UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 30, 2014
MB FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
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Maryland |
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0-24566-01 |
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36-4460265 |
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(State or other jurisdiction
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(Commission File No.) |
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(IRS Employer
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800 West Madison Street, Chicago, Illinois |
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60607 |
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(Address of principal executive offices) |
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(Zip Code) |
Registrant’s telephone number, including area code: (888) 422-6562
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
As noted under Item 8.01 below, on June 30, 2014, the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”) approved the merger (the “Merger”) of Taylor Capital Group, Inc. (“Taylor Capital”) with MB Financial, Inc. (“MB Financial”), as contemplated by the Agreement and Plan of Merger, dated as of July 14, 2013 (as amended by the amendment described below, the “Merger Agreement”), between the two companies. The transaction remains subject to the approval of the Office of the Comptroller of the Currency (the “OCC”) and the satisfaction of other customary conditions to closing.
Also on June 30, 2014, MB Financial and Taylor Capital entered into an amendment (the “Amendment”) to the Merger Agreement. The Amendment extends the date after which either MB Financial or Taylor Capital may terminate the Merger Agreement if the Merger has not yet occurred (the “Termination Date”), from June 30, 2014 to September 30, 2014, provided that the Termination Date may be extended beyond September 30, 2014 one or more times, but not to a date later than December 31, 2014, by either MB Financial or Taylor Capital if the only condition to the closing of the Merger that has not been satisfied by the tenth day prior to the then-current Termination Date is the receipt of a requisite regulatory approval. The foregoing description of the Amendment is qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed herewith as Exhibit 2.1 and is incorporated herein by reference.
As previously reported, Taylor Capital had been notified by its regulators that its subsidiary bank, Cole Taylor Bank, may be cited with a violation of Section 5 of the Federal Trade Commission Act. This matter related to the account opening process associated with a former deposit program relationship Cole Taylor Bank had with an organization that provides electronic financial disbursements and payment services to the higher education industry (the “Former Counterparty”). Cole Taylor Bank exited the relationship with the Former Counterparty in August 2013. Effective June 26, 2014, in connection with this matter, Cole Taylor Bank entered into an Order to Cease and Desist and Order of Assessment of Civil Money Penalty Issued Upon Consent Pursuant to the Federal Deposit Insurance Act and the Illinois Banking Act, As Amended (the “Consent Order”), with the Federal Reserve Board and the State of Illinois Department of Financial and Professional Regulation, Division of Banking (the “Illinois Department”). Cole Taylor Bank was assessed civil money penalties under the Consent Order of $3,510,000 by the Federal Reserve Board and $600,000 by the Illinois Department. The Consent Order also imposes a secondary obligation on Cole Taylor Bank to make restitution to account holders affected by the violation to the extent any such restitution that the Former Counterparty is ordered by the Federal Reserve Board to pay is not satisfied by the Former Counterparty, subject to a maximum of the lesser of: (i) $30,000,000; or (ii) the total amount of such restitution that relates to fees collected by the Former Counterparty from affected account holders between May 4, 2012 and June 30, 2014.
Concurrent with entering into the Amendment, MB Financial and Taylor Capital entered into a letter agreement under which each company agreed that none of the approval, execution or official issuance or entry of the Consent Order will constitute a “Material Adverse Effect” pursuant to the Merger Agreement (the “MAE Letter Agreement”). The companies further agreed that solely for purposes of determining any Material Adverse Effect, the liability or obligation, damage, cost or expense of Cole Taylor Bank imposed by, or otherwise relating to, the Consent Order will be limited to the sum of $4,710,000 and 40% of any depositor restitution contemplated under the Consent Order which is ordered or requested by the Federal Reserve Board to be paid, or is actually paid, by Cole Taylor Bank prior to the closing of the Merger. The foregoing description of the MAE Letter Agreement is qualified in its entirety by reference to the full text of the MAE Letter Agreement, a copy of which is filed herewith as Exhibit 2.2 and is incorporated herein by reference.
Also concurrent with entering into the Amendment, MB Financial entered into a letter agreement (the “Escrow Letter Agreement”) with certain principal stockholders of Taylor Capital (the “Principal Stockholders”) collectively owning approximately 50% of the outstanding shares of Taylor Capital common stock and Taylor Capital nonvoting convertible preferred stock, pursuant to which the Principal Stockholders have agreed to be responsible for repayment of 60% of the restitution payments made by Cole Taylor Bank or MB Financial Bank, N.A., a wholly owned subsidiary of MB Financial (“MB Financial Bank”), as successor to Cole Taylor Bank,
under the Consent Order for a specified period of time calculated on an after-tax basis if MB Financial realizes a tax benefit therefrom. Aside from the Principal Stockholders, no Taylor Capital stockholders are subject to the provisions of the Escrow Letter Agreement, and the form, timing and amount of merger consideration to be paid to all stockholders of Taylor Capital, aside from the Principal Stockholders, in conjunction with the Merger will not be not affected by the Escrow Letter Agreement.
The Escrow Letter Agreement provides that, during the four-year period after the closing of the Merger, the payment obligation of the Principal Stockholders will be secured by their deposit into escrow of cash or a letter of credit. The Principal Stockholders, other than two funds whose obligations represent approximately 15% of the total obligations of all Principal Stockholders, will remain obligated for an additional four years on an unsecured basis. The two funds will remain obligated on an unsecured basis for an additional three years.
