EXHIBIT 2.5
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FORM OF
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, made and entered into as of ________ ___, 1999 (the
"Effective Date"), by and between PrivateBank & Trust Company (hereinafter
called the "Employer "), and Xxxxxx X. Xxxxxxxxxx (hereinafter called the
"Employee").
WITNESSETH THAT:
WHEREAS, Employee currently serves as President of Towne Square Financial
Corporation ("TSFC"), which is in the process of organizing a "de novo" Illinois
chartered bank to be located in St. Xxxxxxx, Illinois;
WHEREAS, Employee owns, directly or indirectly, 16 2/3% of the outstanding
common stock of TSFC;
WHEREAS, Employer, an Illinois chartered bank, is a wholly-owned subsidiary
of PrivateBancorp, Inc. ("Bancorp");
WHEREAS, Bancorp has entered into a stock purchase/merger agreement (the
"Acquisition Agreement") between Bancorp, TSFC and the stockholders of TSFC for
the purpose of acquiring 100% of the outstanding common stock of TSFC in
exchange for shares of Bancorp (the "Acquisition");
WHEREAS, in connection with the Acquisition, Bancorp and TSFC have agreed
that Employee would be employed by Employer as of the effective date of the
Acquisition Agreement; and
WHEREAS, subject to the consummation of the Acquisition, Employer desires
to employ Employee, and Employee desires to serve, as Managing Director of the
new St. Xxxxxxx Office of Employer (the "Office"), or in the event Employer does
not receive regulatory approval to establish the Office, a position with
comparable duties and responsibilities.
NOW THEREFORE, in consideration of the mutual promises herein contained and
subject to the conditions precedent that the Acquisition shall be consummated,
the parties agree as follows:
1. Employment and Term.
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(a) Employment. The Employer shall employ Employee as the Managing
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Director of the Office, and the Employee shall so serve for the term set forth
in this Paragraph.
(b) Term. The initial term of the Employee's employment under this
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Agreement shall commence on the Effective Date hereof and end on the third
anniversary date of such Effective Date (the "Initial Term") subject to
extension of such Initial Term as hereafter provided and subject to earlier
termination as provided in Paragraph 7.
(c) The Initial Term shall be automatically extended for one (1)
additional year, after the Initial Term expires, and thereafter a similar
extension shall occur on each succeeding anniversary date of the Effective Date
hereof, unless at least ninety (90) days prior to the end of the Initial Term or
any other anniversary date, either the Board of Directors of Employer or the
Employee gives written notice to the other that the term of this Agreement shall
not be so extended. In the event the Board of Directors of Employer exercises
its option not to extend the term in the manner described above, Employee shall
be considered discharged without cause, and shall receive the benefits described
in Paragraph 8(b).
2. Duties and Responsibilities.
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(a) The duties and responsibilities of Employee shall be of an
employee nature as shall be required by the Employer in the conduct of its
business. Employee's powers and authority shall include such duties and
responsibilities as from time to time may be assigned to him by the Board of
Directors of Employer consistent with the position of Managing Director of an
office of Employer, including, but not limited to in the event Employer receives
regulatory approval to establish the Office, the organization, development,
administration, growth and success of the Office. Employee recognizes, that
during the period of his employment hereunder, he owes an undivided duty of
loyalty to the Employer and agrees to devote his entire business time and
attention to the performance of said duties and responsibilities and to use his
best efforts to promote and develop the business of the Employer. Employee will
not perform any duties for any other business without the prior written consent
of the Employer but may engage in charitable, civic or community activities,
provided that such duties or activities do not materially interfere with the
proper performance of his duties under this Agreement.
(b) Notwithstanding that this Agreement provides for the employment
of Employee as the Employer's Managing Director of the Office or a similar
position as described in Paragraph 1(a), nothing herein contained shall assure
Employee, nor in any manner be construed to constitute an agreement by the
Employer to continue the employment of Employee after the expiration of this
Agreement in such capacity or in any other capacity.
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3. Salary.
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(a) Base Salary. For services performed by the Employee for the
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Employer pursuant to this Agreement during the period of employment as provided
in Paragraph 1(b) hereof, the Employer shall pay the Employee a base salary at
the rate of One hundred twelve thousand dollars ($112,000) per year, payable in
substantially equal installments in accordance with the Employer's regular
payroll practices. The Employee's base salary (with any increases under
paragraph (b), below) shall not be subject to reduction without the Employee's
written consent. Any compensation which may be paid to the Employee under any
additional compensation or incentive plan of the Employer or which may be
otherwise authorized from time to time by the Board of Employer (or an
appropriate committee thereof) shall be in addition to the base salary to which
the Employee shall be entitled under this Agreement.
(b) Board Review of Base Salary. Employee's base salary shall be
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subject to review from time to time, and the Employer may (but is not required
to) increase the base salary as the Board of Employer (or a duly authorized
committee thereof), in its discretion, may determine.
4. Annual Bonuses. For each fiscal year during the term of employment,
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the Employee shall be eligible to receive a bonus in the amount, if any, as may
be determined from time to time by the Board of Directors of Employer in its
sole discretion. Employee shall receive a $25,000 bonus for the 1999 calendar
year ("1999 Bonus"). The 1999 Bonus shall be payable in January, 2000.
5. Equity Incentive Compensation.
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(a) Participation in Stock Incentive Plan. During the term of
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employment hereunder the Employee shall be eligible to participate in the
Bancorp Stock Incentive Plan ("Stock Incentive Plan"), and in any other equity-
based incentive compensation plan or program adopted by Bancorp, including (but
not by way of limitation) any plan providing for the granting of (i) options to
purchase stock, (ii) restricted stock or (iii) similar equity-based units or
interests to officers of the Employer.
(b) Incentive Stock Options. The Employer shall grant to Employee an
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option to purchase 7,000 shares of Bancorp common stock (such shares calculated
after taking into effect the stock split of Bancorp scheduled to occur on or
about June 30, 1999), which option shall be granted under the Stock Incentive
Plan, and shall provide for a vesting schedule as follows (i) fifty percent
(50%) of the shares granted shall vest on the second anniversary of the grant;
(ii) seventy-five percent (75%) of the shares granted shall vest on the third
anniversary of the grant; and (iii) one hundred percent (100%) of the shares
granted shall vest on the fourth anniversary of the grant. The strike price for
said option shall be the initial offering price for the Bancorp initial public
offering ("IPO") now pending.
