PRIVATEBANCORP, INC. RESTRICTED STOCK AWARD AGREEMENT
EXHIBIT
10.1
This
Restricted Stock Award Agreement (“Agreement”) is entered into as of the date
set forth on the signature page hereof by and between PrivateBancorp, Inc.,
a
Delaware corporation (the “Company”), and the undersigned Grantee (“Grantee”).
Except as otherwise indicated or defined herein, all words with initial capitals
shall have the same meaning as ascribed to them in the PrivateBancorp, Inc.
Incentive Compensation Plan (the “Plan”). Grantee acknowledges receipt of a copy
of the Plan.
WHEREAS,
the Company desires to grant to Grantee a certain number of shares of Common
Stock, subject to the restrictions, and on the terms and conditions, set forth
in the Plan and this Agreement;
NOW,
THEREFORE, the parties hereto agree as follows:
Grant
of Award; Form of Award.
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Upon
the execution and delivery of this Agreement and the related Restricted
Stock Award Certificate of even date herewith attached hereto (the
“Restricted Stock Award Certificate”), and subject to the terms and
conditions of the Plan (the terms and provisions of which are incorporated
herein and expressly made a part hereof), the Company hereby grants
to
Grantee the aggregate number of shares of Common Stock of the Company
set
forth on the Restricted Stock Award Certificate, subject to the
restrictions and on the terms and conditions set forth herein and
in the
Plan (the “Award”) and subject to any adjustment as provided in the Plan.
As soon as practicable after Grantee has executed this Agreement
and the
documents described in Section 1(b), below, and delivered the same
to the
Company, the Company shall cause to be issued in Grantee’s name a stock
certificate representing the total number of shares of Common Stock
covered by this Award in accordance with Section 4,
below.
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Grantee
shall indicate acceptance of the terms of the Award by signing and
returning a copy hereof and shall sign and return the irrevocable
stock
power attached hereto to facilitate the transfer of some or all of
the
shares covered by the Award to the Company (or its assignee or nominee)
if
required under the terms of this Agreement or applicable laws or
regulations.
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To
the extent expressly provided in the Restricted Stock Award Certificate,
this Award may constitute an award of Restricted Share Units under
the
Plan, in which case the special provisions applicable to Restricted
Share
Units set forth in Section 18 below shall
apply.
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Restrictions.
The
shares of Common Stock covered by this Award shall be subject to the
restrictions set forth in Section 9(a) of the Plan, which include, but are
not
limited to, prohibitions on the sale, transfer, assignment, pledge or
encumbrance of said shares, prior to the vesting date set forth on the
Restricted Stock Award Certificate (the period ending on any such vesting
date(s) is hereinafter referred to as the “Restricted Period”). Sale, transfer
and other disposition of the shares following termination of the Restricted
Period may be limited by the absence of an established trading market for such
shares and/or the provisions of applicable securities laws. The restrictions
imposed hereunder shall not lapse upon expiration of the Restricted Period
if
such lapse would constitute a violation of any applicable federal or state
securities or other law or regulation and shall only lapse upon the termination
of such violation. As a condition to the receipt of the shares of Common Stock
covered by this Award, the Company may require Grantee to make any
representation and warranty to the Company as may be required by any applicable
law or regulation.
Rights
as a Shareholder.
Grantee
shall have the right to vote the shares of Common Stock covered by this Award
and to receive dividends thereon unless and until such shares are forfeited
pursuant to Section 5 hereof.
Custody
and Delivery of Shares.
Each
certificate representing the shares of Common Stock covered by this Award shall
be issued in the name of Grantee and shall bear appropriate legends regarding
this Agreement and such other restrictions on transferability, which are
substantially similar to the legend set forth as follows:
“The
shares represented by this certificate are deemed to be restricted stock and
until September
28, 2011
(which
is the fifth anniversary of the date the Award was made) are subject to the
terms and conditions, including certain restrictions on transfer, applicable
to
restricted stock pursuant to the PrivateBancorp, Inc. Incentive Compensation
Plan and the Restricted Stock Award Agreement covering these shares, copies
of
which are available from the Company.”
The
Company shall hold the certificate for shares of Common Stock covered by this
Award until the shares represented hereby have vested pursuant to the Restricted
Stock Award Certificate and Section 5 of this Agreement, and will thereupon,
subject to the satisfaction of any applicable federal, state, local or other
tax
withholding obligations and applicable securities laws, deliver the certificate
for the vested shares to Grantee, and destroy the stock power referred to in
Section 1(b) relating to the vested shares, or use it to authorize the
withholding of shares for payment of taxes, pursuant to Section 7, below.
Vesting;
Effect of Termination of Employment; Special Retirement.