If, for any reason, MB Financial Bank recovers all or any portion of a restitution payment for which it received a disbursement from the escrowed funds, or a separate payment from the Principal Stockholders pursuant to the Escrow Letter Agreement, MB Financial Bank will distribute to the Principal Stockholders, on a pro rata basis, 60% of MB Financial Bank’s net after-tax recovery, including reasonable third party expenses incurred by MB Financial Bank relating to the recovery.
The foregoing description of the Escrow Letter Agreement is qualified in its entirety by reference to the full text of the Escrow Letter Agreement, a copy of which is filed herewith as Exhibit 10.1 and is incorporated herein by reference.
Item 8.01 Other Events
As noted above in Item 1.01, on June 30, 2014, the Federal Reserve Board approved the Merger. The transaction remains subject to the approval of the OCC and the satisfaction of other customary conditions to closing.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits:
The following exhibits are being filed herewith:
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2.1 |
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Amendment, dated as of June 30, 2014, to Agreement and Plan of Merger, dated as of July 14, 2013, by and between MB Financial, Inc. and Taylor Capital Group, Inc. |
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2.2 |
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Letter Agreement, dated as of June 30, 2014, by and between MB Financial, Inc. and Taylor Capital Group, Inc. |
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10.1 |
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Letter Agreement, dated as of June 30, 2014, by and among MB Financial, Inc. and certain principal stockholders of Taylor Capital Group, Inc. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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MB FINANCIAL, INC. |
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Date: July 1, 2014 |
By: |
/s/ Jill E. York |
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Jill E. York |
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Vice President and Chief Financial Officer |
EXHIBIT INDEX
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Exhibit No. |
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Description |
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2.1 |
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Amendment, dated as of June 30, 2014, to Agreement and Plan of Merger, dated as of July 14, 2013, by and between MB Financial, Inc. and Taylor Capital Group, Inc. |
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2.2 |
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Letter Agreement, dated as of June 30, 2014, by and between MB Financial, Inc. and Taylor Capital Group, Inc. |
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10.1 |
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Letter Agreement, dated as of June 30, 2014, by and among MB Financial, Inc. and certain Principal Stockholders of Taylor Capital Group, Inc. |
EXHIBIT 2.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT (this “ Amendment ”) to that certain Agreement and Plan of Merger by and between MB FINANCIAL, INC. (“ MB ”) and TAYLOR CAPITAL GROUP, INC. (“ TCG ”), dated as of July 14, 2013 (the “ Agreement ”), is entered into as of June 30, 2014, by and between MB and TCG. Capitalized terms used but not defined herein have the meanings set forth in the Agreement.
WHEREAS, pursuant to Section 8.3 of the Agreement, the Agreement may be amended by MB and TCG, by action taken or authorized by their respective Boards of Directors; and
WHEREAS, the parties desire to enter into this Amendment for the purpose of amending the Agreement as provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Extension of Termination Date . Section 8.1(c) of the Agreement is hereby amended to read in its entirety as follows:
“(c) by either MB or TCG, if the Merger shall not have been consummated on or before September 30, 2014 (the “ Termination Date ”); provided , that (x) the Termination Date may be extended one or more times, but not to a date later than December 31, 2014, by either MB or TCG on or before the then-current Termination Date, if the only condition to the Closing set forth in Article VII that has not been satisfied as of the tenth day prior to the then-current Termination Date (other than any condition which by its nature can only be satisfied at the Closing) is the receipt of any Requisite Regulatory Approval and such Requisite Regulatory Approval has not been denied by the applicable Governmental Entity or, if it has been denied, such denial has not become final and nonappealable, and no Governmental Entity of competent jurisdiction shall have issued a final nonappealable order permanently enjoining or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement, and (y) the right to terminate this Agreement under this Section 8.1(c) shall not be available to a party whose failure to perform or observe the covenants and agreements of such party set forth in this Agreement shall have resulted in, or principally created, the failure to obtain any Requisite Regulatory Approval prior to the then-current Termination Date;”
Section 2. Amendment . This Amendment may only be amended, modified, waived or supplemented in the same manner as the Agreement may be amended, modified, waived or supplemented pursuant to Section 8.3 of the Agreement.
Section 3. Successors . This Amendment is binding on and inures to the benefit of the parties hereto and their respective successors under the Agreement.
Section 4. Agreement Affirmed . Except as expressly amended, modified and superseded by this Amendment, all terms and provisions of the Agreement shall remain unchanged and in full force and effect without modification, and nothing herein shall operate as a waiver of any party’s rights, powers or privileges under the Agreement. Notwithstanding anything to the contrary herein, this Amendment does not waive any breaches in the representations, warranties and covenants contained in the Agreement or in any document delivered pursuant hereto.
Section 5. Counterparts . This Amendment may be executed in counterparts and each of such counterparts shall for all purposes be deemed to be an original, and such counterparts together shall constitute but one and the same instrument.
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The parties have caused this Amendment to be executed by their respective authorized signatories as of the day and year first above written.
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MB FINANCIAL, INC. |
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TAYLOR CAPITAL GROUP, INC . |
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By: |
/s/ Mitchell Feiger |
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By: |
/s/ Mark A. Hoppe |
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Name: |
Mitchell Feiger |
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Name: |
Mark A. Hoppe |
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Title: |
President and Chief Executive Officer |
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Title: |
President and Chief Executive Officer |
EXHIBIT 2.2
June 30, 2014
MB Financial, Inc.