(c) Restricted Stock. The Employer shall grant to Employee a
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restricted stock award for 3,000 shares of Bancorp common stock (such shares
calculated after taking into effect the
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stock split of Bancorp scheduled to occur on or about June 30, 1999), which
award shall be granted under the Stock Incentive Plan, and shall vest 100% on
the fifth anniversary date of the Effective Date. The incentive stock option and
the restricted stock award shall be evidenced by separate agreements between
Bancorp and Employee.
(d) Delay or Termination of the Initial Public Offering. In the event
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the IPO of Bancorp is projected to be delayed beyond July 31, 1999, or is
terminated, for any reason, the fair market value (strike price) of the
incentive stock options and restricted stock granted to Employee pursuant to
Paragraphs 5(b) and (c) above, shall be seventeen dollars ($17.00) per share.
6. Other Benefits. In addition to the compensation described in
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Paragraphs 3, 4 and 5, above, the Employee shall also be entitled to the
following:
(a) Sign-on Bonus. Employee shall be granted a $150,000 sign-on bonus
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upon execution of this Agreement ("Sign-on Bonus"). The Sign-on Bonus shall be
paid as follows: (i) $75,000 payable on the date the Office is fully functional
and first opens for business at 00 Xxxxx Xxxxxx Xxxxxx, Xx. Xxxxxxx, Xxxxxxxx
00000 (the "Opening Date"); (ii) $75,000 payable on the six-month anniversary of
the Opening Date.
(b) No-interest Loan. Bancorp has provided Employee with a no-
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interest loan in the amount of $175,000 (the "Employee Loan") which is
evidenced by a promissory note. The proceeds of the Employee Loan have been
used by Employee to purchase shares of common stock of Bancorp pursuant to the
IPO of Employer. The Employee Loan shall be repaid with the proceeds of the
Sign-On Bonus and the 1999 Bonus, the proceeds which shall be directly applied
by the Employer to reduce the Employee Loan. Such loan shall be repaid in full
by the earlier of: (i) the six-month anniversary of the Opening Date, (ii)
December 31, 2000, (iii) the termination of Employee's employment with Employer,
or (iv) the sale of the shares of common stock of Bancorp. If the IPO is delayed
or terminated as provided above, such shares shall be sold directly by the
Company to the Employee at the Fair Market Value.
(c) Participation in Benefit Plans. The Employee shall be entitled to
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participate in all of the various retirement, welfare, fringe benefit, and
expense reimbursement plans, programs and arrangements of the Employer to the
extent the Employee is eligible for participation under the terms of such plans,
programs and arrangements, including, but not limited to non-qualified
retirement programs and deferred compensation plans.
(d) Vacation. The Employee shall be entitled to such number of days
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of vacation with pay during each calendar year during the period of employment
in accordance with the Employer's applicable personnel policy as in effect from
time to time.
(e) Employee Perquisites. The Employer shall furnish Employee with
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such perquisites which may from time to time be provided by the Employer which
are suitable to the Employee's position and adequate for the performance of his
duties hereunder and reasonable in the circumstances.
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(f) Expense Reimbursement. The Employer shall reimburse Employee's
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reasonable expenses incurred in performing services hereunder, which are
incurred and accounted for in accordance with Employer's regular policies and
procedures applicable thereto including, but not limited to, a five hundred
dollar ($500) per month car allowance from Employer.
(g) Country Club Membership. Employer shall pay Employee's monthly
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dues (but not assessments) at the St. Xxxxxxx Country Club.
7. Termination. Unless earlier terminated in accordance with the
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following provisions of this Paragraph 7, the Employer shall continue to employ
the Employee and the Employee shall remain employed by the Employer during the
entire term of this Agreement as set forth in Paragraph 1(b) and any extension
of said term provided under Paragraph 1(c). Paragraph 8 hereof sets forth
certain obligations of the Employer in the event that the Employee's employment
hereunder is terminated. Certain capitalized terms used in this Paragraph 7 and
in Paragraph 8 hereof are defined in Paragraph 7(d), below.
(a) Death or Disability. Except to the extent otherwise provided in
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Paragraph 8 with respect to certain post-Date of Termination payment obligations
of the Employer, this Agreement shall terminate immediately as of the Date of
Termination in the event of the Employee's death or in the event that the
Employee becomes disabled. The Employee will be deemed to be disabled upon the
earlier of (i) the end of a six (6)-consecutive month period, or of an aggregate
period of nine (9) months out of any consecutive twelve (12) months, during
which, by reason of physical or mental injury or disease, the Employee has been
unable to perform substantially all of his usual and customary duties under this
Agreement or (ii) the date that a reputable physician selected by the Board of
Directors of Employer, and as to whom the Employee has no reasonable objection,
determines in writing that the Employee will, by reason of physical or mental
injury or disease, be unable to perform substantially all of the Employee's
usual and customary duties under this Agreement for a period of at least six (6)
consecutive months. If any question arises as to whether the Employee is
disabled, upon reasonable request therefor by the Board of Directors of
Employer, the Employee shall submit to reasonable medical examination for the
purpose of determining the existence, nature and extent of any such disability.
The Board of Directors of Employer shall promptly give the Employee written
notice of any such determination of the Employee's disability and of any
decision of the Board of Directors of Employer to terminate the Employee's
employment by reason thereof. In the event of disability, until the Date of
Termination, the base salary payable to the Employee under Paragraph 3 hereof
shall be reduced dollar-for-dollar by the amount of disability benefits, if any,
paid to the Employee in accordance with any disability policy or program of the
Employer.
(b) Discharge for Cause. In accordance with the procedures
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hereinafter set forth, the Board of Directors of Employer may discharge the
Employee from his employment hereunder for Cause (as hereinafter defined).