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Except
to the extent provided in paragraphs (b), (c), (d) or (e) below, the
shares of Common Stock covered by this Award shall vest in accordance
with
the schedule set forth in the Restricted Stock Award Certificate.
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In
the event of termination of Grantee’s employment with the Company and its
Subsidiaries prior to the end of the Restricted Period for any reason
other than death or Special Retirement (as defined below), Grantee
will
forfeit any shares of Common Stock covered by this Award that are
not yet
vested, and shall have no further rights to said shares or any amounts
attributable thereto.
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Notwithstanding
anything herein or in the Plan to the contrary, in the event Grantee
shall
die during the period of Grantee’s employment, the Restricted Period shall
terminate and the shares of Common Stock covered by this Award shall
vest
in full on the date of Grantee’s death and shall be paid to Grantee’s
beneficiary or beneficiaries designated pursuant to Section 8, below.
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If
a Change in Control occurs during the period of Grantee’s employment with
the Company and its Subsidiaries, the Restricted Period and all
restrictions imposed on the shares of Common Stock covered by this
Award
shall fully and immediately lapse and be of no further force and
effect
and the shares of Common Stock covered by this Award shall vest in
full on
the date of such Change in Control.
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In
the event of termination of Grantee’s employment for any reason other than
death or by the Company for Cause (as defined in Section 17 below) on
or after age 62 and completion of at least 10 years of service with
the
Company or any Subsidiary (including for this purpose continuous
years of
service, if any, with a Subsidiary as of the date such Subsidiary
was
acquired by the Company) (such termination of employment a “Special
Retirement”), unvested shares at such Special Retirement shall vest in
accordance with the schedule set forth on the Restricted Stock Award
Certificate and paragraphs (c) and (d) above as if Grantee’s period of
employment continued after such Special Retirement. Notwithstanding
the
foregoing, as of the date Grantee shall cease to be Retired from
the
Industry (as defined in Section 17 below), the deemed continuation of
Grantee’s employment and any further vesting shall terminate as of such
date and Grantee shall forfeit any shares of Common Stock covered
by this
Award that are not yet vested and shall have no further rights to
said
shares or any amounts attributable
thereto.
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Adjustment
Upon Changes in Capitalization.
Any
additional share of Common Stock or other securities or property issued with
respect to the Common Stock covered by this Award, as a result of any
declaration of stock dividends, through recapitalization resulting in stock
splits, combinations or exchanges of shares or otherwise, shall be subject
to
the restrictions and terms and conditions set forth herein.
Payment
of Taxes.
Grantee
or Grantee’s legal representative shall be required to pay to the Company the
amount of any federal, state, local or other taxes which the Company determines
it is required to withhold and pay over to governmental tax authorities with
respect to shares of Common Stock covered by this Award on the date on which
the
Company’s tax liability arises with respect to such shares (the “Tax Date”).
Grantee may satisfy such obligation by any of the following means: (a) cash
payment to the Company, (b) delivery to the Company of Previously-Acquired
Shares of Common Stock having an aggregate Fair Market Value determined as
of
the Tax Date that equals the amount required, (c) authorizing the Company
to withhold whole shares of Common Stock which would otherwise be delivered
having an aggregate Fair Market Value determined as of the Tax Date that equals
the amount required, or (d) any combination of (a), (b), and (c). The value
of any shares withheld may not be in excess of the amount of taxes required
to
be withheld by the Company determined by applying the applicable minimum
statutory withholding tax rates.
Beneficiary.
Grantee
may name, from time to time, any beneficiary or beneficiaries to whom the shares
of Common Stock covered in this Award shall be paid in case of his death before
receipt of such shares. Each designation shall be on a form prescribed for
such
purpose by the Committee and shall be effective only as set forth therein.
Compliance
with Certain Laws and Regulations.
If the
Committee shall determine, in its discretion, that the listing, registration
or
qualification of the shares of Common Stock covered in this Award upon any
securities exchange or under any law or regulation, or that the consent or
approval of any governmental regulatory body is necessary or desirable in
connection with the granting of shares of Common Stock hereunder, Grantee shall
supply the Committee or Company, as the case may be, with such certificates,
representations and information as the Committee or Company, as the case may
be,
may request and shall otherwise cooperate with the Company in obtaining any
such
listing, registration, qualification, consent or approval.
Notices.
Any
notice provided for in this Agreement must be in writing and must be either
personally delivered, delivered by overnight courier, or mailed by first class
mail, to Grantee at the address set forth on the records of the Company, to
the
Company at its offices at 00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, or such other address or to the attention of such other person
as the recipient party shall have specified by prior written notice to the
sending party. Any notice under this Agreement will be deemed to have been
given
when received.
Severability.
Whenever possible, each provision of this Agreement will be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
Complete
Agreement.
This
Agreement and those documents expressly referred to herein embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any
way.