6111 N. River Road
Rosemont, Illinois 60018
Re: Acknowledgement of No Material Adverse Effect
Ladies and Gentlemen:
Reference is made to that certain Agreement and Plan of Merger (the “ Agreement ”), dated as of July 14, 2013, by and between MB Financial, Inc. (“ MB ”) and Taylor Capital Group, Inc. (“ TCG ”). Capitalized terms used but not defined herein have the meanings assigned to them in the Agreement.
Each of MB and TCG wish to memorialize their agreement and understanding with respect to the treatment of certain matters in the context of the definition of the term “Material Adverse Effect” as set forth in Section 3.1(a) of the Agreement. Accordingly, the parties hereby agree that none of the approval, execution or official issuance or entry of that certain Order to Cease and Desist and Order of Assessment of a Civil Money Penalty Issued upon Consent Pursuant to the Federal Deposit Insurance Act, as Amended, and the Illinois Banking Act, as Amended, dated as of June 26, 2014 (the “ Consent Order ”), by and between Cole Taylor Bank, the Board of Governors of the Federal Reserve System and the Illinois Department of Financial and Professional Regulation shall constitute a Material Adverse Effect pursuant to the Agreement. The parties further agree that the liability or obligation, damage, cost or expense (including reasonable attorneys’ fees) of Cole Taylor Bank imposed by, or otherwise relating to, the Consent Order shall be limited to the Impact Cap in the determination of any Material Adverse Effect pursuant to clause (ii) of the definition of Material Adverse Effect set forth in Section 3.1(a) of the Agreement or pursuant to any other part of such definition. For the purposes of clarity, the foregoing provision does not limit Cole Taylor Bank’s liability in any way other than determining Material Adverse Effect. As used herein, the term “ Impact Cap ” shall mean that amount equal to: (i) Four Million Seven Hundred and Ten Thousand Dollars ($4,710,000) plus (ii) forty percent (40%) of any depositor restitution contemplated under the Consent Order which is ordered or requested by the Federal Reserve to be paid, or actually paid, by Cole Taylor Bank prior to the Closing.
If the foregoing correctly states your understanding of our agreements, please sign the enclosed copy of this letter in the space provided, whereupon this letter will become an agreement between us as of the date first above written. This letter agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
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Sincerely, |
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TAYLOR CAPITAL GROUP, INC. |
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By: |
/s/ Mark A. Hoppe |
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Name: |
Mark A. Hoppe |
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Title: |
President and Chief Executive Officer |
Accepted and agreed as of the date first written above:
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MB FINANCIAL, INC. |
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By: |
/s/ Jill E. York |
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Name: |
Jill E. York |
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Title: |
Vice President and Chief Financial Officer |
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EXHIBIT 10.1
June 30, 2014
MB Financial, Inc.
6111 N. River Road
Rosemont, Illinois 60018
Re: Escrow of Merger Consideration
Ladies and Gentlemen:
Reference is made to that certain Agreement and Plan of Merger (the “ Merger Agreement ”), dated as of July 14, 2013, by and between MB Financial, Inc. (“ MB ”) and Taylor Capital Group, Inc. (“ TCG ”), pursuant to which, among other things, and subject to the terms and conditions set forth therein: (i) TCG will merge with and into MB (the “ Merger ”); and (ii) the stockholders of TCG, upon effectiveness of the Merger, will become entitled to receive the consideration specified in the Merger Agreement. Capitalized terms used but not defined herein have the meanings assigned to them in the Merger Agreement.
Pursuant to Section 8.1(c) of the Merger Agreement, the Merger Agreement may be terminated by either MB or TCG if the Merger shall not have been consummated on or before June 30, 2014 (the “ Termination Date ”). As of the date hereof, the Merger cannot take place on or before the Termination Date because the parties have not yet received certain Requisite Regulatory Approvals necessary to consummate the Merger. Accordingly, concurrently herewith, MB and TCG will enter into that certain Amendment to Agreement and Plan of Merger which amends Section 8.1(c) to extend the Termination Date (the “ Amendment ”).
As a condition to its execution and delivery of the Amendment, MB has requested that the undersigned holders of TCG Common Stock and TCG Nonvoting Preferred Stock (each a “ Principal Stockholder ”) execute and deliver to MB this letter agreement (this “ Agreement ”). Accordingly, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions . In addition to those terms defined throughout this Agreement, the following terms when used herein, shall have the following meanings:
(a) “ Aggregate Economic Ownership Percentage ” shall mean the sum of all Principal Stockholder Economic Ownership Percentages set forth on the signature pages of this Agreement.
(b) “ Aggregate Escrow Obligation ” shall mean: (i) as of the Closing, Eighteen Million Dollars ($18,000,000); and (ii) at all times following the Closing, the amount equal to sixty percent (60%) of the Maximum Restitution Obligation, as the same may decrease during the term of this Agreement.
(c) “ Cash Merger Consideration ” shall mean, with respect to each Principal Stockholder, the aggregate cash portion of the Base Merger Consideration which such Principal Stockholder is entitled to receive upon consummation of the Merger.
(d) “ Consent Order ” shall mean that certain Order to Cease and Desist and Order of Assessment of a Civil Money Penalty Issued upon Consent Pursuant to the Federal Deposit Insurance Act, as Amended, and the Illinois Banking Act, as Amended, dated as of June 26, 2014, by and between Cole Taylor Bank, the Board of Governors of the Federal Reserve System (“ Federal Reserve ”) and the Illinois Department of Financial and Professional Regulation.