Except to the extent otherwise provided in Paragraph 8 with respect to certain
post-Date of Termination obligations of the Employer, this Agreement shall
terminate immediately as of the Date of Termination in the event the Employee is
discharged for
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Cause. Any discharge of the Employee for Cause shall be communicated by a Notice
of Termination to the Employee given in accordance with Paragraph 14 of this
Agreement.
(c) Termination for Other Reasons. The Employer may discharge the
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Employee without Cause by giving written notice to the Employee in accordance
with Paragraph 14. The Employee may resign from his employment with or without
Good Reason by giving written notice to the Employer in accordance with
Paragraph 14 at least thirty (30) days prior to the Date of Termination;
provided, however, that no resignation shall be treated as a resignation for
Good Reason unless the written notice thereof is given within sixty (60) days
after the occurrence which constitutes "Good Reason." Paragraph 8 below
provides for the consequences of any such termination.
(d) Definitions. For purposes of this Agreement, the following
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capitalized terms shall have the meanings set forth below:
(i) "Accrued Obligations" shall mean, as of the Date of
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Termination, the sum of (A) the Employee's base salary under Paragraph 3 through
the Date of Termination to the extent not theretofore paid, (B) the amount of
any deferred compensation and other cash compensation accrued by the Employee as
of the Date of Termination to the extent not theretofore paid, (C) any vacation
pay, expense reimbursements and other cash entitlements accrued by the Employee
as of the Date of Termination to the extent not theretofore paid, (D) any grants
and awards vested or accrued under any equity-based incentive compensation plan
or program and (E) all other benefits which have accrued as of the Date of
Termination. For the purpose of this Paragraph 7(d)(i), except as provided in
the applicable plan, program or policy, amounts shall be deemed to accrue
ratably over the period during which they are earned, but no discretionary
compensation shall be deemed earned or accrued until it is specifically approved
by the pertinent Board of Directors in accordance with the applicable plan,
program or policy.
(ii) "Cause" shall mean (A) any felony conviction; (B) any act
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(reasonably proven by Employer) of fraud or embezzlement by the Employee or any
substantial breach of trust by the Employee related to the Employee's employment
with Employer; (C) a written recommendation for removal of the Employee from his
position with Employer by any of Employer's federal or state regulators, in
which case Employer shall furnish written notice of the foregoing to Employee
and Employee shall then have forty-five (45) days from the date of said notice
to have the regulators withdraw their recommendation; (D) any material violation
by the Employee of any local, state, or federal law or regulation, the
Employee's compliance with which is material to the performance of his duties
under this Agreement; (E) Employee's refusal to so comply with the reasonable
rules, regulations, policies, directions, and restrictions as may be established
from time to time by the Board of Directors of Employer (and which Employee has
been advised in writing) or the willful failure or misconduct or gross
negligence by Employee in connection with the performance of the Employee's
duties, responsibilities, agreements, and covenants hereunder, which misconduct,
gross negligence, or refusal to comply continues for a period of ten (10) days
after written notice from Employer specifically identifying the manner in which
Employee has refused or grossly negligently or willfully failed to fulfill or
perform any such
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rules, regulations, policies, directions, restrictions, duties,
responsibilities, agreements or covenants hereunder; (F) repeated abuse
(following at least one written warning) of alcohol or any illegal use of
narcotics; or (G) any other material breach of this Agreement by Employee.
(iii) "Change in Control" shall mean the occurrence of any one
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of the following events:
(A) Any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended), other than
(i) a trustee or other fiduciary holding securities under an employee
benefit plan of Bancorp or any of its subsidiaries, or (ii) a corporation
owned directly or indirectly by the stockholders of Bancorp in
substantially the same proportions as their ownership of stock of Bancorp,
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of Bancorp representing 25% or
more of the total voting power of the then outstanding shares of capital
stock of Bancorp entitled to vote generally in the election of directors
(the "Voting Stock"), provided, however, that the following shall not
constitute a change in control: (1) such person becomes a beneficial owner
of 25% or more of the Voting Stock as the result of an acquisition of such
Voting Stock directly from Bancorp, or (2) such person becomes a beneficial
owner of 25% or more of the Voting Stock as a result of the decrease in the
number of outstanding shares of Voting Stock caused by the repurchase of
shares by Bancorp; provided, further, that in the event a person described
in clause (1) or (2) shall thereafter increase (other than in circumstances
described in clause (1) or (2)) beneficial ownership of stock representing
more than 1% of the Voting Stock, such person shall be deemed to become a
beneficial owner of 25% or more of the Voting Stock for purposes of this
paragraph (A), provided such person continues to beneficially own 25% or
more of the Voting Stock after such subsequent increase in beneficial
ownership, or
(B) During any period of two consecutive years,
individuals (the "Incumbent Board"), who at the beginning of such period
constitute the board of directors of Bancorp, and any new director, whose
election by the board of directors of Bancorp or nomination for election by
Bancorp's stockholders was approved by a vote of at least two-thirds (2/3)
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 a majority
thereof, or
(C) Consummation of a reorganization, merger or
consolidation or the sale or other disposition of all or substantially all
of the assets of Bancorp (a "Business Combination"), in each case, unless
(1) all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Voting Stock immediately prior to
such Business Combination beneficially own, directly or indirectly, more
than 50% of the total voting power represented by the voting securities
entitled to vote generally in the election of directors of the Corporation
resulting from the Business Combination (including, without limitation, a
Corporation which as a result of the Business Combination owns Bancorp's or
all or substantially all of Bancorp's assets either directly or through one
or more subsidiaries)
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in substantially the same proportions as their ownership, immediately prior
to the Business Combination of the Voting Stock of Bancorp, and (2) at
least a majority of the members of the board of directors of the
Corporation resulting from the Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or
action of the Incumbent Board, providing for such Business Combination; or
(D) the stockholders of Bancorp approve a plan of complete
liquidation or dissolution of Bancorp.
The board of directors of Employer has final authority to construe and interpret
the provisions of the foregoing paragraphs (A), (B), (C) and (D) and to
determine the exact date on which a change in control has been deemed to have
occurred thereunder.
