INDEMNIFICATION AGREEMENT
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THIS AGREEMENT is made as of the _____th day of May, 1999, by and between
PrivateBancorp, Inc., a Delaware corporation (the "Corporation") and the
undersigned director and/or officer (the "Indemnitee") of the Corporation,
WHEREAS, it is essential to the Corporation to retain and attract as
directors and/or officers the most capable persons available; and
WHEREAS, through its Restated Certificate of Incorporation, as amended (the
"Charter"), and Amended and Restated By-laws (the "By-laws"), it is the express
policy of the Corporation to indemnify its directors and officers so as to
provide them with the maximum possible protection permitted by law; and
WHEREAS, the vagaries of "public policy" and interpretations of statutes,
certificates of incorporation and by-laws make uncertain the indemnification
protection so provided; and
WHEREAS, the Board of Directors has concluded that such uncertainty and the
continuation of present trends in litigation against corporate directors and
officers will inevitably result in less effective direction and supervision of
the Corporation's business affairs, and the Board deems such consequences to be
so detrimental to the best interests of the Corporation's stockholders that it
is not only reasonable and prudent but necessary for the Corporation to
contractually reaffirm its obligations to indemnify in a reasonable and adequate
manner its directors and officers and to establish procedures and presumptions
with respect thereto to make the process of indemnification more certain; and
WHEREAS, in connection therewith, Section 145 of the General Corporation
Law of the State of Delaware, under which the Corporation is organized, empowers
corporations to indemnify, among others, any person serving as a director and/or
officer of the corporation, and such Section 145 specifies that the
indemnification set forth therein shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled under the
certificate of incorporation, bylaws, agreements, vote of stockholders or
disinterested directors or otherwise; and
WHEREAS, the Corporation desires to have Indemnitee serve or continue to
serve as a director or officer of the Corporation or of any other corporation,
subsidiary, partnership, joint venture, or trust or other enterprise of which
he/she has been or is serving at the request, for the convenience of or to
represent the interests of the Corporation free from undue concern for
unpredictable, inappropriate or unreasonable claims for damages by reason of
his/her Corporate Status (as defined below) and Indemnitee desires to serve or
to continue to serve (provided that he/she is furnished the indemnity provided
for hereinafter), in one or more of such capacities;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the Corporation and Indemnitee hereby agree as follows:
1. Agreement to Serve. Indemnitee will serve and/or continue to serve, at
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the will of the Corporation or under separate contract, if such exists, the
Corporation or an Affiliate of the Corporation as a director and/or officer
faithfully and to the best of his/her ability so long as he/she is duly elected
and qualified in accordance with the provisions of the By-laws thereof or until
such time as he/she tenders his/her resignation in writing.
2. Indemnification. The Corporation shall indemnify, and advance Expenses
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(as hereinafter defined) to, Indemnitee as provided in this Agreement and to the
fullest extent permitted by the Charter or applicable law. Nothing herein shall
be interpreted so as to reduce or lessen the Corporation's obligations under the
Charter or applicable law in the absence of this Agreement.
3. Proceedings Other Than Proceedings by or in the Right of the
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Corporation. Indemnitee shall be entitled to the rights of indemnification set
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forth in Section 2 if, by reason of his/her Corporate Status (as hereinafter
defined), he/she is, or is threatened to be made, a party to any threatened,
pending, or completed Proceeding (as hereinafter defined), other than a
Proceeding by or in the right of the Corporation. Pursuant to this Section 3,
Indemnitee shall be indemnified against Expenses, liability and loss, including
but not limited to judgements, fines, and amounts paid in settlement actually
and reasonably incurred by him/her or on his/her behalf in connection with such
Proceeding or any claim, issue or matter related thereto, if he/she acted in
good faith and in a manner he/she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal
Proceeding, had no reasonable cause to believe his/her conduct was unlawful.
4. Proceedings by or in the Right of the Corporation. Indemnitee shall be
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entitled to the rights of indemnification set forth in Section 2 if, by reason
of his/her Corporate Status, he/she is, or is threatened to be made, a party to
any threatened, pending or completed Proceeding brought by or in the right of
the Corporation to procure a judgment in its favor. Pursuant to this Section 4,
Indemnitee shall be indemnified against Expenses actually and reasonably
incurred by him/her or on his/her behalf in connection with such Proceeding if
he/she acted in good faith and in a manner he/she reasonably believed to be in
or not opposed to the best interests of the Corporation. Notwithstanding the
foregoing, no indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which Indemnitee shall have
been adjudged to be liable to the Corporation if applicable law prohibits such
indemnification; provided, however, that if applicable law so permits,
indemnification against Expenses shall nevertheless be made by the Corporation
in such event if and only to the extent that the Court of Chancery of the State
of Delaware, or the court in which such Proceeding shall have been brought or is
pending, shall determine.