(e) “ Contribution Percentage ” shall mean, with respect to each Principal Stockholder, the applicable percentage set forth on the signature pages to this Agreement under the column “Contribution Percentage,” which such percentage is equal to: (i) such Principal Stockholder’s Economic Ownership Percentage; divided by (ii) the Aggregate Economic Ownership Percentage.
(f) “ Economic Ownership Percentage ” shall mean, with respect to each Principal Stockholder, the applicable percentage set forth on the signature pages to this Agreement under the column “Economic Ownership Percentage.”
(g) “ Escrow Termination Date ” means the fourth anniversary of the date of Closing.
(h) “ Escrowed Funds ” shall mean the aggregate amount held in the Escrow Account at any given time.
(i) “ Excess Funds ” shall mean the amount of Escrowed Funds in excess of the Aggregate Escrow Obligation at any given time, excluding earnings on Escrowed Funds.
(j) “ Individual Escrow Obligation ” shall mean, with respect to each Principal Stockholder: (i) such Principal Stockholder’s Contribution Percentage; multiplied by (ii) the Aggregate Escrow Obligation.
(k) “ Individual Tax Benefit ” shall mean, with respect to each Principal Stockholder: (i) the Tax Benefit Amount; multiplied by (ii) such Principal Stockholder’s Contribution Percentage.
(l) “ Individual Tax Detriment ” shall mean, with respect to each Principal Stockholder: (i) the Tax Detriment Amount; multiplied by (ii) such Principal Stockholder’s Contribution Percentage.
(m) “ Maximum Restitution Obligation ” shall mean the maximum depositor restitution that MB Bank, as successor to Cole Taylor Bank, may reasonably be obligated to pay pursuant to the Consent Order. For the avoidance of doubt, any Restitution Payment paid by Cole Taylor Bank prior to the Closing and any funds paid or deposited with a third-party financial institution by the Primary Obligor that reduces the contingent restitution obligation of Cole Taylor Bank, or MB Bank, as successor to Cole Taylor Bank, under the Consent Order will reduce, on a dollar for dollar basis, the Maximum Restitution Obligation.
(n) “ Net After-Tax Recovery ” shall mean: (i) the Net Recovery Amount; minus (ii) the Net Recovery Tax Detriment.
(o) “ Net Recovery Amount ” shall mean: (i) the gross amount of any recovered Restitution Payment as described in Section 5 hereof; minus (ii) the reasonable third-party expenses incurred by MB Bank relating to the recovery under subpart (i) hereof.
(p) “ Net Recovery Tax Detriment ” shall mean any Net Recovery Amount that is reported or otherwise includable as income by MB or MB Bank on its federal income tax return multiplied by the Tax Rate.
(q) “ Primary Obligor ” shall mean that party named in the Consent Order for whose unpaid depositor restitution payments Cole Taylor Bank, or MB Bank, as successor to Cole Taylor Bank, shall be liable.
(r) “ Restitution Payment ” shall mean any depositor restitution ordered or requested by the Federal Reserve to be paid, and actually paid, pursuant to the Consent Order by: (i) Cole Taylor Bank prior to the Closing; or (ii) MB Bank, as successor to Cole Taylor Bank, at any time following the Closing.
(s) “ Tail Period ” shall mean: (i) three years next following the Escrow Termination Date for each Prairie Entity and (ii) four years next following the Escrow Termination Date for all the other Principal Stockholders.
(t) “ Tax Benefit Amount ” shall mean sixty percent (60%) of any Restitution Payment taken as a deduction by TCG, Cole Taylor Bank, MB or MB Bank on its federal income tax return multiplied by the Tax Rate, but only to the extent that sixty percent (60%) of such Restitution Payment was either distributed to MB Bank from the Escrowed Funds or was separately paid by the Principal Stockholders to MB Bank pursuant to this Agreement.
(u) “ Tax Detriment Amount ” shall mean any and each of: (i) the amount of Escrowed Funds distributed to MB Bank or separately paid by the Principal Stockholders to MB Bank pursuant to this Agreement that is included or otherwise includable as income by MB or MB Bank for federal income tax purposes multiplied by
the Tax Rate, plus any penalties and interest thereon; (ii) the amount of any Restitution Payment included in the calculation of a Tax Benefit Amount that is determined by the Internal Revenue Service to be non-deductible multiplied by the Tax Rate, plus penalties and interest thereon; and (iii) with respect to a prior distribution of funds by MB Bank to the Principal Stockholders pursuant to Section 5 of this Agreement, sixty percent (60%) of the amount of any Net Recovery Tax Detriment that was not taken into account in the calculation of the Net After-Tax Recovery upon which such distribution was based as a result of a subsequent determination by the Internal Revenue Service that a greater Net Recovery Amount is includable as income of MB or MB Bank, plus penalties and interest thereon.
(v) “ Tax Rate ” shall mean the combined net federal and Illinois corporate income tax rate ((i) utilizing the maximum effective corporate income tax rates and (ii) after netting out the federal income tax benefit of the Illinois corporate income tax), as in effect for the applicable tax year in which (x) a deduction item in the calculation of a Tax Benefit Amount is included in the federal income tax return of MB or MB Bank or (y) an income item in the calculation of a Net Recovery Tax Detriment or Tax Detriment Amount is included (or determined to be includable by the Internal Revenue Service) in the federal income tax return of MB or MB Bank.
