EXHIBIT 10.21
FORM OF PRIVATEBANCORP, INC.
NONQUALIFIED INDUCEMENT TIME-VESTED STOCK OPTION
AGREEMENT
As an inducement to the undersigned
Optionee (“ Optionee ”) to accept an offer of
employment with the Company, this Nonqualified Inducement Stock
Option Agreement (this “ Agreement ”) is made as
of the date set forth on the signature page hereof by and between
PrivateBancorp, Inc., a Delaware corporation (the “
Company ”), and the Optionee. Except as otherwise
indicated or defined in Section 1 hereof, all words with
initial capitals shall have the same meaning as ascribed to them in
the PrivateBancorp, Inc. Strategic Long-Term Incentive Compensation
Plan (the “ Plan ”). Optionee acknowledges
receipt of a copy of the Plan.
WHEREAS, the Company desires to grant
to Optionee an option (“ Option ”) to buy shares
of the Company’s Common Stock, pursuant to the Plan and this
Agreement;
NOW, THEREFORE, the parties hereto
agree as follows:
1. Definitions . For the
purposes of this Agreement:
(a)
“ Change of Control ” shall be deemed to have
occurred upon the happening of any of the following events:
(i) Any
“person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (“
Exchange Act ”)), other than (A) a trustee or
other fiduciary holding securities under an employee benefit plan
of the Company or any of its subsidiaries, or (B) a
corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company, is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing
30% or more of the total voting power of the then outstanding
shares of capital stock of the Company 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 30% or more of the Voting Stock as the result
of an acquisition of such Voting Stock directly from the Company,
or (2) such person becomes a beneficial owner of 30% 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 the Company; 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 30% or more of the Voting Stock for purposes
of this Section 1(a)(i), provided such person continues to
beneficially own 30% or more of the Voting Stock after such
subsequent increase in beneficial ownership, or
(ii)
Individuals who, as of November 1, 2007, constitute the Board
(the “ Incumbent Board ”) cease for any reason
to constitute at least a majority of the Board, provided that any
individual becoming a director, whose election or nomination for
election by the Company’s stockholders was approved by a vote
of at least two-thirds
(2/3) of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding for this purpose, any individual whose initial assumption
of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company
(as such terms are used in Rule 14a-11 promulgated under the
Exchange Act); or
(iii)
Consummation of a reorganization, merger or consolidation or the
sale or other disposition of all or substantially all of the assets
of the Company (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 the Company or all or substantially
all of the Company’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 the Company, 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
(iv)
Approval by the stockholders of the Company of a plan of complete
liquidation or dissolution of the Company; or
(v)
(1) a sale or other transfer of the voting securities of the
Bank, whether by stock, merger, joint venture, consolidation or
otherwise, such that following said transaction the Company does
not directly, or indirectly through majority owned subsidiaries,
retain more than 50% of the total voting power of the Bank
represented by the voting securities of the Bank entitled to vote
generally in the election of the Bank’s directors; or
(2) a sale of all or substantially all of the assets of the
Bank other than to the Company or any subsidiary of the
Company.
(b) “
Disability ” means a termination of Optionee’s
employment due to his permanent disability (as determined by the
Committee) in accordance with either Section 23(e)(3) of the
Code, after receipt of medical advice, or as entitles Optionee to
payments of benefits under a long-term disability benefit plan of
the Company or a Subsidiary in which he participates.
(c) “
Resignation ” means Optionee’s voluntary
relinquishment of employment with the Company and all
Subsidiaries.
(d) “
Termination ” means a termination of the employment of
Optionee (i) by the Company and all of its Subsidiaries for
any reason, other than a Termination For Cause, or (ii) due to
Optionee’s death or Disability.
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(e) “
Termination Date ” means the date on which a
Resignation, Termination, Termination For Cause or Termination For
Good Reason occurs.
(f) “
Termination For Cause ” means a termination of the
employment of Optionee by the Company or any Subsidiary for any of
the following reasons:
(i) In
the case in which Optionee has entered into an employment agreement
(including, but not limited to, a term sheet agreement) with the
Company or a Subsidiary as in effect on the date hereof, or
Optionee otherwise is at any time participating in a severance plan
for executives of the Company or a Subsidiary, which provides for
an involuntary termination of Optionee’s employment for any
reason set forth as constituting “Cause” under such of
Optionee’s employment agreement or severance plan for
executives (as the case may be).
(ii) In
the case in which there is no employment agreement in effect
between Optionee and the Company or any Subsidiary or severance
plan for executives in which Optionee is at any applicable time
participating, any of the following reasons:
(1) The
commission by Optionee, as reasonably determined by the Committee,
of any theft, embezzlement or felony against the Company or any
Subsidiaries;
(2) The
commission of an unlawful or criminal act by Optionee resulting in
material injury to the business or property of the Company or
Subsidiaries or of an act generally considered to involve moral
turpitude, all as reasonably determined by the Committee;
(3) The
commission of an intentional act by Optionee in the performance of
Optionee’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
Subsidiaries, all as reasonably determined by the Committee;
or
(4) The
habitual drunkenness or drug addiction of Optionee, as reasonably
determined by the Committee.
(g) “
Termination For Good Reason ” means, in the case in
which Optionee has entered into an employment agreement (including,
but not limited to, a term sheet agreement) with the Company or a
Subsidiary as in effect on the date hereof, or Optionee otherwise
is at any time participating in a severance plan for executives of
the Company or a Subsidiary, which provides for a voluntary
termination of Optionee’s employment for “Good
Reason” (or comparable term) thereunder, a Resignation of
Optionee for any reason set forth as constituting “Good
Reason” (or such comparable term) under such of
Optionee’s employment agreement or severance plan for
executives (as the case may be).
2.
Grant and Designation of Option . Upon the execution and
delivery of this Agreement and the related Stock Option Certificate
of even date herewith, and subject to the Plan (the terms and
provisions of which are incorporated herein and expressly made a
part
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hereof,
including, but not limited to, adjustments required pursuant to
Section 11 thereof), the Company hereby grants to Optionee the
Option to purchase the aggregate number of shares of Common Stock
set forth on the Stock Option Certificate at the price per share
(“ Option Price ”) set forth on such
Certificate.
3. Term of Option; Vesting
and Exercisability . Subject to earlier termination,
acceleration or cancellation of the Option as provided herein, the
term of the Option shall be for the period set forth on the Stock
Option Certificate. Subject to the provisions of this Agreement,
the Option shall be “ vested ” and exercisable
at such times and as to such number of shares of Common Stock as
determined on the schedule set forth on the Stock Option
Certificate. The foregoing to the contrary notwithstanding, to the
extent not previously terminated or canceled, upon and after a
Change in Control, the Option shall be 100% vested and Optionee
shall be entitled to exercise the Option in whole or in part with
respe
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