5. Indemnification for Expenses of a Party Who is Wholly or Partly
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Successful. Notwithstanding any other provision of this Agreement, to the extent
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that Indemnitee is, by reason of his/her Corporate Status, a party to, and is
successful on the merits or otherwise in, any Proceeding or any claim, issue or
matter therein, he/she shall be indemnified against all Expenses actually and
reasonably incurred by him/her or on his/her behalf in connection therewith. If
Indemnitee is not wholly successful in such a Proceeding but is successful, on
the merits or otherwise, as to one or more but less than all claims, issues or
matters in such a Proceeding, the Corporation shall indemnify
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Indemnitee against all Expenses actually and reasonably incurred by him/her or
on his/her behalf in connection with each successfully resolved claim, issue or
matter. For purposes of this Section 5 and without limitation, the termination
of any claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
6. Indemnification for Expenses of a Witness. Notwithstanding any other
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provision of this Agreement, to the extent that Indemnitee is, by reason of
his/her Corporate Status, a witness in any Proceeding, he/she shall be
indemnified against all Expenses actually and reasonably incurred by him/her or
on his/her behalf in connection therewith.
7. Indemnification for Expenses of Enforcing Rights. Notwithstanding any
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other provision of this Agreement, to the extent that Indemnitee, by reason of
his/her Corporate Status, incurs Expenses in successfully enforcing his/her
rights to indemnification by the Corporation, he/she shall be indemnified
against all Expenses actually and reasonably incurred by him/her or on his/her
behalf in connection therewith.
8. Advancement of Expenses. The Corporation shall advance all reasonable
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Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding within twenty (20) days after the receipt by the Corporation of a
statement or statements from Indemnitee requesting such advance or advances from
time to time, whether prior to or after final disposition of such Proceeding.
Such statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by an undertaking by
or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately
be determined that Indemnitee is not entitled to be indemnified against such
Expenses.
9. Procedure for Determination of Entitlement to Indemnification.
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(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the Board of
Directors in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant
to the first sentence of Section 9(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall be made
in the specific case as follows: (i) if a Change in Control (as hereinafter
defined) shall have occurred, by Independent Counsel (as hereinafter defined)
(unless Indemnitee shall request that such determination be made by the Board of
Directors or the stockholders, in which case by the person or persons or in the
manner provided for in clauses (ii) or (iii) of this Section 9(b)) in a written
opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee; (ii) if a Change in Control shall not have occurred, (a) by the
Board of Directors by a majority vote of a quorum consisting of Disinterested
Directors (as hereinafter
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defined), or (b) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee, or
(c) by the stockholders of the Corporation; or (iii) as provided in Section
10(b); and, if so determined that Indemnitee is entitled to indemnification,
payment to Indemnitee shall be made within ten (10) days after such
determination. Indemnitee shall cooperate with the person, persons or entity
making such determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Corporation (irrespective of the
determination as to Indemnitee's entitlement to indemnification) and the
Corporation hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 9(b), the Independent
Counsel shall be selected as provided in this Section 9(c). If a Change in
Control shall not have occurred, the Independent Counsel shall be selected by
the Board of Directors, and the Corporation shall give written notice to
Indemnitee advising him/her of the identity of the Independent Counsel so
selected. If a Change in Control shall have occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to the
Corporation advising it of the identity of the Independent Counsel so selected.