Section 2. Escrow . Prior to the Closing of the Merger, the Principal Stockholders and MB shall enter into an escrow agreement (the “ Escrow Agreement ”) governing the terms of an escrow account (the “ Escrow Account ”) to be held at a third-party financial institution (the “ Escrow Agent ”), the terms of such Escrow Agreement and the identity of such Escrow Agent shall be reasonably acceptable to MB. Concurrently with the Closing, each Principal Stockholder shall deposit an amount equal to such Principal Stockholder’s Individual Escrow Obligation into the Escrow Account, which will, in the aggregate, with the amounts deposited by all Principal Stockholders, secure the payment of any Restitution Payment. Until the Escrow Termination Date, each Principal Stockholder shall maintain in the Escrow Account an amount equal to such Principal Stockholder’s Individual Escrow Obligation, as such Individual Escrow Obligation may be adjusted in accordance with the terms hereof; provided , however , that no Principal Stockholder shall be obligated to deposit additional amounts to the Escrow Account following the initial deposit of such Principal Stockholder’s Individual Escrow Obligation concurrent with the Closing.
Section 3. Funding of Individual Escrow Obligation .
(a) Each Principal Stockholder’s Individual Escrow Obligation shall be satisfied by deposit into the Escrow Account of cash or other immediately available funds, including, in the sole discretion of such Principal Stockholder, any portion of such Principal Stockholder’s Cash Merger Consideration directed by such Principal Stockholder to be deposited into the Escrow Account; provided , however , that the Individual Escrow Obligations of Prairie Capital IV, L.P. and Prairie Capital IV QP, L.P. (each, a “ Prairie Entity ”) may, in the sole discretion of each such Prairie Entity, be
satisfied by deposit into the Escrow Account of a standby letter of credit in the principal amount thereof, issued by a financial institution and containing such terms and conditions, each as are reasonably acceptable to MB (a “ Letter of Credit ”). Subject to the terms of this Section 3 , each Prairie Entity may elect at any time to change the form of funds securing its Individual Escrow Obligations in the Escrow Account. Notwithstanding anything contained herein to the contrary, the parties further agree that any benefit or liability of each Prairie Entity hereunder shall be reflected, as applicable, in any Letter of Credit.
(b) Notwithstanding the provisions of Section 3(a) , at the Closing, MB shall, with the unanimous written consent of all Principal Stockholders having an Economic Ownership Percentage greater than or equal to five percent (5%) and TCG: (i) withhold from each Principal Stockholder a portion of the Cash Merger Consideration to which such Principal Stockholder was otherwise due in an amount equal to such Principal Stockholder’s Individual Escrow Obligation; and (ii) deposit such portion of the Cash Merger Consideration into the Escrow Account in satisfaction of the Aggregate Escrow Obligation.
Section 4. Restitution Payments .
(a) If Cole Taylor Bank is ordered or requested by the Federal Reserve to make a Restitution Payment at any time prior to the Closing, then immediately following the deposit of the Aggregate Escrow Obligation in the Escrow Account, the Escrow Agent shall pay MB Bank from the Escrowed Funds an amount equal to sixty percent (60%) of the amount of such Restitution Payment.
(b) If, following the Closing and on or prior to the Escrow Termination Date, MB Bank is ordered or requested by the Federal Reserve to make a Restitution Payment, the Escrow Agent shall pay MB Bank from the Escrowed Funds sixty percent (60%) of the amount of such Restitution Payment.
(c) Any Escrowed Funds distributed to MB Bank in accordance with this Section 4 will be deemed to have been funded from each Principal Stockholder’s Individual Escrow Obligation on a pro rata basis, and, for the avoidance of doubt, if the Escrow Account shall have been funded pursuant to the terms of Section 3(a) , such distributed Escrowed Funds will be deemed to constitute an equivalent reduction in the Cash Merger Consideration received by each Principal Stockholder pursuant to applicable income tax law.
(d) If, following the Closing, MB Bank is ordered or requested by the Federal Reserve to make a Restitution Payment, MB agrees that it will take, or cause MB Bank to take, a tax deduction on its federal income tax return for any Restitution Payment, provided , however , that MB has been advised by its tax advisors that there is substantial authority for taking such tax deduction.
Section 5. Recovered Restitution Payments . If, for any reason, MB Bank recovers all or any portion of any Restitution Payment for which it received a distribution of Escrowed Funds or separate payment from the Principal Stockholders pursuant to this Agreement for sixty (60%) of the amount thereof, MB Bank shall promptly distribute to each Principal Stockholder an amount equal to: (a) sixty percent (60%) of the Net After-Tax Recovery; multiplied by (b) such Principal Stockholder’s Contribution Percentage.
Section 6. Return of Escrowed Funds; Payment of Tax Benefit Amount and Tax Detriment Amount .
(a) If the Escrow Account contains Excess Funds as of the last day of any calendar month, the Escrow Agent shall distribute such Excess Funds in kind to the Principal Stockholders, pro rata, based upon each Principal Stockholder’s Individual Escrow Obligation. For the avoidance of doubt, such in-kind distribution, in the case of a Letter of Credit, shall be made in the form of an instruction to the appropriate party to reduce the principal amount of such Letter of Credit accordingly.
(b) Earnings on Escrowed Funds shall be distributed quarterly prior to the Escrow Termination Date and on the business day next following the Escrow Termination Date to the Principal Stockholders who deposited Escrowed Funds in cash in proportion to their respective Escrow Account cash balances.
