Exhibit 10.33
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS AGREEMENT, made and entered
into as of April 6, 2005 (the “ Effective Date
”), by and among PrivateBancorp, Inc. (hereinafter referred
to as “ PrivateBancorp ” or “
Employer ”), and Wallace L. Head (hereinafter
called the “ Executive ”).
WITNESSETH THAT
:
WHEREAS, the Employer desires to
continue to employ the Executive as Chairman and CEO of The
PrivateBank Wealth Management, and the Executive desires to
continue in such employment;
NOW, THEREFORE, in consideration of
the mutual promises herein contained and subject to the conditions
precedent set forth herein, the parties agree as
follows:
1. Employment and Term
.
(a) Employment .
PrivateBancorp shall employ, or shall cause a newly-formed wealth
management and trust subsidiary to employ, Executive as the
Chairman and CEO of The PrivateBank Wealth Management and the
Executive shall so serve, for the term set forth in
Paragraph 1(b). To the extent the Executive is employed by
such subsidiary, references herein to “Employer” shall
include the subsidiary.
(b) Term . The
Executive’s employment under this Agreement shall commence on
the Effective Date and extend through September 30, 2005,
subject to the extension of such term as hereinafter provided and
subject to earlier termination as provided in Paragraph 7. The
term of this Agreement shall automatically be extended for an
additional year as of October 1, 2005 and each anniversary
date thereof unless, no later than ninety (90) days prior to
any such renewal date, either the board of directors of
PrivateBancorp (the “ Board ”), or a duly
authorized committee thereof, on behalf of the Employer, or the
Executive gives written notice to the other, in accordance with
Paragraph 15, that the term of this Agreement shall not be so
extended. Notwithstanding anything in this Agreement to the
contrary, if at any time during the Executive’s period of
employment under this Agreement there is a Change in Control (as
defined in Paragraph 7), the term of this Agreement shall
automatically extend to a date which is two (2) years from the
date of the Change in Control (and shall be further extended
pursuant to the foregoing provisions of this Paragraph 1(b),
unless written notice to the contrary is given in accordance with
this Paragraph 1(b)).
2. Duties and
Responsibilities .
(a) The duties and responsibilities
of the Executive shall be of an executive nature as shall be
required by the Employer in the conduct of its business. The
Executive’s powers and authority shall be as prescribed by
the by-laws of the Employer, if applicable, and shall include all
those presently delegated to the Executive, together with the
performance of such other duties and responsibilities as the Chief
Executive Officer of the Employer may from time to time assign to
the Executive not inconsistent with the Executive’s
position(s) with the
Employer. The Executive recognizes,
that during the period of the Executive’s employment
hereunder, the Executive owes an undivided duty of loyalty to the
Employer, and agrees to devote the Executive’s entire
business time and attention to the performance of said duties and
responsibilities and to use the Executive’s best efforts to
promote and develop the business of the Employer. Recognizing and
acknowledging that it is essential for the protection and
enhancement of the name and business of the Employer and the
goodwill pertaining thereto, the Executive shall perform his duties
under this Agreement professionally, in accordance with the
applicable laws, rules and regulations and such standards, policies
and procedures established by the Employer and the industry from
time to time, including the Employer’s Corporate Code of
Ethics. The Executive 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 the Executive’s duties under this
Agreement. During the period of employment, the Executive agrees to
serve as a director on the Board of Directors of the Employer
and/or the board of directors or managers, as applicable, of any of
its subsidiaries and affiliates, as well as to serve as a member of
any committee of any said boards, to which the Executive may be
elected or appointed.
(b) Notwithstanding that this
Agreement provides for the employment of the Executive in the
Executive’s capacity as the Chairman and CEO of The
PrivateBank Wealth Management of the Employer, nothing herein
contained shall assure the Executive of, nor in any manner shall be
construed to constitute an agreement by the Employer to the,
continued employment of the Executive after the expiration or
termination of this Agreement in such capacity or in any other
capacity.
