and on the same terms as such securities are proposed to be offered
to others, in the aggregate up to the amount of New Stock (as such
term is defined in the Preemptive Rights Agreement) required to
enable them to maintain their Institutional Investor Percentage
Interest (as such term is defined in the Preemptive Rights
Agreement);
WHEREAS , pursuant to Section 3.2(a) of the Preemptive
Rights Agreement, the Corporation notified the Purchasers of the
proposed Public Offering and of the execution of the Underwriting
Agreement by it and the Underwriters and the pricing terms of the
sale of the shares of the Corporation’s common stock to the
Underwriters in the Public Offering;
WHEREAS , pursuant to Section 3.3 of the Preemptive Rights
Agreement, the Purchasers notified the Corporation that they intend
to exercise their preemptive rights under Section 3.1 of the
Preemptive Rights Agreement to purchase the Designated Stock (as
such term is defined in the Preemptive Rights Agreement) with
respect to the Firm Securities; and
WHEREAS , pursuant to Section 3.3(d) of the Preemptive
Rights Agreement, the Purchasers have exercised their option to
purchase shares of the Corporation’s Series A Junior
Nonvoting Preferred Stock (the “Series A
Stock”).
NOW, THEREFORE , in consideration of the foregoing premises
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AUTHORIZATION;
SALE AND PURCHASE OF SHARES OF SERIES A
STOCK
1.1
Authorization of
Series A Stock . The Corporation has
duly authorized the issuance and sale of up to an aggregate of
522.963 additional shares of its Series A
Stock. A copy of the Certificate of Designations of
the Series A Stock (the “Certificate of
Designations”), is attached hereto as Exhibit A
. A copy of the form of amendment to the
Certificate of Designations (the “Amendment to the
Certificate of Designations”) is attached hereto as
Exhibit B
. Pursuant to Section 2 and Section 11 of
the Certificate of Designations, the holders of a majority of
the shares of Series A Stock currently outstanding have
approved the Amendment to the Certificate of Designation
increasing the number of shares of Series A
Stock.
1.2
Sale
and Purchase of Series A Stock . Subject to
the terms and conditions herein provided, the Corporation
hereby agrees to sell to the Purchasers, and the Purchasers
agree to purchase from the Corporation, at the Closing
provided for in Section 2 hereof, 522.963 shares of
Series A Stock from the Corporation at a purchase price
of $32,640.00 per share of Series A Stock, for an
aggregate purchase price equal to $17,069,512.32.
2. THE
CLOSING
2.1
Time
and Place of the Closing . Subject to
Section 3 hereof, payment of the purchase price for and
delivery of the Series A Stock shall be made at the
offices of Vedder Price P.C., or at such other place or in
such other manner as may be agreed upon by the Corporation and
the Purchasers, at 10:00 a.m., Chicago, Illinois time, on
June 11, 2008, or at such other time or date as the
Purchasers and the Corporation may mutually determine (such
date and time of payment and delivery being herein called the
“Closing Date”).
2.2
Delivery of and
Payment for the Series A Stock . At the
Closing, the Corporation shall deliver to each Purchaser
certificates evidencing the shares of Series A Stock, to
be purchased by it (as indicated opposite such
Purchaser’s name on Schedule I
hereto), dated the Closing Date and bearing appropriate
legends as hereinafter provided for, and registered on the
books and records of the Corporation in such Purchaser’s
name, against payment in full at the Closing of the aggregate
purchase price therefor by wire transfer of immediately
available funds for credit to such account as the Corporation
shall direct in writing prior to the Closing Date no later
than 9:00 a.m., Chicago, Illinois time, on the Closing
Date.
3. CONDITIONS
TO CLOSING
3.1
Conditions to
the Purchasers’ Obligations . The
obligations of each Purchaser hereunder are subject to the
accuracy, as of the date hereof and on the Closing Date, of
the representations and warranties of the Corporation
contained herein, and to the performance by the Corporation of
its obligations hereunder and to each of the following
additional terms and conditions:
(a) The
Corporation will have furnished to the Purchasers a
certificate, dated the Closing Date, executed on behalf of the
Corporation by each of the Chairman of the Board, the Chief
Executive Officer and President, and the Chief Financial
Officer of the Corporation, stating that:
(i) The
representations, warranties and agreements of the Corporation
in Section 4.1 hereof are true and correct as of the
Closing Date and the Corporation has complied with all its
agreements contained herein; and
(ii) Such
officers have carefully examined the Exchange Act Reports (as
defined in Section 4.1(f) hereof) and, in their opinion,
as of their respective dates (except to the extent superseded
by statements in later-filed documents comprising part of the
Exchange Act Reports), and as of the Closing Date, the
Exchange Act Reports do not contain any untrue statement of a
material fact nor omit to state any material fact required to
be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made,
not misleading;
(b) From
March 31, 2008 to the Closing Date, there shall not have
been any event or series of events, change, occurrence or
development or a state of circumstances or facts (including
any events, changes, occurrences, developments, state of
circumstances or facts existing prior to March 31, 2008
but which become known during such period), that, individually
or in the aggregate, has had, or would reasonably be expected
to have, a Material Adverse Effect (as defined in
Section 4.1(h) hereof).