(c) If the Escrow Account contains any Escrowed Funds as of 11:59 p.m. Central Time on the Escrow Termination Date, the Escrow Agent shall promptly thereafter distribute such Escrowed Funds in kind to the Principal Stockholders, pro rata, based upon each Principal Stockholder’s Individual Escrow Obligation. For the avoidance of doubt, such in-kind distribution, in the case of a Letter of Credit, shall be made in the form of an instruction to the appropriate party to reduce the principal amount of such Letter of Credit accordingly.
(d) Notwithstanding the release of Escrowed Funds to the Principal Stockholders pursuant to Section 6(c) above, during the Tail Period, each Principal Stockholder shall remain liable to MB Bank for an amount equal to: (i) sixty percent (60%) of any Restitution Payment; multiplied by (ii) such Principal Stockholder’s Contribution Percentage. If any Principal Stockholder fails to make payment thereof to MB Bank within fifteen (15) days after written demand, then such Principal Stockholder’s obligation herein shall thereafter bear interest at the highest legal rate permitted in the State of Illinois and such Principal Stockholder shall also be obligated for all costs of collection.
Section 7. Payment of Tax Benefit Amount . Within fifteen (15) days after the filing of a federal income tax return containing a Tax Benefit Amount, MB shall pay the Individual Tax Benefit Amount relating thereto to each of the Principal Stockholders. If MB fails to timely make payment as provided herein, then the unpaid Individual Tax
Benefit Amount shall thereafter bear interest at the highest legal rate permitted in the State of Illinois and MB shall also be obligated for all costs of collection.
Section 8. Payment of Tax Detriment Amount . Upon the occurrence of an event giving rise to a Tax Detriment Amount, MB shall give written notice relative thereto to each Principal Stockholder and such notice shall describe in reasonable detail the event giving rise to a Tax Detriment Amount with the calculation of such Principal Stockholder’s repayment obligation to MB. Within fifteen (15) days after receipt of such written notice, each Principal Stockholder shall pay to MB his, her or its Individual Tax Detriment Amount. If any Principal Stockholder fails to timely make payment to MB, then such Principal Stockholder’s obligation herein shall thereafter bear interest at the highest legal rate permitted in the State of Illinois and such Principal Stockholder shall also be obligated for all costs of collection. In the case of each Prairie Entity only, the provisions of this Section 8 shall expire at the end of the Tail Period.
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If the foregoing correctly states your understanding of our agreements, please sign the enclosed copy of this Agreement in the space provided, whereupon this Agreement will become binding upon each of us as of the date first above written. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. This Agreement may be executed and accepted by facsimile or portable data file (PDF) signature and any such signature shall be of the same force and effect as an original signature.
Sincerely,
[THIS SPACE LEFT INTENTIONALLY BLANK]
[SIGNATURE PAGES FOLLOW]
PRAIRIE CAPITAL, L.P. INVESTORS
|
Name |
|
Signature |
|
Economic
|
|
Contribution
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|
Prairie Capital IV, L.P. |
|
/s/ Stephen V. King |
|
3.88 |
% |
7.77 |
% |
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|
By: |
Stephen V. King |
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Its: |
Managing Member of GP |
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|
Prairie Capital IV QP, L.P. |
|
/s/ Stephen V. King |
|
3.88 |
% |
7.77 |
% |
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By: |
Stephen V. King |
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Its: |
Managing Member of GP |
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[PRAIRIE CAPITAL, L.P. INVESTOR SIGNATURE PAGE]
FINANCIAL INVESTMENTS CORPORATION INVESTORS
|
Name |
|
Signature |
|
Economic
|
|
Contribution
|
|
|
|
|
|
|
|
|
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|
|
|
|
Harrison I. Steans |
|
/s/ Harrison I. Steans |
|
7.22 |
% |
14.44 |
% |
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|
Jennifer W. Steans |
|
/s/ Jennifer W. Steans |
|
1.19 |
% |
2.37 |
% |
|
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|
James P. Kastenholz |
|
/s/ James P. Kastenholz |
|
0.29 |
% |
0.59 |
% |
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|
Jennifer W. Steans, as Custodian for Nicholas J. Kastenholz |
|
/s/ Jennifer W. Steans |
|
0.09 |
% |
0.17 |
% |
|
|
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|
Jennifer W. Steans 1999 Descendants Trust |
|
/s/James P. Kastenholz |
|
0.14 |
% |
0.29 |
% |
|
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|
By: |
James P. Kastenholz |
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Its: |
Trustee |
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|
Heather A. Steans 1999 Descendants Trust |
|
/s/ Leo A. Smith |
|
0.14 |
% |
0.29 |
% |
|
|
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|
By: |
Leo A. Smith |
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Its: |
Trustee |
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|
Heather A. Steans |
|
/s/ Heather A. Steans |
|
1.16 |
% |
2.31 |
% |
|
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Robin M. Steans |
|
/s/ Robin M. Steans |
|
0.62 |
% |
1.24 |
% |
|
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|
Leonard A. Gail |
|
/s/ Leonard A. Gail |
|
0.69 |
% |
1.38 |
% |
|
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|
Robin M. Steans 1999 Descendants Trust |
|
/s/ Leonard A. Gail |
|
0.14 |
% |
0.29 |
% |
|
|
|
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|
By: |
Leonard A. Gail |
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Its: |
Trustee |
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[FINANCIAL INVESTMENTS CORPORATION INVESTOR SIGNATURE PAGE]
|
Name |
|
Signature |
|
Economic
|
|
Contribution
|
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|
Steans 1996 Family Trust |
|
/s/ Jennifer W. Steans |
|
0.87 |
% |
1.75 |
% |
|
|
|
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|
By: |
Jennifer W. Steans |
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Its: |
Trustee |
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|
PCB Limited Partnership |
|
/s/ Jennifer W. Steans |
|
1.29 |
% |
2.57 |
% |
|
|
|
|
|
|
|
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|
By: |
Jennifer W. Steans |
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Its: |
General Partner |
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|
Trilogy Investment Group, LLC |
|
/s/ Jennifer W. Steans |
|
0.61 |
% |
1.23 |
% |
|
|