3. Base Salary . For services
performed by the Executive for the Employer pursuant to this
Agreement during the period of employment as provided in
Paragraph 1(b) hereof, the Employer shall pay the Executive a
base salary at the rate of two hundred thousand dollars ($200,000)
per year, payable in substantially equal installments in accordance
with the Employer’s regular payroll practices. The
Executive’s base salary (with any increases under this
Paragraph 3) shall not be subject to reduction without the
Executive’s written consent. Any compensation which may be
paid to the Executive under any additional compensation or
incentive plan of the Employer or which may be otherwise authorized
from time to time by the Board (or an appropriate committee
thereof) shall be in addition to the base salary to which the
Executive shall be entitled under this Agreement. Executive’s
base salary shall be subject to review from time to time, and the
Employer may (but is not required to) increase the base salary as
the Board, in its discretion, may determine.
4. Annual Bonuses . For each
fiscal year during the term of employment, the Executive shall be
eligible to receive a bonus in the amount, if any, as may be
determined from time to time by the Board in its
discretion.
5. Equity Incentive
Compensation . During the term of employment hereunder, the
Executive shall be eligible to participate in the PrivateBancorp,
Inc. Incentive Compensation Plan, and in any other equity-based
incentive compensation plan or program adopted by the Employer,
including (but not by way of limitation) any plan providing for the
granting of
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(a) options to purchase stock,
(b) restricted stock or (c) similar equity-based units or
interests to officers of the Employer.
6. Other Benefits . In
addition to the compensation described in Paragraphs 3, 4 and
5, above, the Executive shall also be entitled to the
following:
(a) Participation in Benefit
Plans . The Executive shall be entitled to participate in such
life insurance, disability, medical, dental, pension, profit
sharing and retirement plans and other programs as may be made
generally available from time to time by the Employer for the
benefit of executives of the Executive’s level or its
employees generally.
(b) Vacation . The Executive
shall be entitled to such number of days 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.
(c) Executive Perquisites .
The Employer shall furnish Executive with such perquisites as are
provided from time to time by the Employer to its officers
generally and are suitable to the Executive’s position,
adequate for the performance of the Executive’s duties
hereunder, and reasonable in the circumstances. Without limitation
of the foregoing, Employer shall pay the cost of Executive’s
membership in one downtown club and shall reimburse Executive for
the cost of annual country club dues at one country club of which
Executive is a member, in each case subject to Employer approval of
the club.
(d) Expense Reimbursement .
The Employer shall reimburse the Executive for all reasonable
expenses incurred by the Executive in performing services
hereunder, which are incurred and accounted for in accordance with
the Employer’s policies and procedures applicable
thereto.
7. Termination . Unless
earlier terminated in accordance with the following provisions of
this Paragraph 7, the Employer shall continue to employ the
Executive and the Executive shall remain employed by the Employer
during the entire term of this Agreement as set forth in
Paragraph 1(b). Paragraph 8 hereof sets forth certain
obligations of the Employer in the event that the Executive’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. In the event of termination of the
Executive’s employment with the Employer for any reason, or
if the Executive is required by the Board, the Executive agrees to
resign, and shall automatically be deemed to have resigned, from
any offices (including any directorship) the Executive holds with
the Employer and/or any of its affiliates effective as of the
termination date of the Executive’s employment hereunder, or,
if applicable, effective as of a date selected by the Board;
provided, however, that the foregoing resignation shall not
prejudice or otherwise affect the Executive’s rights and
obligations, if any, under this Agreement.
(a) Death or Disability .
Except to the extent otherwise provided in Paragraphs 8, 12
and 13 with respect to death benefits and certain post-Date of
Termination obligations of the parties, this Agreement shall
terminate immediately as of the Date of Termination in the event of
the Executive’s death or in the event that the Executive
becomes Disabled (as hereinafter defined). The Board shall promptly
give the Executive written notice of
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any such determination of the
Executive’s Disability and of any decision of the Board to
terminate the Executive’s employment by reason thereof. In
the event of Disability, until the Date of Termination, the base
salary payable to the Executive under Paragraph 3 hereof shall
be reduced dollar-for-dollar by the amount of disability benefits,
if any, paid to the Executive in accordance with any disability
policy or program of the Employer.