(iv) "Date of Termination" shall mean (A) in the event of a
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discharge of the Employee for or without Cause, the date the Employee receives a
Notice of Termination, or any later date specified in such Notice of
Termination, as the case may be, (B) in the event of a resignation by the
Employee, the date specified in the written notice to the Employee, which date
shall be no less than thirty (30) days from the date of such written notice, (C)
in the event of the Employee's death, the date of the Employee's death, and (D)
in the event of termination of the Employee's employment by reason of disability
pursuant to Paragraph 7(a), the date the Employee receives written notice of
such termination.
(v) "Good Reason" shall mean the occurrence, other than in
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connection with a discharge, of any of the following without the Employee's
consent: (A) Employee is not re-elected or is removed from the position with the
Employer set forth in Paragraph 1(a), other than as a result of Employee's
election or appointment to positions of equal or superior scope and
responsibility; or (B) Employee shall fail to be vested (or continue to be
vested) by the Employer with the power and authority of any of said position,
excluding for this purpose any isolated action not taken in bad faith and which
is remedied by the Employer promptly after receipt of written notice thereof
given by the Employee in accordance with Paragraph 14; or (C) any failure by the
Employer to comply with any of the provisions of this Agreement, other than any
isolated, insubstantial and inadvertent failure not occurring in bad faith and
which is remedied by the Employer promptly after receipt of written notice
thereof given by the Employee in accordance with Paragraph 14; or (D) the
Employer requiring the Employee to be based at an office or location which is
more than 50 miles from the Employee's office as of the Effective Date.
(vi) "Notice of Termination" shall mean a written notice which
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(A) indicates the specific termination provision in this Agreement relied upon,
(B) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Employee's employment under the provision
so indicated and (C) if the Date of Termination is to be other than the date of
receipt of such notice, specifies the termination date.
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8. Obligations of the Employer Upon Termination. The following
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provisions describe the obligations of the Employer to the Employee under this
Agreement upon termination of employment. However, except as explicitly
provided in this Agreement, nothing in this Agreement shall limit or otherwise
adversely affect any rights which the Employee may have under applicable law,
under any other agreement with the Employer or any of its affiliates or
subsidiaries, or under any compensation or benefit plan, program, policy or
practice of the Employer or any of its affiliates or subsidiaries.
(a) Death, Disability, Discharge for Cause or Resignation Without
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Good Reason. In the event this Agreement terminates pursuant to Paragraph 7(a)
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by reason of the death or disability of the Employee, or pursuant to Paragraph
7(b) by reason of the discharge of the Employee by the Employer for Cause or
pursuant to Paragraph 7(c) by reason of the resignation of the Employee other
than for Good Reason, the Employer shall pay to the Employee, or his heirs or
estate, in the event of the Employee's death, all Accrued Obligations in a lump
sum in cash within thirty (30) days after the Date of Termination; provided,
however, that any portion of the Accrued Obligations which consists of bonus,
deferred compensation, incentive compensation, insurance benefits or other
employee benefits shall be determined and paid in accordance with the terms of
the relevant plan or policy as applicable to the Employee. In addition, in the
event of Employee's death during the term hereof, an additional six (6) month
base salary shall be due Employee.
(b) Discharge Without Cause, Expiration of Term or Resignation with
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Good Reason. In the event that this Agreement terminates pursuant to: (A)
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Paragraph 7(c) by reason of the discharge of the Employee by the Employer other
than for Cause or his disability or his death; (B) due to the resignation of the
Employee for Good Reason, or (C) because the term hereof has expired:
(i) The Employer shall pay all Accrued Obligations to the
Employee in a lump sum in cash within thirty (30) days after the Date of
Termination; provided, however, that any portion of the Accrued Obligations
which consists of bonus, deferred compensation, incentive compensation,
insurance benefits or other employee benefits shall be determined and paid in
accordance with the terms of the relevant plan or policy as applicable to the
Employee. Notwithstanding any other contract between Employee and Employer,
Employer plan or policy to the contrary, all shares granted to Employee under
Paragraph 5(b) and (c) shall vest in full upon any termination of this Agreement
pursuant to Paragraph 7(c) other than by way of a resignation by Employee where
such resignation is not justified by "Good Reason" as provided in said Paragraph
7(c);
(ii) Within thirty (30) days after the Date of Termination, the
Employer shall pay to the Employee a bonus for the year during which termination
occurs, calculated as a prorata portion of his prior year's bonus amount (if
any) based on the number of days elapsed during the year through the Date of
Termination;
(iii) Continuation for a period of twelve (12) months (the
"Severance Period") of his then current annual base salary, payable in
substantially equal installments in
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accordance with the Employer's regular payroll practices, provided, however, in
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the event Employee is discharged by the Employer other than for Cause or his
disability or death under Paragraph 7(c) above, the Severance Period shall be
the greater of a period of twelve (12) months, or the remainder of the Initial
Term hereof. In the event Employee's Severance Period is extended beyond a
period of twelve (12) months, pursuant to this subparagraph any compensation
received, or to be received, by Employee from another employer or party
compensating Employee for services rendered during, or with respect to, such
period of time greater than twelve (12) months shall be deducted from any
compensation owed pursuant to this Paragraph 8(b);
(iv) Continuation for the Severance Period of the Employee's
right to maintain COBRA continuation coverage under the applicable plans at
premium rates on the same "cost-sharing" basis as the applicable premiums paid
for such coverage by active employees as of the Date of Termination; and
(v) Outplacement counseling, the scope and provider of which
shall be selected by the Employer for a period beginning on the Date of
Termination and ending on the date the Employee is first employed elsewhere or
otherwise is provided compensated services of any type (including self-
employment), provided that in no event shall such outplacement services be
provided for a period greater than two (2) years.
In the event that upon the expiration of the Severance Period, Employee is not
employed or otherwise providing compensated services of any type (including
self-employment), and has not done so during the final ninety (90) days of the
Severance Period, the Employer may, in its sole discretion (which discretion
need not be applied in a consistent manner from one Employee to another), agree
to extend the Severance Period for up to an additional six (6) months (the
"Extended Severance Period"). The payments to Employee described in
subparagraph (iii) above and the reduced COBRA continuation premium described in
subparagraph (iv) above shall continue during the Extended Severance Period,
subject to earlier termination effective as of the first day of the month
following the date on which the Employee becomes employed or provides
compensated services of any type (including self-employment).