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|
By: |
Jennifer W. Steans |
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Its: |
Managing Member |
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|
[FINANCIAL INVESTMENTS CORPORATION INVESTOR SIGNATURE PAGE CON’T]
|
Name |
|
Signature |
|
Economic
|
|
Contribution
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adeline S. Morrison |
|
/s/ Adeline S. Morrison |
|
0.32 |
% |
0.65 |
% |
|
|
|
|
|
|
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|
Harold M. Morrison |
|
/s/ Harold M. Morrison |
|
0.74 |
% |
1.47 |
% |
|
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|
Helen H. Morrison |
|
/s/ Helen H. Morrison |
|
0.82 |
% |
1.64 |
% |
|
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|
Helen H. Morrison IRA |
|
/s/ Helen H. Morrison |
|
0.20 |
% |
0.39 |
% |
|
|
|
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|
|
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|
By: |
Helen H. Morrison |
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Its: |
Authorized Signatory |
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|
Lois L. Morrison |
|
/s/ Lois L. Morrison |
|
0.40 |
% |
0.80 |
% |
|
|
|
|
|
|
|
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|
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|
|
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|
Lois L. Morrison IRA |
|
/s/ Lois L. Morrison |
|
0.05 |
% |
0.10 |
% |
|
|
|
|
|
|
|
|
|
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|
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|
By: |
Lois L. Morrison |
|
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Its: |
Authorized Signatory |
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|
Justin W. Daab |
|
/s/ Justin W. Daab |
|
0.03 |
% |
0.05 |
% |
|
|
|
|
|
|
|
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|
Charles E. Brinley |
|
/s/ Charles E. Brinley |
|
0.08 |
% |
0.17 |
% |
|
|
|
|
|
|
|
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|
Margot M. Brinley |
|
/s/ Margot M. Brinley |
|
0.66 |
% |
1.32 |
% |
|
|
|
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|
Amy M. Heinrich |
|
/s/ Amy M. Heinrich |
|
0.38 |
% |
0.76 |
% |
|
|
|
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|
Foursquare Investments, LLC |
|
/s/ Lois L. Morrison |
|
0.80 |
% |
1.61 |
% |
|
|
|
|
|
|
|
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|
By: |
Lois L. Morrison |
|
|
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|
Its: |
Managing Member |
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|
Harold M. and Adeline S. Morrison Family Foundation |
|
/s/ Adeline S. Morrison |
|
0.03 |
% |
0.07 |
% |
|
|
|
|
|
|
|
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|
|
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|
By: |
Adeline S. Morrison |
|
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Its: |
Trustee |
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|
[FINANCIAL INVESTMENTS CORPORATION INVESTOR SIGNATURE PAGE CON’T]
|
Name |
|
Signature |
|
Economic
|
|
Contribution
|
|
|
|
|
|
|
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|
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|
|
|
Thomas B. Hunter III |
|
/s/ Thomas B. Hunter III |
|
2.65 |
% |
5.31 |
% |
|
|
|
|
|
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|
Thomas B. Hunter IV |
|
/s/ Thomas B. Hunter IV |
|
1.16 |
% |
2.32 |
% |
|
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|
Thomas B. Hunter IV IRA |
|
/s/ Thomas B. Hunter IV |
|
0.02 |
% |
0.04 |
% |
|
|
|
|
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|
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|
By: |
Thomas B. Hunter IV |
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Its: |
Authorized Signatory |
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Tscharner DeGraffenried Hunter |
|
/s/ Tscharner DeGraffenried Hunter |
|
0.01 |
% |
0.02 |
% |
|
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Thomas Ruffin Hunter |
|
/s/ Thomas Ruffin Hunter |
|
0.01 |
% |
0.02 |
% |
|
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|
Willard M. Hunter |
|
/s/ Willard M. Hunter |
|
0.99 |
% |
1.98 |
% |
|
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|
Benjamin J. Hunter |
|
/s/ Benjamin J. Hunter |
|
0.02 |
% |
0.04 |
% |
|
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|
Willard M. Hunter, as Custodian for Willard K. Hunter |
|
/s/ Willard M. Hunter |
|
0.02 |
% |
0.04 |
% |
|
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|
Peter M. Hunter |
|
/s/ Peter M. Hunter |
|
0.02 |
% |
0.04 |
% |
|
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|
Maxine M. Hunter Charitable Lead Annuity Trust |
|
/s/ Thomas B. Hunter IV |
|
0.39 |
% |
0.78 |
% |
|
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|
By: |
Thomas B. Hunter IV |
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Its: |
Trustee |
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|
Hunter Family Foundation |
|
/s/ Thomas B. Hunter IV |
|
0.09 |
% |
0.18 |
% |
|
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By: |
Thomas B. Hunter IV |
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Its: |
Trustee |
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[FINANCIAL INVESTMENTS CORPORATION INVESTOR SIGNATURE PAGE CON’T]
|
Name |
|
Signature |
|
Economic
|
|
Contribution
|
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|
George P. Bauer Revocable Trust |
|
/s/ George P. Bauer |
|
3.12 |
% |
6.17 |
% |
|
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|
By: |
George P. Bauer |
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Its: |
Trustee |
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[FINANCIAL INVESTMENTS CORPORATION INVESTOR SIGNATURE PAGE CON’T]
TAYLOR FAMILY INVESTORS
|
Name |
|
Signature |
|
Economic
|
|
Contribution
|
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||
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|
Jeffrey W. Taylor Revocable Trust U/A/D 8/20/79 |
|
/s/ Jeffrey W. Taylor |
|
0.01 |
% |
0.02 |
% |
||
|
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|
By: |
Jeffrey W. Taylor |
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Its: |
Authorized Signatory |
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|
Jeffrey W. Taylor IRA |
|
/s/ Jeffrey W. Taylor |
|
0.02 |
% |
0.04 |
% |
||
|
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|
By: |
Jeffrey W. Taylor |
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Its: |
Authorized Signatory |
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|
Jeffrey W. Taylor Gift Trust U/A/D 6/10/82 |
|
/s/ Jeffrey W. Taylor |
|
0.07 |
% |
0.15 |
% |
||
|
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|
By: |
Jeffrey W. Taylor |
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Its: |
Authorized Signatory |
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|