(b) Discharge for Cause . In
accordance with the procedures hereinafter set forth, the Board may
discharge the Executive from the Executive’s employment
hereunder for Cause (as hereinafter defined). Except to the extent
otherwise provided in Paragraphs 8, 12 and 13 with respect to
certain post-Date of Termination obligations of the parties, this
Agreement shall terminate immediately as of the Date of Termination
in the event the Executive is discharged for Cause. Any discharge
of the Executive for Cause shall be communicated by a Notice of
Termination to the Executive given in accordance with
Paragraph 15 of this Agreement.
(c) Termination for Other
Reasons . The Employer may discharge the Executive without
Cause by giving written notice to the Executive in accordance with
Paragraph 15. The Executive may resign from the
Executive’s employment with or without Good Reason, without
liability to the Employer, by giving written notice to the Employer
in accordance with Paragraph 15 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” or during the ninety (90) day period described
in the final sentence of Paragraph 7(d)(vi); provided,
further, that the Employer retains the right after proper notice of
the Executive’s voluntary termination to require the
Executive to cease the Executive’s employment immediately.
Except to the extent otherwise provided in Paragraphs 8, 12
and 13 with respect to certain post-Date of Termination obligations
of the parties, this Agreement shall terminate immediately as of
the Date of Termination in the event the Executive is discharged
without Cause or resigns for any reason or no reason.
(d) Definitions . For
purposes of this Agreement, the following capitalized terms shall
have the meanings set forth below:
(i) “ Accrued
Obligations ” shall mean, as of the Date of Termination,
the sum of (A) the Executive’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 Executive 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 Executive 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 Board in accordance with the
applicable plan, program or policy.
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(ii) “ Cause ”
shall mean (A) the Executive’s willful and continued
(for a period of not less than ten (10) business days after
written notice thereof) failure to perform substantially the duties
of his employment (other than as a result of physical or mental
incapacity, or while on vacation); or (B) the
Executive’s willful engaging in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the
Employer; or (C) the Executive’s conviction of a felony
involving moral turpitude, but specifically excluding any
conviction based entirely on vicarious liability (with
“vicarious liability” meaning liability based on acts
of the Employer for which the Executive is charged solely as a
result of his offices with the Employer and in which he was not
directly involved and did not have prior knowledge of such actions
or intended actions); provided, however, that no act or failure to
act, on the part of the Executive, shall be considered
“willful” unless it is done, or omitted to be done, by
the Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of
the Employer; and provided further that no act or omission by the
Executive shall constitute Cause hereunder unless the Employer has
given detailed written notice thereof to the Executive, and the
Executive has failed to remedy such act or omission.
(iii) “ Change in
Control ” shall mean the occurrence of any one 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 PrivateBancorp or any of its subsidiaries, or
(ii) a corporation owned directly or indirectly by the
stockholders of PrivateBancorp in substantially the same
proportions as their ownership of stock of PrivateBancorp, is or
becomes the “beneficial owner” (as defined in
Rule 13d-3 under said Act), directly or indirectly, of
securities of PrivateBancorp representing 20% or more of the total
voting power of the then outstanding shares of capital stock of
PrivateBancorp 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 20% or
more of the Voting Stock as the result of an acquisition of such
Voting Stock directly from PrivateBancorp, or (2) such person
becomes a beneficial owner of 20% 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 PrivateBancorp;
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 20% or more of the Voting Stock for purposes of
this Paragraph (A), provided such person continues to
beneficially own 20% 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
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Board, and any new director, whose
election by the Board or nomination for election by
PrivateBancorp’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
PrivateBancorp (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 PrivateBancorp or all or
substantially all of PrivateBancorp’s assets either directly
or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to the Business
Combination of the Voting Stock of PrivateBancorp, 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) Approval by the stockholders of
PrivateBancorp of a plan of complete liquidation or dissolution of
PrivateBancorp.