The Employee shall provide such information as the Employer may reasonably
request to determine Employee's continued eligibility for the payments and
benefits provided by this Paragraph 8(b).
(c) Effect of Change in Control. In the event that a Change in
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Control occurs and this Agreement thereafter terminates pursuant to Paragraph
7(c) either (a) by reason of the discharge of the Employee by the Employer
(other than for Cause, death or disability), or (b) by reason of the resignation
of the Employee for Good Reason; with such resignation occurring within one year
from the effective date of the Change in Control:
(i) The Employer shall pay all Accrued Obligations to the
Employee in a lump sum in cash within thirty (30) days after the Date of
Termination; provided, however, that any portion of the Accrued Obligations
which consists of bonus, deferred compensation, incentive compensation,
insurance benefits or other employee benefits shall be determined and paid in
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accordance with the terms of the relevant plan or policy as applicable to the
Employee, notwithstanding any other contract between Employee and Employer,
Employer plan or policy to the contrary, all shares granted to Employee under
Paragraph 5(b) and (c) shall vest in full upon the termination of this Agreement
under the circumstances set forth in Paragraph 8(c);
(ii) Within thirty (30) days after the Date of Termination, the
Employer shall pay to the Employee a bonus for the year during which termination
occurs, calculated as a prorata portion of his prior year's bonus amount (if
any) based on the number of days elapsed during the year through the Date of
Termination;
(iii) The Employer shall pay the Employee a lump sum payment
within thirty (30) days after such termination of employment in the amount of
two (2) times the sum of the following:
(A) the amount of Employee's annual base salary
determined as of the Date of Termination, or the date immediately preceding
the date of the Change in Control, whichever is greater; plus
(B) the greater of (A) the Employee's bonus amount, if
any, for the contract year immediately preceding that in which the Date of
Termination occurs, or (B) the average of the sum of the bonus amounts
earned by Employee with respect to the three (3) contract years immediately
preceding the contract year in which Employee's Date of Termination occurs,
or if such sum would be greater, with respect to the three (3) contract
years immediately preceding the contract year of the date of the Change in
Control; plus
(C) the sum of:
(I) the annual value of the contributions that
would have been expected to be made or credited by the Employer to,
and benefits expected to be accrued under, the qualified and non-
qualified employee profit sharing, 401(k), pension and any other
benefit plans maintained by the Employer to or for the benefit of
Employee; plus
(II) the annual value of the Other Benefits
described in Paragraph 6(c) and (e) above.
For purposes of paragraph (C)(I) above, the annual value of the contributions
and accruals to or under the employee benefit plans shall be determined on the
basis of the actual rate of contributions or accruals, as applicable, and the
provisions of the plans as in effect during the contract year immediately
preceding the date of the Change in Control, or if the value so determined would
be greater, during the contract year immediately preceding the Date of
Termination. The "annual value" of the Employee perquisites described in
Paragraph 6(e) for purposes of paragraph (C)(I) above shall be 7.5% of the
annual base salary amount applicable under clause (iii)(A) above.
-11-
Employee shall also be entitled to out-placement counseling from a firm selected
by Employer for a period beginning on the date of termination of employment and
ending on the date Employee is first employed or otherwise providing compensated
services of any type (including, but not limited to, self-employment), provided,
that in no event shall Employee be entitled to out-placement counseling after
the date which is two (2) years from the date of termination of employment.
Notwithstanding the foregoing, if a Change in Control occurs and this Agreement
is terminated prior to the Change in Control pursuant to Paragraph 7(c) by
reason of the discharge of the Employee by the Employer, other than for Cause or
death or disability, or by reason of the resignation of the Employee for Good
Reason, then Employee shall be deemed for purposes of this Paragraph 8(c) to
have so terminated pursuant to Paragraph 7(c) immediately following the date the
Change in Control occurs if it is reasonably demonstrated by Employee that such
earlier termination was (i) at the request of a third party who had taken steps
reasonably calculated to effect the Change in Control, or (ii) otherwise arose,
or the circumstances that precipitated the termination otherwise arose, in
connection with or in anticipation of the Change in Control.
(d) Effect on Other Amounts. The payments provided for in this
-----------------------
Paragraph 8 shall be, in addition to all other sums then payable and owing to
Employee, be subject to applicable federal and state income and other
withholding taxes and shall be in full settlement and satisfaction of all of
Employee's claims and demands. Upon such termination of this Agreement,
Employer shall have no obligations under this Agreement, other than its
obligations under this Paragraph 8, and Employee shall have no obligations under
this Agreement, other than Employee's obligations under Paragraphs 12 and 15;
the parties are also parties to the separate Non-Compete and Support Agreement
between Employee and Employer ("Non-Compete and Support Agreement") (attached
hereto as Exhibit B) which shall survive the termination hereof.
(e) Conditions. Any payments of benefits made or provided pursuant to
----------
this Paragraph 8 are subject to the Employee's:
(i) compliance with the provisions of Paragraph 12 and the
separate Non-Compete and Support Agreement to which Employee is a party;
(ii) delivery to the Employer of an executed Release and
Severance Agreement, which shall be substantially in the form attached hereto as
Exhibit A, with such changes therein or additions thereto as needed under then
applicable law to give effect to its intent and purpose; and
(iii) delivery to the Employer of a resignation from all
offices, directorships and fiduciary positions with the Employer, its affiliates
and employee benefit plans.
Notwithstanding the due date of any post-employment payments, any amounts due
under this Paragraph 8 shall not be due until after the expiration of any
revocation period applicable to the Release and Severance Agreement.
-12-
9. Certain Additional Payments by the Employer.
-------------------------------------------
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the
Employer to or for the benefit of the Employee (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Paragraph 9) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended, (the "Code")
or if any interest or penalties are incurred by the Employee with respect to
such excise tax (such excise tax, together with any such interest and penalties,
being hereinafter collectively referred to as the "Excise Tax"), then the
Employee shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that, after payment by the Employee of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payment.