GGC Trust for Brian Taylor U/A/D 12/1/08 |
|
/s/ Brian Taylor |
|
0.41 |
% |
0.82 |
% |
||
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By: |
Brian Taylor |
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Its: |
Authorized Signatory |
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Taylor Annual Gift Trust for Brian U/A/D 12/14/82 |
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/s/ Brian Taylor |
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0.11 |
% |
0.21 |
% |
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By: |
Brian Taylor |
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Its: |
Authorized Signatory |
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Taylor 1992 Gift Trust for Brian U/A/D 12/17/92 |
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/s/ Brian Taylor |
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0.02 |
% |
0.03 |
% |
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By: |
Brian Taylor |
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Its: |
Authorized Signatory |
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GGC Trust for Adam Taylor U/A/D 12/1/08 |
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/s/ Lisa Korach |
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0.41 |
% |
0.82 |
% |
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By: |
Lisa Korach |
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Its: |
Trustee |
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[TAYLOR FAMILY INVESTOR SIGNATURE PAGE]
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Name |
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Signature |
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Economic
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Contribution
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Taylor 1992 Gift Trust for Adam U/A/D 12/17/92 |
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/s/ Lisa Korach |
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0.02 |
% |
0.03 |
% |
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By: |
Lisa Korach |
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Its: |
Authorized Signatory |
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Taylor Annual Gift Trust for Lisa Rebecca U/A/D 7/10/83 |
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/s/ Jeffrey W. Taylor |
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0.06 |
% |
0.12 |
% |
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By: |
Jeffrey W. Taylor |
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Its: |
Authorized Signatory |
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[TAYLOR FAMILY INVESTOR SIGNATURE PAGE CON’T]
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Name |
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Signature |
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Economic
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Contribution
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Bruce W. Taylor Revocable Trust U/A/D 4/10/84 |
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/s/ Bruce Taylor |
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0.64 |
% |
1.29 |
% |
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By: |
Bruce Taylor |
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Its: |
Authorized Signatory |
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Bruce W. Taylor IRA |
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/s/ Bruce Taylor |
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0.05 |
% |
0.11 |
% |
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By: |
Bruce Taylor |
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Its: |
Authorized Signatory |
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Bruce W. Taylor Gift Trust U/A/D 6/10/82 |
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/s/ Bruce Taylor |
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0.13 |
% |
0.26 |
% |
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By: |
Bruce Taylor |
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Its: |
Authorized Signatory |
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Bruce Taylor and Barbara Taylor, joint tenants |
|
/s/ Bruce Taylor |
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0.11 |
% |
0.22 |
% |
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/s/ Barbara Taylor |
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[TAYLOR FAMILY INVESTOR SIGNATURE PAGE CON’T]
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Name |
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Signature |
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Economic
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Contribution
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Cindy L. Taylor Robinson Revocable Trust U/A/D 3/7/94 |
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/s/ Cindy Taylor Robinson |
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0.01 |
% |
0.03 |
% |
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By: |
Cindy Taylor Robinson |
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Its: |
Trustee |
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Cindy L. Taylor Gift Trust U/A/D 6/10/82 |
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/s/ Cindy Taylor Robinson |
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0.13 |
% |
0.26 |
% |
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By: |
Cindy Taylor Robinson |
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Its: |
Trustee |
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Cindy L. Taylor Robinson |
|
/s/ Cindy L. Taylor Robinson |
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0.20 |
% |
0.39 |
% |
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[TAYLOR FAMILY INVESTOR SIGNATURE PAGE CON’T]
|
Name |
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Signature |
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Economic
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Contribution
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|
Taylor Voting Trust U/A/D 11/30/98 |
|
/s/ Bruce Taylor |
|
12.38 |
% |
24.77 |
% |
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By: |
Bruce Taylor |
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Its: |
Authorized Signatory |
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[TAYLOR FAMILY INVESTOR SIGNATURE PAGE CON’T]
Accepted and agreed as of the date first written above:
MB FINANCIAL, INC.
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By: |
/s/ Jill E. York |
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Name: |
Jill E. York |
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Title: |
Vice President and Chief Financial Officer |
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[MB FINANCIAL, INC. SIGNATURE PAGE]