Exhibit 10.1
VOTING AGREEMENT
This VOTING AGREEMENT , dated
as of September 4, 2008 (this “ Agreement
”), is by and between Taylor Capital Group, Inc., a Delaware
corporation (the “ Company ”) and the
stockholders listed on the signature pages hereto under the heading
“ Stockholders ” (each, a “
Stockholder ,” and collectively, the “
Stockholders ”).
RECITALS
WHEREAS , the Company and certain investors (each a
“Buyer” and collectively, the “
Buyers ”) have entered into that certain Securities
Purchase Agreement, dated as of September 4, 2008 (the “
Securities Purchase Agreement ”), pursuant to which,
among other things, the Company has agreed to issue and sell to the
Buyers, and the Buyers have agreed to purchase, shares of Series A
Non-Cumulative Convertible Perpetual Preferred Stock of the Company
(the “ Preferred Shares ”), which will, among
other things, be convertible into shares of the Company’s
common stock, par value $0.01 value per share (the “
Common Stock ”), in accordance with the terms to be
set forth in the Third Amended and Restated Certificate of
Incorporation of the Company;
WHEREAS, in the event of a Potential Delay, under certain
circumstances set forth in the Securities Purchase Agreement, the
parties may have an initial closing with respect to 2,400,000
shares of Series B Convertible Preferred Stock of the Company
(the “Designated Preferred”) on or before
September 30, 2008, which Designated Preferred would, if
issued, be mandatorily exchangeable for 2,400,000 Preferred Shares
upon receipt of Stockholder Approval (as defined in the Securities
Purchase Agreement), in accordance with the terms and conditions
set forth in the Securities Purchase Agreement.;
WHEREAS , as of the date hereof, the Stockholders own
collectively 4,815,880 shares of Common Stock, which represent in
the aggregate approximately 43.77% of the total issued and
outstanding capital stock of the Company;
WHEREAS , as a condition to the willingness of the
Buyers to enter into the Securities Purchase Agreement and to
consummate the transactions contemplated thereby (collectively, the
“ Transaction ”), the Company has agreed to
enter into and enforce the terms hereof and have required that each
Stockholders agree, and in order to induce the Buyers to enter into
the Securities Purchase Agreement, each Stockholder has agreed, to
enter into this Agreement with respect to all of the Common Stock
now owned and which may hereafter be acquired by such Stockholder
and any other securities, if any, which such Stockholder is
currently entitled to vote, or after the date hereof becomes
entitled to vote, at any meeting of stockholders of the Company
(collectively, the “ Owned Shares ”);
and
WHEREAS , capitalized terms used in this Agreement and
not defined herein shall have the meanings ascribed to such terms
in the Securities Purchase Agreement.
NOW, THEREFORE
, in consideration of the foregoing
and the mutual covenants and agreements contained herein, and
intending to be legally bound hereby, the parties hereto hereby
agree as follows:
ARTICLE I
VOTING AGREEMENT OF THE
STOCKHOLDERS
SECTION 1.01. Voting
Agreement . Subject to the terms and conditions hereof, each
Stockholder hereby agrees that at any meeting of the stockholders
of the Company (including any adjournment or postponement thereof),
however called, such Stockholder will (y) appear at such a
meeting, or at the Stockholder’s option, otherwise cause its
Owned Shares to be counted as present there at, for purposes of
calculating a quorum, and (z) vote, or cause to be voted, all
of its Owned Shares (A) in favor of the Proposals as described
in Section 4(a) of the Securities Purchase Agreement,
(B) in favor of any other matter to be approved by the
stockholders of the Company to facilitate the transactions
contemplated by the Transaction Documents, including the
Transaction, and (C) against any proposal, action or agreement
not contemplated by the Transaction Documents that would reasonably
be expected to impede, interfere with, delay or attempt to
discourage the transactions contemplated by the Transaction
Documents. Each Stockholder acknowledges receipt and review of a
copy of the Securities Purchase Agreement and the other Transaction
Documents.
SECTION 1.02. Proxy . Each
Stockholder hereby revokes any and all previous proxies and powers
of attorney granted with respect to its Owned Shares, and no
subsequent proxy or power of attorney (except in furtherance of
Stockholder’s obligations under Section 1.01 hereof)
shall be given or written consent executed (and if given or
executed, shall not be effective) by Stockholder with respect
thereto so long as this Agreement remains in effect. By entering
into this Agreement, each Stockholder hereby grants a proxy
appointing Bruce W. Taylor (“Proxy”), with full power
of substitution, as such Stockholder’s attorney-in-fact and
proxy, for and in such Stockholder’s name, to be counted as
present and to vote (including by written consent, if applicable)
or otherwise to act on behalf of such Stockholder with respect to
its Owned Shares solely with respect to and in furtherance of the
matters described in, and in the manner contemplated by,
Section 1.01 hereof. The proxy granted by each Stockholder
pursuant to this Section 1.02 is, subject to the penultimate
sentence of this Section 1.02, irrevocable and is coupled with
an interest, in accordance with Section 212(e) of the Delaware
General Corporation Law and is granted in order to secure each
Stockholder’s performance under this Agreement and also in
consideration of the Buyers entering into this Agreement and the
Securities Purchase Agreement. If any Stockholder fails for any
reason to be counted as present or to vote such Stockholder’s
Owned Shares in accordance with the requirements of
Section 1.01 above, then such Proxy shall have the right to
cause to be present or vote such Stockholder’s Owned Shares
in accordance with the provisions of Section 1.01. The Proxy
agrees that, in the event any Stockholder shall not have fully
complied with the provisions of Section 1.01 hereof with
respect to any such meeting of the Company stockholders (including
any adjournment or postponement thereof), the Proxy shall in
accordance with this Section 1.02 cause all Owned Shares of
such Stockholder to be counted as present at such stockholder
meeting, for purposes of calculating a quorum, and to cause all
Owned Shares of such Stockholder to be voted with respect to and in
furtherance of the matters set forth in, and in the manner
contemplated by, Section 1.01 hereof. The proxy granted by
each Stockholder shall be automatically revoked upon termination of
this Agreement in accordance with its terms. Each Stockholder
agrees, from the date hereof until the termination of this
Agreement, not to attempt to revoke, frustrate the exercise of, or
challenge the validity of, the irrevocable proxy granted pursuant
to this Section 1.02.
2
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder hereby represents
and warrants to the Company as follows:
SECTION 2.01. Authority Relative
to This Agreement . Such Stockholder has all necessary power
and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except (a) as such
enforceability may be limited by general principles of equity or to
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or other similar laws relating to, or affecting
generally, the enforcement of applicable creditors’ rights
and remedies; (b) where the remedy of specific performance or
other forms of equitable relief may be subject to certain equitable
defenses and principles and to the discretion of the court before
which the proceeding may be brought; and (c) where rights to
indemnity and contribution thereunder may be limited by applicable
law and public policy.
SECTION 2.02. No Conflict .
The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder
shall not, (a) conflict with or violate any fede