In either event, Indemnitee or the Corporation, as the case may be, may, within
seven (7) days after such written notice of selection shall have been given,
deliver to the Corporation or to Indemnitee, as the case may be, a written
objection to such selection. Such objection may be asserted only on the ground
that the Independent Counsel so selected does not meet the requirements of
"Independent Counsel" (as hereinafter defined) and the objection shall set forth
with particularity the factual basis of such assertion. If such written
objection is made, the Independent Counsel so selected may not serve as
Independent Counsel unless and until the Court of Chancery of the State of
Delaware, or any other court of competent jurisdiction (the "Court") for
resolution of such objection has determined that such objection is without
merit. If, within twenty (20) days after submission by Indemnitee of a written
request for indemnification pursuant to Section 9(a), no Independent Counsel
shall have been selected and not objected to, either the Corporation or
Indemnitee may petition the Court for resolution of any objection which shall
have been made by the Corporation or Indemnitee to the other's selection of
Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by the Court or by such other person as the Court shall
designate, and the person with respect to whom an objection is so resolved or
the person so appointed shall act as Independent Counsel under Section 9(b). The
Corporation shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with acting pursuant
to Section 9(b), and the Corporation shall pay all reasonable fees and expenses
incident to the procedures of this Section 9(c), regardless of the manner in
which such Independent Counsel was selected or appointed.
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Upon the due commencement of any judicial proceeding or arbitration pursuant to
Section 11(a)(iii), Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
10. Presumptions and Effect of Certain Proceedings.
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(a) If a Change in Control shall have occurred, when making a
determination with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee has
submitted a request for Indemnification in accordance with Section 9(a) and the
Corporation shall have the burden of proof to overcome that presumption in
connection with the making by any person, persons or entity of any determination
contrary to that presumption.
(b) If the person, persons or entity empowered or selected under
Section 9 to determine whether Indemnitee is entitled to indemnification shall
not have made such determination within forty-five (45) days after receipt by
the Corporation of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent a prohibition of such
indemnification under applicable law.
(c) The termination of any Proceeding or of any claim, issue or
matter related thereto by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not (except as otherwise
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expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not
act in good faith and in a manner which he/she reasonably believed to be in or
not opposed to the best interest of the Corporation or, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that
his/her conduct was unlawful. In addition, neither the failure of the
Independent Counsel to have made a determination as to whether Indemnitee has
met any particular standard of conduct or had any particular belief, nor an
actual determination by the Independent Counsel that the Indemnitee has not met
such standard of conduct or did not have such belief, prior to the commencement
of proceedings by Indemnitee to secure an arbitral or judicial determination
that Indemnitee should be indemnified under applicable law shall be a defense to
Indemnitee's claim or create a presumption that Indemnitee has not met any
particular standard of conduct or did not have any particular belief.
11. Remedies of Indemnitee. (a) In the event that (i) a determination is
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made pursuant to Section 8 that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made pursuant
to Section 7, (iii) the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 8(b) and such determination
shall not have been made and delivered in a written opinion within ninety (90)
days after receipt by the Corporation of the request for indemnification, (iv)
payment of indemnification is not made pursuant to Sections 5 or 6 within ten
(10) days after receipt by the Corporation of a written request therefor, or (v)
payment of indemnification is not made within ten (10) days after a
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determination has been made that Indemnitee is entitled to indemnification or
such determination is deemed to have been made pursuant to Section 9, Indemnitee
shall be entitled to an adjudication in the Court of his/her entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at
his/her option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules.
12. Arbitration.
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(a) All disputes between the parties with respect to the terms or
conditions of this Agreement shall be exclusively resolved by and through an
arbitration proceeding to be conducted under the auspices of the American
Arbitration Association (the "AAA") in Chicago, Illinois pursuant to the AAA's
Commercial Arbitration Rules (the "Arbitration"). Such Arbitration shall be
conducted in as expedited a manner as is then permitted by such rules. The
Arbitrators in any such Arbitration shall be persons who are expert in the
subject matter of the dispute. Both the foregoing agreement of the parties to
arbitrate any and all such claims, and the results, determination, finding,
judgment and/or award rendered through such Arbitration shall be final and
binding on the parties thereto and may be specifically enforced by legal
proceedings.
(b) The Corporation shall appoint one (1) Arbitrator and Indemnitee
shall appoint one (1) Arbitrator within the period of thirty (30) calendar days
commencing on the date of any claim hereunder, and the two Arbitrators so
appointed shall appoint a third Arbitrator within the period thirty (30)
calendar days commencing on the date on which the last of the two Arbitrators
has been selected. If either the Corporation or Indemnitee fails to select its
respective Arbitrator, or in the event that the two Arbitrators chosen by the
Corporation and the Indemnitee are unable or unwilling to select a third
Arbitrator within fourteen (14) calendar days following the selection of the
last of them, then the AAA shall select the Arbitrator that was not selected by
the Corporation, Indemnitee or the first two Arbitrators, as the case may be,
and the three Arbitrators shall constitute the arbitration panel for purposes of
the dispute.