(c) Any
authorizations, consents, commitments, agreements, orders or
approvals of, or declarations or filings with, or expirations
of waiting periods imposed by, any federal, state or local
court or governmental or regulatory agency or authority or
applicable stock exchange or trading market (any such court,
agency, authority, exchange or market, a “Governmental
Authority”) required for the consummation of the
Transactions, as defined herein, (including without limitation
the ability to continue to appoint a director pursuant to
Section 5.3 of the November 26, 2007 Purchase
Agreement (as defined in Section 4.1(s) below) shall have
been obtained or filed or shall have occurred and any such
orders shall have become final, non-appealable
orders.
(d) Prior
to the issuance of the Series A Stock, the Corporation
shall have made any filings, including the Amendment to the
Certificate of Designations, and received any necessary
approvals under the General Corporation Law of the State of
Delaware (the “DGCL”) in order to increase the
number of shares of Series A Stock to permit the sale of
the shares of
Series A
Stock to the Purchasers under this Agreement and to provide
for the issuance of shares of Series A Stock to the
Purchasers pursuant to this Agreement.
(e) Vedder
Price P.C., counsel to the Corporation, shall have furnished
to the Purchasers its written opinion, addressed to the
Purchasers and dated the Closing Date, substantially to the
effect set forth in Exhibit C
hereto.
(f) The
Underwriter shall have acquired the Firm Securities in the
Public Offering pursuant to the terms of the Underwriting
Purchase Agreement, as same is in effect on the date
hereof.
3.2
Conditions to
the Corporation’s Obligations .
(a) The
obligations of the Corporation hereunder are subject to the
accuracy, as of the date hereof and as of the Closing Date, of
the representations and warranties of each Purchaser contained
herein and to the performance by each Purchaser of its
obligations hereunder;
(b) Each
of the Purchasers shall have provided its written consent to
the adoption by the Corporation of the Amendment to the
Certificate of Designations; and
(c) The
Purchasers shall have received any and all necessary federal,
state, governmental agency and bank regulatory approvals
necessary for the purchase by the Purchasers of the
Series A Stock pursuant to this Agreement, and any and
all applicable waiting periods upon which such approvals are
conditioned shall have expired.
4. REPRESENTATIONS
AND WARRANTIES
4.1
Representations,
Warranties and Agreements of the Corporation
. The Corporation represents and warrants to, and
agrees with each Purchaser that as of the date
hereof:
(a) The
authorized capital stock of the Corporation consists of
89,000,000 shares of Common Stock, no par value, of which
28,697,921 shares are outstanding as of the date of this
Agreement and 1,000,000 shares of preferred stock, no par
value, of which 1,428.074 shares of Series A Stock are
outstanding as of the date of this Agreement.
(b) Since
December 31, 2007, the Corporation and each Subsidiary
have filed all material reports, registrations and statements,
together with any required amendments thereto, that it was
required to file with the Federal Reserve, the Securities and
Exchange Commission (the “SEC”), the Office of
Thrift Supervision (the “OTS”), the Federal
Deposit Insurance Corporation (the “FDIC”) and any
other applicable federal or state securities or banking
authorities, except where the failure to file any such report,
registration or statement would not reasonably be expected to
have a Material Adverse Effect. All such reports
and statements filed with any such regulatory body or
authority are collectively referred to herein as the
“Corporation Reports”. As of their
respective dates, the Corporation Reports complied as to form
in all material respects with all the rules and regulations
promulgated by the Federal Reserve, the OTS, the FDIC and any
other applicable foreign, federal or state securities or
banking authorities, as the case may be.
(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 Sarbanes-Oxley Act
of 2002, without qualification, when next due.