The Board 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
discharge of the Executive for or without Cause, the date the
Executive 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 Executive, the date
specified in the written notice to the Employer, which date shall
be no less than thirty (30) days from the date of such written
notice (or such earlier date as the Employer may elect in its sole
discretion), (C) in the event of the Executive’s death,
the date of the Executive’s death, and (D) in the event
of termination of the Executive’s employment by reason of
Disability pursuant to Paragraph 7(a), the date the Executive
receives written notice of such termination.
(v) “ Disabled ”
and “ Disability ” shall mean that the Executive
will be deemed to be disabled upon the earlier of (i) the end
of a six (6) consecutive month period, or 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 Executive has been unable to perform
substantially all of the Executive’s usual and customary
duties under this Agreement or (ii) the date that a reputable
physician selected
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by the Board, and as to whom the
Executive has no reasonable objection, determines in writing that
the Executive will, by reason of physical or mental injury or
disease, be unable to perform substantially all of the
Executive’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 Executive is Disabled, upon
reasonable request therefore by the Board, the Executive shall
submit to a reasonable medical examination for the purpose of
determining the existence, nature and extent of any such
disability.
(vi) “ Good Reason
” shall mean the occurrence, other than in connection with a
discharge, of any of the following without the Executive’s
consent: (A) the Executive is not re-elected or is removed
from the positions with the Employer set forth in
Paragraph 1(a), other than as a result of the
Executive’s election or appointment to positions of equal or
superior scope and responsibility; or (B) the Executive shall
fail to be vested by the Employer with the power and authority of
any of said positions, 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
Executive in accordance with Paragraph 15; or (C) any
failure by the Employer to materially 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 Executive in accordance with
Paragraph 15; (D) the Employer giving notice to the
Executive pursuant to Paragraph 1(b) that the term of this
Agreement shall not be extended upon the expiration of the
then-current term; or (E) the Employer requiring the Executive
to be based at an office or location which is more than
50 miles from the Executive’s office as of the Effective
Date or any renewal date of the extended term of this Agreement. In
addition, any termination by the Executive during the ninety
(90) day period beginning on the first anniversary of the date
of a Change in Control shall be deemed to be for “Good
Reason.”
(vii) “ Notice of
Termination ” shall mean a written notice which
(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 Executive’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 or the date otherwise
specified under this Agreement, specifies the termination
date.
8. Obligations of the Employer
Upon Termination . The following provisions describe the
obligations of the Employer to the Executive 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 Executive 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 Good Reason . In the event
this Agreement terminates pursuant to Paragraph 7(a) by reason
of the death or Disability of the Executive, pursuant to
Paragraph 7(b) by reason of the discharge of the
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Executive by the Employer for Cause,
or pursuant to Paragraph 7(c) by reason of the resignation of
the Executive other than for Good Reason, the Employer shall pay to
the Executive, or the Executive’s heirs or estate in the
event of the Executive’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 (including sign-on bonus, if
any), 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 Executive. In addition, in the event this
Agreement terminates pursuant to Paragraph 7(a) by reason of
death of the Executive, the Employer shall pay to the
Executive’s heirs or estate death benefits in a lump sum
amount equal to six (6) months of the Executive’s
then-current annual base salary.
(b) Discharge without Cause or
Resignation with Good Reason . In the event that this Agreement
terminates pursuant to Paragraph 7(c) by reason of the
discharge of the Executive by the Employer other than for Cause,
death or Disability or by reason of the resignation of the
Executive for Good Reason:
(i) The Employer shall pay all
Accrued Obligations to the Executive 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 Executive;
(ii) Within thirty (30) days
after the Date of Termination, the Employer shall pay to the
Executive a bonus for the year during which termination occurs,
calculated as a prorata portion of the Executive’s prior
year’s bonus amount (if any) based on the number of days
elapsed during the year through the Date of Termination;
(iii) Severance payments equal to
one hundred percent (100%) of the sum of (A) the
Executive’s then-current annual base salary, plus
(B) the average of the sum of