Counterparts.
This
Agreement may be executed in separate counterparts, each of which is deemed
to
be an original and all of which taken together constitute one and the same
agreement.
Successors
and Assigns.
This
Agreement is intended to bind and inure to the benefit of and be enforceable
by
Grantee, the Company and their respective permitted successors and assigns
(including personal representatives, heirs and legatees), and is intended to
bind all successors and assigns of the respective parties, except that Grantee
may not assign any of Grantee’s rights or obligations under this Agreement
except to the extent and in the manner expressly permitted hereby.
Remedies.
Each of
the parties to this Agreement will be entitled to enforce its rights under
this
Agreement specifically, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not
be an
adequate remedy for any breach of the provisions of this Agreement and that
any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce or prevent any violations of the provisions of this
Agreement.
Waiver
or Modification.
Any
waiver or modification of any of the provisions of this Agreement shall not
be
valid unless made in writing and signed by the parties hereto. Waiver by either
party of any breach of this Agreement shall not operate as a waiver of any
subsequent breach.
Miscellaneous.
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The
Company shall pay all original issue or transfer taxes with respect
to the
issuance or delivery of shares of Common Stock pursuant hereto and
all
other fees and expenses incurred by the Company in connection therewith,
and will use its best efforts to comply with all laws and regulations
which, in the opinion of counsel for the Company, shall be applicable
thereto.
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This
Agreement shall not be construed as an employment contract and does
not
give Grantee any right to continued employment by the Company or
any
affiliate of the Company or to the receipt of any future Restricted
Stock
or other awards under the Plan.
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This
Agreement and the Award is subject to (i) the terms and conditions of
the Plan and (ii) all good faith determinations of the Committee and
of the Company pursuant to the
Plan.
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“Termination
For Cause” means a termination of the employment of Grantee by the Company
or any Subsidiary for any of the following reasons:
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(i) In
the
case where there is an employment, change in control or similar agreement in
effect between Grantee and the Company or any Subsidiary that defines “cause”
(or similar words), the termination of an employment arrangement that is or
would be deemed to be for “cause” (or similar words) as defined in such
agreement.
(ii) In
the
case where there is no employment, change in control or similar agreement in
effect between Grantee and the Company or any Subsidiary, or where there is
such
an agreement but the agreement does not define “cause” (or similar words), the
termination of Grantee’s employment due to:
The
commission by Grantee, as reasonably determined by the Committee, of any theft,
embezzlement or felony against the Company or any Subsidiary;
The
commission of an unlawful or criminal act by Grantee resulting in material
injury to the business or property of the Company or any Subsidiary or of an
act
generally considered to involve moral turpitude, all as reasonably determined
by
the Committee;
The
commission of an intentional act by Grantee in the performance of Grantee’s
duties as an employee of the Company or any Subsidiary amounting to gross
negligence or misconduct or resulting in material injury to the business or
property of the Company or any Subsidiary, all as reasonably determined by
the
Committee; or
The
habitual drunkenness or drug addiction of Grantee, as reasonably determined
by
the Committee.
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“Retired
from the Industry” with respect to a Grantee means the Grantee has retired
from the Company and all Subsidiaries under circumstances that constitute
Special Retirement and Grantee (A) does not thereafter perform services
as
an employee, officer, director or consultant for, or in any other
capacity
assist, any bank, thrift, bank or thrift holding company, asset management
company, trust company, investment advisor, or any other financial
services company (other than the Company or a Subsidiary), whether
existing or in formation, that provides or plans to provide banking
or
other financial services, including but not limited to, those relating
to
loans, deposits, treasury management, custodial or trust services,
or
investment or wealth management services, and (B) certifies to the
Company, at such times and in such manner as the Committee may require,
that since Grantee’s retirement, Grantee has not performed any such
services.
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Special
Provisions Applicable to Restricted Share Units.
In the
event the Restricted Stock Award Certificate expressly provides that the Award
is an award of Restricted Share Units, then the provisions of the Plan
applicable to Restricted Share Units shall apply to this Award and foregoing
provisions of this Agreement shall be interpreted and applied within the context
of a Restricted Share Unit Award, which interpretation and application shall,
among other things, reflect the following:
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The
Award hereunder shall be an award of Restricted Share Units (“Units”).
When payable, each Unit will be converted to and paid in shares of
Common
Stock.
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Provided
Grantee has become vested in accordance with Section 5 above, the
Units
will become payable on the earlier of: (i) date set forth on the
Restricted Stock Award Certificate; (ii) the termination of the Restricted
Period due to the Grantee’s death; or (ii) the termination of the
Restricted Period upon a Change in Control, provided such Change
in
Control is a change in ownership or change in effective control that
qualifies as a payment event under Code Section 409A and any applicable
proposed or final regulations and other published guidance relating
thereto (collectively “Section
409A”).