(c) The Corporation shall bear all costs in connection with such
Arbitration including, without limitation, costs of the attorneys, witnesses and
experts; provided, however, that, with respect to any claim subject to this
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Section 11 which is brought by Indemnitee, Indemnitee shall be required to repay
to the Corporation his/her respective share of such costs if the arbitration
panel shall have concluded that such claim is frivolous in nature. The parties
hereto acknowledge and agree that time is of the essence in this Arbitration
proceeding, and the Arbitrators shall be instructed and required to render their
decision within ten (10) calendar days following completion of the Arbitration.
(d) Any and legal proceedings to enforce this Agreement (except for
any action to compel arbitration hereunder or any action to enforce any award or
judgment rendered thereby), shall be governed in accordance with this Section
11.
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(e) The Corporation shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 11 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Corporation is bound by all the provisions of this Agreement.
13. Non-Exclusivity; Survival of Rights; Insurance.
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(a) The rights of indemnification and to receive advancement of
Expenses as described by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Charter, the By-laws, any agreement, a vote of stockholders or a
resolution of Disinterested Directors, or otherwise. No amendment, alteration
or repeal of the Charter or the By-laws or of any provision hereof shall be
effective as to Indemnitee with respect to any action or omission by such
Indemnitee in his/her Corporate Status prior to such amendment, alteration or
repeal. To the extent that a change in the General Corporation Law of the State
of Delaware (whether by statute or judicial action) permits greater
indemnification by agreement than would be afforded currently under the Charter,
By-Laws and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change. The provisions of this Agreement shall continue as to an
Indemnitee whose Corporate Status has ceased and shall inure to the benefit of
his/her heirs, executors and administrators.
(b) To the extent that the Corporation maintains an insurance policy
or policies providing liability insurance for directors, officers, employees,
agents or fiduciaries of the Corporation or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Corporation, Indemnitee shall be
covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer,
employee or agent under such policy or policies.
(c) In the event of any payment under this Article, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Corporation to bring suit to enforce such rights.
(d) The Corporation shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
14. Severability. If any provision or provisions of this Agreement shall
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be held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not be in any way be affected or impaired thereby; and (b) to
the fullest extent possible, the provisions of this Agreement shall be construed
so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
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15. Definitions. For purposes of this Agreement:
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(a) "Arbitrator" means an attorney who is an Independent Counsel and
who is selected in accordance with Section 10(b) of this Agreement to act as
arbitrator.
(b) A "Change in Control" shall be deemed to have occurred if:
(i) Any "person" (as defined in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")),
excluding for this purpose the Corporation or any subsidiary of the
Corporation, or any employee benefit plan of the Corporation or any
subsidiary of the Corporation, or any person or entity organized, appointed
or established by the Corporation for or pursuant to the terms of such plan
which acquires beneficial ownership of voting securities of the
Corporation, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) directly or indirectly of securities of the
Corporation representing twenty percent (20%) or more of the combined
voting power of the Corporation's then outstanding securities; provided,
however, that no Change in Control shall be deemed to have occurred as the
result of an acquisition of securities of the Corporation by the
Corporation which, by reducing the number of voting securities outstanding,
increases the direct or indirect beneficial ownership interest of any
person to twenty percent (20%) or more of the combined voting power of the
Corporation's then outstanding securities, but any subsequent increase in
the direct or indirect beneficial ownership interest of such a person in
the Corporation shall be deemed a Change in Control; and provided further
that if the Board of Directors of the Corporation determines in good faith
that a person who has become the beneficial owner directly or indirectly of
securities of the Corporation representing twenty percent (20%) or more of
the combined voting power of the Corporation's then outstanding securities
has inadvertently reached that level of ownership interest, and if such
person divests as promptly as practicable a sufficient amount of securities
of the Corporation so that the person no longer has a direct or indirect
beneficial ownership interest in twenty percent (20%) or more of the
combined voting power of the Corporation's then outstanding securities,
then no Change in Control shall be deemed to have occurred;
(ii) During any period of two (2) consecutive years (not
including any period prior to the Effective Date of this Agreement),
individuals who at the beginning of such two-year period constitute the
Board of Directors of the Corporation and any new director or directors
(except for any director designated by a person who has entered into an
agreement with the Corporation to effect a transaction described in
subparagraph (i), above, or subparagraph (iii), below) whose election by
