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EXHIBIT 10.1
PRIVATEBANCORP, INC.
STOCK PURCHASE AGREEMENT
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, Kaufman & 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
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.
(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, Kaufman & 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
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 Sarbanes-Oxley 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
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
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.
(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
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