(b) Subject to the provisions of paragraph (c), below, all
determinations required to be made under this Paragraph 9, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by the independent public accountants then regularly retained by the Employer
(the "Accounting Firm") in consultation with counsel acceptable to Employee,
which shall provide detailed supporting calculations both to the Employer and
the Employee within fifteen (15) business days of the receipt of notice from the
Employee that there has been a Payment, or such earlier time as is requested by
the Employer. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting a Change in Control, the
Employer shall appoint another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder) in consultation with counsel acceptable to
Employee. All fees and expenses of the Accounting Firm and such counsel shall
be borne solely by the Employer. Any Gross-Up Payment, as determined pursuant
to this Paragraph 9, shall be paid by the Employer to the Employee within five
(5) days of the receipt of the Accounting Firm's determination. If the
Accounting Firm determines that no Excise Tax is payable by the Employee, it
shall furnish the Employee with a written opinion that failure to report the
Excise Tax on the Employee's applicable federal income tax return would not
result in the imposition of a negligence or similar penalty. Any good faith
determination by the Accounting Firm shall be binding upon the Employer and the
Employee. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Employer should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Employer
exhausts its remedies pursuant to paragraph (c), below, and the Employee
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Employer to or for the benefit of the
Employee.
-13-
(c) The Employee shall notify the Employer in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Employer of a Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than fifteen (15) business days after the Employee is
informed in writing of such claim and shall apprise the Employer of the nature
of such claim and the date on which such claim is requested to be paid. The
Employee shall not pay such claim prior to the expiration of the thirty (30)-day
period following the date on which Employee gives such notice to the Employer
(or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Employer notifies the Employee in writing
prior to the expiration of such period that it desires to contest such claim,
the Employee shall:
(i) Give the Employer any information reasonably requested by
the Employer relating to such claim,
(ii) Take such action in connection with contesting such claim
as the Employer shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Employer,
(iii) Cooperate with the Employer in good faith in order
effectively to contest such claim, and
(iv) Permit the Employer to participate in any proceedings
relating to such claim;
provided, however, that the Employer shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Employee harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing provisions of
this paragraph (c), the Employer shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Employee to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner; and the Employee agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Employer shall
determine; provided, however, that if the Employer directs the Employee to pay
such claim and xxx for a refund, the Employer shall advance the amount of such
payment to the Employee on an interest-free basis and shall indemnify and hold
the Employee harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Employee with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Employer's control of the contest shall be limited to
issues with
-14-
respect to which a Gross-Up Payment would be payable hereunder and the Employee
shall be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount advanced by
the Employer pursuant to paragraph (c), above, the Employee becomes entitled to
receive any refund with respect to such claim, the Employee shall (subject to
the Employer's complying with the requirements of said paragraph (c)) promptly
pay to the Employer the amount of such refund (together with any interest paid
or credited thereon, after taxes applicable thereto). If, after the receipt by
the Employee of an amount advanced by the Employer pursuant to said paragraph
(c), a determination is made that the Employee shall not be entitled to any
refund with respect to such claim and the Employer does not notify the Employee
in writing of its intent to contest such denial of refund prior to the
expiration of thirty (30) days after such determination, then such advance shall
be forgiven and shall not be required to be repaid; and the amount of such
advance shall offset, to the extent thereof, the amount of the Gross-Up Payment
required to be paid.
10. Dispute Resolution. In the event any dispute arises and the parties
------------------
after good faith efforts are unable to agree as to the calculation of the
amounts payable under this Agreement, it shall be settled in accordance with the
majority opinion of a committee consisting of an accountant chosen by the
Employer, an accountant chosen by Employee and an independent accountant
acceptable to both Employee and the Employer, as the case may be. The
committee's determination shall be binding and conclusive on the parties hereto.
The Employer shall pay all fees and expenses of the dispute resolution.
11. Enforcement. In the event the Employer shall fail to pay any amounts
-----------
due to Employee under this Agreement as they come due, the Employer agrees to
pay interest on such amounts at a rate equal to the prime rate (as from time to
time published in The Wall Street Journal (Midwest Edition) plus four percent
-----------------------
(4%) per annum. The Employer agrees that Employee and any successor shall be
entitled to recover all costs of enforcing any provision of this Agreement,
including reasonable attorneys' fees and costs of litigation.
12. Confidential Information. Employee shall not at any time during or
------------------------
following his employment hereunder, directly or indirectly, disclose or use on
his behalf or another's behalf, publish or communicate, except in the course of
his employment and in the pursuit of the business of the Employer or Bancorp or
affiliates, any proprietary information or data of the Employer or Bancorp or
affiliates, which is not generally known in the banking business and which the
Employer and/or Bancorp may reasonably regard as confidential and proprietary.
Employee recognizes and acknowledges that all knowledge and information which he
has or may acquire in the course of his employment, such as, but not limited to
the business, developments, procedures, techniques, activities or services of
the Employer and/or Bancorp or the business affairs and activities of any
customer, prospective customer, individual firm or entity doing business with
the Employer and/or Bancorp are its sole valuable property, and shall be held by
Employee in confidence and in trust for their sole benefit. All records of
every nature and description which come into Employee's possession, whether
prepared by him, or otherwise, shall remain the sole property of the Employer
-15-
and/or Bancorp and upon termination of his employment for any reason, said
records shall be left with the Employer and/or Bancorp as part of its property.
13. Remedies. Employee acknowledges that the restraints and agreements
--------
herein provided are fair and reasonable, that enforcement of the provisions of
Paragraph 12 and the Non-Compete and Support Agreement will not cause him undue
hardship and that said provisions are reasonably necessary and commensurate with
the need to protect the Employer and its legitimate and proprietary business
interests and property from irreparable harm. Employee acknowledges and agrees
that (a) a breach of any of the covenants and provisions contained in Paragraph
12 or the Non-Compete and Support Agreement, will result in irreparable harm to
the business of the Employer, (b) a remedy at law in the form of monetary
damages for any breach by him of any of the covenants and provisions contained
in Paragraph 12 or the Non-Compete and Support Agreement is inadequate, (c) in
addition to any remedy at law or equity for such breach, the Employer shall be
entitled to institute and maintain appropriate proceedings in equity, including
a suit for injunction to enforce the specific performance by Employee of the
obligations hereunder and to enjoin Employee from engaging in any activity in
violation hereof and (d) the covenants on his part contained in Paragraph 12 or
the Non-Compete and Support Agreement, shall be construed as agreements
independent of any other provisions in this Agreement, and the existence of any
claim, setoff or cause of action by Employee against the Employer, whether
predicated on this Agreement or otherwise, shall not constitute a defense or bar
to the specific enforcement by the Employer of said covenants. In the event of
a breach or a violation by Employee of any of the covenants and provisions of
this Agreement, the running of the Non-Compete Period, as defined in the Non-
Compete and Support Agreement (but not of Employee's obligation thereunder),
shall be tolled during the period of the continuance of any actual breach or
violation.