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Grantee
will not have any voting rights with respect to the Units, but will
be
entitled to receive dividends paid with respect to a corresponding
number
of shares of Common Stock as contemplated by Section 3
above.
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It
is intended that the Units and exercise of authority or discretion
hereunder shall comply with Code Section 409A so as not to subject
Grantee
to the payment of any interest or additional tax imposed under Section
409A. In furtherance of this intent, to the extent that any United
States
Department of the Treasury regulations, guidance, interpretations
or
changes to Section 409A would result in Grantee becoming subject
to
interest and additional tax under Section 409A of the Code, the Company
and Grantee agree to amend this Award Agreement to bring the Units
into
compliance with Section 409A.
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[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Agreement effective on the
___
day of __________, 20__.
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By:
Name:
Title:
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GRANTEE
Signature
Print
Name
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Grant
DateNumber
of
Shares
______________________________
RESTRICTED
STOCK AWARD CERTIFICATE
THIS
CERTIFIES THAT ___________________________________ has been awarded [Restricted
Share Units payable in]1
______
shares of Common Stock, without par value, of PRIVATEBANCORP, INC., subject
to
the terms and conditions of this Restricted Stock Award Certificate, the related
Restricted Stock Award Agreement of even date herewith and the PrivateBancorp,
Inc. Incentive Compensation Plan.
Except
as
may be otherwise provided in the Restricted Stock Award Agreement or the
Incentive Compensation Plan, the restrictions applicable to shares awarded
hereunder shall lapse as to all or a portion of the number of shares set forth
above, and such shares shall vest, as follows:
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On
and After the Following
Dates
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Maximum
Percentage
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Fifth
anniversary of ________________
[date of grant]
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100%
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IN
WITNESS WHEREOF, PRIVATEBANCORP, INC. has caused this Restricted Stock Award
Certificate to be signed by its duly authorized officer this ___ day of
__________, 20__.
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By:
Its:
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1 Include
bracketed language to award Restricted Share Units instead of shares of
Restricted Stock.
ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR
VALUE
RECEIVED, I, ______________________, hereby assign and transfer unto
_______________________ _______________ (_______) shares of the Common Stock
of
PrivateBancorp, Inc. (the “Company”) in my name on the books of the Company
represented by Certificate No. __.
I
do
hereby irrevocably constitute and appoint _____________________________ as
my
attorney-in-fact to transfer the said stock on the books of the within named
Company with full power of substitution in the premises. By execution hereof,
I
represent that such shares now stand in my name on the books of the
Company.
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Printed
Name:
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Dated
as
of _______ __, 20__.
IN
THE
PRESENCE OF
BENEFICIARY
DESIGNATION FORM FOR RESTRICTED STOCK
Restricted
Stock Award Agreement(s) (the “Restricted Stock Award(s)”) dated (fill in
Restricted Stock Award Dates):
You
may
designate a primary beneficiary and a secondary beneficiary to whom rights
under
your Restricted Stock Award Agreements will pass in the event of your death.
You
may name more than one person as a primary or secondary beneficiary. For
example, you may wish to name your spouse as primary beneficiary and your
children as secondary beneficiaries. Your secondary beneficiary(ies) will have
no rights with respect to your Restricted Stock Award(s) if any of your primary
beneficiaries survive you. All primary beneficiaries will have equal rights
with
respect to your Restricted Stock Award(s) unless you indicate otherwise. The
same rule applies for secondary beneficiaries.
Designate
Your Beneficiary(ies):
Primary
Beneficiary(ies) (give name, address and relationship to you):
Secondary
Beneficiary(ies) (give name, address and relationship to you):
I
certify
that my designation of beneficiary set forth above is my free act and deed
and
acknowledge that when effective it will revoke any prior designation I may
have
made with regard to the Restricted Stock Award(s) set forth above.
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Printed
Name:
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Dated
as
of _______ __, 20__.
This
Beneficiary Designation Form for Restricted Stock shall be effective on the
day
it is received by the Chief Financial Officer (or his designee) of the Company
at 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000. This Form shall be (i)
delivered to the Chief Financial Officer (or his designee) by personal delivery,
facsimile, United States mail or by express courier service, and (ii) deemed
to
be received upon personal delivery, upon confirmation of receipt of facsimile
transmission or upon receipt by the Chief Financial Officer (or his designee)
if
by United States mail or express courier service; provided, however, that if
this Form is not received during regular business hours, it shall be deemed
to
be received on the next succeeding business day of the Company.
RECEIVED
AND ACKNOWLEDGED:
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PRIVATEBANCORP,
INC.
By:
Name:
Title:
Chief Financial Officer or a Duly Authorized
Designee
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