(d) Since
March 31, 2008, no change has occurred and no
circumstances exist (including any changes, occurrences,
circumstances or facts existing prior to March 31, 2008
but which become known on or after March 31, 2008) that
is not disclosed in the Exchange Act Reports which,
individually or in the aggregate, have had or are reasonably
likely to have a Material Adverse Effect.
(e) The
Corporation and each Subsidiary have all permits, licenses,
authorizations, orders and approvals of, and have made all
filings, applications and registrations with, any governmental
entities that are required in order to carry on their business
as presently conducted and that are material to the business
of the Corporation or such Subsidiary, except where the
failure to have such permits, licenses, authorizations, orders
and approvals or the failure to make such filings,
applications and registrations would not, individually or in
the aggregate, reasonably be expected to have a Material
Adverse Effect; and all such permits, licenses, certificates
of authority, orders and approvals are in full force and
effect and, to the knowledge of the Corporation, no suspension
or cancellation of any of them is threatened, and all such
filings, applications and registrations are
current.
(f) The
Corporation has timely filed all documents required to be
filed with the SEC pursuant to Section 13(a) or 15(d) and
Section 14(a) of Securities Exchange Act of 1934, as
amended (the “Exchange Act”). The
Corporation has furnished to each Purchaser or otherwise made
available a copy of each of the
following: (i) the Corporation’s Annual
Report on Form 10-K for the year ended December 31,
2007, as filed with the SEC; (ii) the Corporation’s
proxy statement for its 2008 Annual Meeting of Stockholders
held on May 22, 2008, as filed with the SEC;
(iii) the Corporation’s Quarterly Report on
Form 10-Q for the quarter ended March 31, 2008, as
amended, as filed with the SEC; and (iv) the
Corporation’s Current Reports on Form 8-K as filed
with the SEC since January 1, 2008 (items (i)
through (iv)
collectively,
the “Exchange Act Reports”), which Exchange Act
Reports include, among other things, audited consolidated
financial statements of the Corporation for its fiscal years
ended December 31, 2006 and 2007, and unaudited
interim financial statements of the Corporation for its fiscal
quarter ended March 31, 2008. As of the date
hereof and as of the Closing Date, each of the documents
comprising a part of the Exchange Act Reports did not contain
and will not contain any untrue statement of material fact or
omitted to state and will not omit to state any material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(g) Based
upon the representations and warranties of each Purchaser
contained herein, the Corporation is not required by
applicable law or regulation in connection with the offer,
sale and delivery of the Series A Stock to the
Purchasers, in the manner contemplated by this Agreement, to
register the Series A Stock under the Securities Act of
1933, as amended (the “Securities Act”), or any
state securities laws.
(h) The
Corporation and each of the Corporation’s subsidiaries
listed on Schedule II
hereto (collectively the “Subsidiaries”)
(i) have been duly incorporated or organized and are
validly existing in good standing under the laws of their
respective jurisdictions of incorporation or organization,
(ii) are duly qualified to do business and are in good
standing as foreign corporations or organizations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses
requires such qualification, except where the failure to be so
qualified would not reasonably be expected to result in any
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Corporation and its Subsidiaries (taken as a
whole), or which would not reasonably be expected to
materially and adversely affect the assets or properties of
the Corporation and its Subsidiaries (taken as a whole), or
which would not reasonably be expected to materially and
adversely affect the Transactions as defined herein
(individually or in the aggregate, a “Material Adverse
Effect”, except that the mere filing of any action,
claim, suit or order relating to any actual or threatened
litigation involving the Corporation, any of its Subsidiaries
or any of its employees after the date of this Agreement
(rather than the actual facts and circumstances underlying
such action, claim, suit or order) shall not be deemed a
“Material Adverse Effect”); and (iii) have
all corporate power and authority necessary to own or hold
their respective properties and to conduct the businesses in
which they are currently engaged.
(i) All
of the issued shares of capital stock of the Corporation have
been duly and validly authorized and issued, are fully paid
and non-assessable and no such shares were issued in violation
of the preemptive or similar rights of any security holder of
the Corporation. Except as set forth in the
Preemptive Rights Agreement, no person has any preemptive or
similar right to purchase any shares of capital stock of the
Corporation. Except as disclosed in the Exchange
Act Reports and for the 5,524,550 shares of Common Stock
reserved for issuance under existing awards under the
Corporation’s equity compensation or other employee
benefit or compensation plans, arr
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