14. Notices. Any notice or other communication required or permitted to
-------
be given hereunder shall be determined to have been duly given to any party (a)
upon delivery to the address of such party specified below if delivered
personally or by courier; (b) upon dispatch if transmitted by telecopy or other
means of facsimile, provided a copy thereof is also sent by regular mail or
courier; or (c) within forty-eight (48) hours after deposit thereof in the U.S.
mail, postage prepaid, for delivery as certified mail, return receipt requested,
addressed, in any case to the party at the following address(es) or telecopy
numbers:
(a) If to Employee, at the address set forth on the signature page
hereof.
(b) If to the Employer:
PrivateBancorp, Inc.
Ten Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
-16-
with a copy to:
Vedder, Price, Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xx. Xxxxxx X'Xxxxxx
Telecopy No.: (000) 000-0000
or to such other address(es) or telecopy number(s) as any party may designate by
Written Notice in the aforesaid manner.
15. Indemnification.
---------------
(a) In the event that legal action is instituted against Employee
during or after the term hereof by a third party (or parties) based on the
performance or nonperformance by Employee of his duties hereunder, the Employer
will assume the defense of such action by its attorneys or attorneys selected by
Employee reasonably satisfactory to the Employer and advance the costs and
expenses thereof (including reasonable attorneys' fees) without prejudice to or
waiver by the Employer of its rights and remedies against Employee. In the
event that there is a final judgment entered against Employee in any such
litigation, and the Employer's Board of Directors determines that Employee
should, in accordance with its charter, By-Laws, or insurance reimburse such
entities, Employee shall be liable to the Employer for all such costs and
expenses paid or incurred by them in the defense of any such litigation (the
"Reimbursement Amount"). The Reimbursement Amount shall be paid by Employee
within thirty (30) days after rendition of the final judgment. The Employer
shall be entitled to set off the reimbursement amount against all sums which may
be owed or payable by the Employer to Employee hereunder or otherwise. The
parties shall cooperate in the defense of any asserted claim, demand or
liability against Employee or the Employer or its subsidiaries or affiliates.
The term "final judgment" as used herein shall be defined to mean the decision
of a court of competent jurisdiction, and in the event of an appeal, then the
decision of the appellate court, after petition for rehearing has been denied,
or the time for filing the same (or the filing of further appeal) has expired.
(b) The rights to indemnification under this Paragraph 15 shall be in
addition to any rights which Employee may now or hereafter have under the
charter or By-laws of the Employer or any of its affiliates or subsidiaries,
under any insurance contract maintained by the Employer or any of its affiliates
or subsidiaries, or any agreement between Employee and the Employer or any of
its affiliates or subsidiaries.
16. Full Settlement; No Mitigation. The Employer's obligation to make
------------------------------
the payments and provide the benefits provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any set-
off, counterclaim, recoupment, defense or other claim, right or action which the
Employer may have against the Employee or others. In no event shall the
Employee be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to the Employee under any of the provisions
of this Agreement, and such
-17-
amounts shall not be reduced whether or not the Employee obtains other
employment, except as provided in Paragraph 8(b)(iii).
17. Payment in the Event of Death. In the event payment is due and owing
-----------------------------
by the Employer to Employee under this Agreement upon the death of Employee,
payment shall be made to such beneficiary as Employee may designate in writing,
or failing such designation, then the executor of his estate, in full settlement
and satisfaction of all claims and demands on behalf of Employee, shall be
entitled to receive all amounts owing to Employee at the time of death under
this Agreement. Such payments shall be in addition to any other death benefits
of the Employer and in full settlement and satisfaction of all severance benefit
payments provided for in this Agreement.
18. Entire Understanding. This Agreement constitutes the entire
--------------------
understanding between the parties relating to Employee's employment hereunder
and supersedes and cancels all prior written and oral understandings and
agreements with respect to such matters, except for the terms and provisions of
any employee benefit or other compensation plans (or any agreements or awards
thereunder), referred to in this Agreement, or as otherwise expressly
contemplated by this Agreement.
19. Binding Effect. This Agreement shall be binding upon and inure to the
--------------
benefit of the heirs and representatives of the Employee and the successors and
assigns of the Employer. The Employer shall require any successor (whether
direct or indirect, by purchase, merger, reorganization, consolidation,
acquisition of property or stock, liquidation, or otherwise) to all or a
substantial portion of its assets, by agreement in form and substance reasonably
satisfactory to the Employee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Employer would be
required to perform this Agreement if no such succession had taken place.
Regardless of whether such an agreement is executed, this Agreement shall be
binding upon any successor of the Employer in accordance with the operation of
law, and such successor shall be deemed the "Employer" for purposes of this
Agreement.
20. Tax Withholding. The Employer shall provide for the withholding of
---------------
any taxes required to be withheld by federal, state, or local law with respect
to any payment in cash, shares of stock and/or other property made by or on
behalf of the Employer to or for the benefit of the Employee under this
Agreement or otherwise. The Employer may, at its option: (a) withhold such
taxes from any cash payments owing from the Employer to the Employee, (b)
require the Employee to pay to the Employer in cash such amount as may be
required to satisfy such withholding obligations and/or (c) make other
satisfactory arrangements with the Employee to satisfy such withholding
obligations.
21. No Assignment. Except as otherwise expressly provided herein, this
-------------
Agreement is not assignable by any party and no payment to be made hereunder
shall be subject to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or other charge.