the Board or nomination for election by the Corporation's stockholders was
approved by a vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for
any reason to constitute at least a majority of the Board (such individuals
and any such new directors being referred to as the "Incumbent Board"); or
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(iii) Consummation of (1) an agreement for the sale or
disposition of the Corporation or all or substantially all of the
Corporation's assets, (2) a plan of merger or consolidation of the
Corporation with any other corporation, or (3) a similar transaction or
series of transactions involving the Corporation (any transaction described
in parts (1) through (3) of this subparagraph (iii) being referred to as a
"Business Combination"), in each case unless after such a Business
Combination (x) the stockholders of the Corporation immediately prior to
the Business Combination continue to own, directly or indirectly, more than
eighty percent (80%) of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors
of the new (or continued) entity (including, but not by way of limitation,
an entity which as a result of such transaction owns the Corporation or all
or substantially all of the Corporation's former assets either directly or
through one or more subsidiaries) immediately after such Business
Combination, in substantially the same proportion as their ownership of the
Corporation immediately prior to such Business Combination, (y) no person
(excluding any entity resulting from such Business Combination or any
employee benefit plan (or related trust) of the Corporation or of such
entity resulting from such Business Combination) beneficially owns,
directly or indirectly, twenty percent (20%) or more of the then combined
voting power of the then outstanding voting securities of such entity,
except to the extent that such ownership existed prior to the Business
Combination, and (z) at least a majority of the members of the board of
directors of the entity resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
(iv) Approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation.
(c) "Corporate Status" means the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Corporation or of any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise which such person is or was serving at the request of the
Corporation. Any election or appointment of an Indemnitee as a director, or
officer, employee, agent, or fiduciary of the Corporation or of any corporation,
partnership or joint venture which is a subsidiary or affiliate of the
Corporation, or of a trust or employee benefit plan of the Corporation or any
such subsidiary or affiliate, shall conclusively evidence that such Indemnitee's
service in such capacity was at the request of the Corporation.
(d) "Disinterested Director" means a director of the Corporation who
is not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(e) "Expenses" means all attorneys' fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding.
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(f) "Indemnitee" means any person who is, or is threatened to be
made, a witness in or a party to any Proceeding as described in Sections 3, 4, 5
or 6 by reason of his/her Corporate Status.
(g) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, or in the past five years has been, retained to represent: (i) the
Corporation or Indemnitee in any matter material to either such party; or (ii)
any other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Corporation or Indemnitee in an action to determine Indemnitee's
rights under this Agreement.
(h) "Proceeding" means any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, including
all appeals, except one initiated by an Indemnitee unless such Proceeding was
authorized by the Board of Directors or Indemnitee is enforcing his/her rights
to indemnification and/or advancement of Expenses. For purposes of this
definition, a counterclaim, cross claim or third party claim in a Proceeding
shall be considered a separate and distinct Proceeding.
16. Notice. Indemnitee shall give the Corporation notice in writing as
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soon as reasonably practicable of any claim made against him/her for which
indemnity will or could be sought under this Agreement. In addition, Indemnitee
shall, at the Corporation's expense, give the Corporation such information and
cooperation as it may reasonably require and as shall be within Indemnitee's
power. Notice to the Corporation shall be directed to PrivateBancorp, Inc. Xxx
Xxxxx Xxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attn: Secretary (or such other address
as the Corporation shall designate in writing to Indemnitee). Notices to
Indemnitee shall be directed to the address set forth below the signature of the
Indemnitee on this Agreement (or such other address as the Indemnitee shall
designate in writing to the Corporation). Notices shall be deemed received
three (3) days after the date postmarked, if sent by prepaid certified mail,
return receipt requested, properly addressed.
17. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall constitute one and the same original.
18. Applicable Law. This Agreement shall be governed by and construed in
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accordance with Delaware law.
19. Successors and Assigns. This Agreement shall be binding upon the
----------------------
Corporation and its successors and assigns.
20. Amendment. This Agreement may be amended or modified only by a
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writing executed and signed by the parties hereto.
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[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
PRIVATEBANCORP, INC.
By: _______________________________
Its____________________________
INDEMNITEE:
___________________________________
Name:
Address for Notices:
___________________________________
___________________________________
___________________________________
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