22. Execution in Counterparts. This Agreement may be executed by the
-------------------------
parties hereto in two (2) or more counterparts, each of which shall be deemed to
be an original, but all such
-18-
counterparts shall constitute one and the same instrument, and all signatures
need not appear on any one counterpart.
23. Jurisdiction and Governing Law. Except as provided in Paragraph 10,
------------------------------
jurisdiction over disputes with regard to this Agreement shall be exclusively in
the courts of the State of Illinois, and this Agreement shall be construed and
interpreted in accordance with and governed by the laws of the State of
Illinois, without regard to the choice of laws provisions of such laws.
24. Severability. If any provision of this Agreement shall be adjudged by
------------
any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement. Furthermore, if the scope of any restriction or requirement
contained in this Agreement is too broad to permit enforcement of such
restriction or requirement to its full extent, then such restriction or
requirement shall be enforced to the maximum extent permitted by law, and the
Employee consents and agrees that any court of competent jurisdiction may so
modify such scope in any proceeding brought to enforce such restriction or
requirement.
25. Waiver. The waiver of any party hereto of a breach of any provision
------
of this Agreement by any other party shall not operate or be construed as a
waiver of any subsequent breach.
26. Amendment. No change, alteration or modification hereof may be made
---------
except in a writing, signed by each of the parties hereto.
27. Construction. The language used in this Agreement will be deemed to
------------
be the language chosen by Employer and Employee to express their mutual intent
and no rule of strict construction shall be applied against any person.
Wherever from the context it appears appropriate, each term stated in either the
singular of plural shall include the singular and the plural, and the pronouns
stated in either the masculine, the feminine or the neuter gender shall include
the masculine, feminine or neuter. The headings of the Paragraphs of this
Agreement are for reference purposes only and do not define or limit, and shall
not be used to interpret or construe the contents of this Agreement.
[SIGNATURE PAGE FOLLOWS]
-19-
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
ATTEST: EMPLOYER
_________________________________ ______________________________________
By: Xxxxx X. Xxxxxxx
-------------------------------
Title: Chairman, President and Chief
-------------------------------
Executive Officer
-------------------------------
Address: EMPLOYEE
__________________________ ______________________________________
Name: Xxxxxx X. Xxxxxxxxxx
__________________________ -------------------------------
Title: Managing Director
__________________________ -------------------------------
-20-
EXHIBIT A TO EMPLOYMENT AGREEMENT
---------------------------------
RELEASE AND SEVERANCE AGREEMENT
-------------------------------
THIS RELEASE AND SEVERANCE AGREEMENT is made and entered into this ____ day
of _________, _____ by and between PrivateBancorp, Inc. and its subsidiary,
PrivateBank & Trust Company (collectively ("PBI") and Xxxxxx X. Xxxxxxxxxx
(hereinafter "Employee").
Employee's employment with PBI terminated on __________, ______; and
Employee has voluntarily agreed to the terms of this RELEASE AND SEVERANCE
AGREEMENT in exchange for severance benefits under the Employment Agreement
("Employment Agreement") to which Employee otherwise would not be entitled.
NOW THEREFORE, in consideration for severance benefits provided under the
Employment Agreement, Employee on behalf of himself and his spouse, heirs,
executors, administrators, children, and assigns does hereby fully release and
discharge PBI, its officers, directors, employees, agents, subsidiaries and
divisions, benefit plans and their administrators, fiduciaries and insurers,
successors, and assigns from any and all claims or demands for wages, back pay,
front pay, attorney's fees and other sums of money, insurance, benefits,
contracts, controversies, agreements, promises, damages, costs, actions or
causes of action and liabilities of any kind or character whatsoever, whether
known or unknown, from the beginning of time to the date of these presents,
relating to his employment or termination of employment from PBI, including but
not limited to any claims, actions or causes of action arising under the
statutory, common law or other rules, orders or regulations of the United States
or any State or political subdivision thereof including the Age Discrimination
in Employment Act and the Older Workers Benefit Protection Act.
Employee acknowledges that Employee's obligations pursuant to Paragraph 12
of the Employment Agreement relating to the use or disclosure of confidential
information, and the obligations pursuant to the Non-Compete and Support
Agreement between PBI and Employee, shall continue to apply to Employee.
This Release and Settlement Agreement supersedes any and all other
agreements between Employee and PBI except agreements relating to proprietary or
confidential information belonging to PBI and the Non-Compete and Support
Agreement between PBI and Employee, and any other agreements, promises or
representations relating to severance pay or other terms and conditions of
employment are null and void.
This release does not affect Employee's right to any benefits to which
Employee may be entitled under any employee benefit plan, program or arrangement
sponsored or provided by PBI, including but not limited to the Employment
Agreement and the plans, programs and arrangements referred to therein.
A-1
Employee and PBI acknowledge that it is their mutual intent that the Age
Discrimination in Employment Act waiver contained herein fully comply with the
Older Workers Benefit Protection Act. Accordingly, Employee acknowledges and
agrees that:
(a) The Severance benefits exceed the nature and scope of that to
which he would otherwise have been legally entitled to receive.
(b) Execution of this Agreement and the Age Discrimination in
Employment Act waiver herein is his knowing and voluntary act;
(c) He has been advised by PBI to consult with his personal attorney
regarding the terms of this Agreement, including the aforementioned waiver;
(d) He has had at least twenty-one (21) calendar days within which to
consider this Agreement;
(e) He has the right to revoke this Agreement in full within seven (7)
calendar days of execution and that none of the terms and provisions of
this Agreement shall become effective or be enforceable until such
revocation period has expired;
(f) He has read and fully understands the terms of this agreement; and
(g) Nothing contained in this Agreement purports to release any of
Employee's rights or claims under the Age Discrimination in Employment Act
that may arise after the date of execution.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
indicated above.
PRIVATEBANCORP, INC., for itself and its EMPLOYEE
Subsidiary, PRIVATEBANK & TRUST
COMPANY
By:________________________________________ _____________________________
Xxxxxx X. Xxxxxxxxxx
Its:_______________________________________
A-2
Exhibit B to Employment Agreement
---------------------------------
B-1
