EXHIBIT 10.19
FORM OF PRIVATEBANCORP, INC.
INDUCEMENT PERFORMANCE SHARE AWARD AGREEMENT
As an inducement to the undersigned
Grantee (“ Grantee ”) to accept an offer of
employment with the Company, this Inducement Performance Share
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 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. Strategic Long-Term 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:
1. Grant of Award; Form of
Award .
(a) Upon
the execution and delivery of this Agreement and the related
Performance Share Award Certificate of even date herewith attached
hereto (the “ Performance Share 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 Performance Share Award Certificate issued in connection
with this award (“ Performance Shares ”),
subject to the restrictions and on the terms and conditions set
forth herein, the Performance Share Award Certificate and in the
Plan (the “ Award ”) and subject to any
adjustment as provided in the Performance Share Award Certificate
and 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. In the
discretion of the Committee, the Performance Shares awarded to
Grantee hereunder may be non-certificated and, accordingly,
issuances and transfers shall be reflected on the stock ledger
books and records of the Company and no certificate of shares of
Common Stock in respect of Grantee’s shares will be issued to
Grantee, to the extent not prohibited by applicable law, the
Company’s certificate of incorporation and by-laws, or the
rules of any stock exchange.
(b) 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.
2. Restrictions . The
Performance Shares granted under this Award shall be subject to the
restrictions set forth in Section 9 of the Plan and a
prohibition on the sale, transfer, assignment, pledge or
encumbrance of the Performance Shares, prior to the date on which
such Performance Shares vest upon satisfaction of the Performance
Objectives and continuous
employment requirements set forth in Section 5 hereof and on
the Performance Share Award Certificate. For the purposes of this
Award, the period from January 1, 2008 through
December 31, 2012 is hereinafter referred to as the “
Performance Period .” For all purposes under this
Award, Performance Shares shall be “ vested ” as
to such Performance Shares for which the Grantee has been
continuously employed with the Company or a Subsidiary and the
Performance Objectives (or other conditions) have been satisfied in
accordance with Section 5 hereof, and upon such satisfaction
the restrictions on such Performance Shares shall lapse and the
Performance Shares shall become unrestricted. Sale, transfer and
other disposition of the Performance Shares following vesting as to
any portion of the Performance Shares awarded hereunder may be
limited by the absence of an established trading market for such
shares and/or the provisions of applicable securities laws. The
Performance Shares shall not be vested upon expiration of the
Performance Period as to any shares awarded hereunder if such
vesting would constitute a violation of any applicable federal or
state securities or other law or regulation and shall only vest as
may be permitted under such law or regulation upon the termination
of such violation.
3. Voting Rights;
Dividends . Grantee shall have the right to vote the shares of
Common Stock covered by this Award. Grantee shall have the right to
receive dividends on the shares of Common Stock covered by this
Award unless and until such shares are forfeited pursuant to
Section 5 hereof; provided, any such dividends payable
hereunder on unvested Performance Shares shall be deferred and paid
to the Grantee (without interest), only to the extent such
Performance Shares subsequently vest, as soon as practicable after
the date of vesting but not later than the first March 15
following the date of vesting.
4. Custody and Delivery of
Shares . Each certificate representing the shares of Common
Stock covered by this Award that may be issued in the name of
Grantee 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 performance shares subject to transfer
restrictions based on continuous service until December 31,
2012 (which is the fiscal year ending date that immediately follows
the fifth anniversary of the date the Award was made) and the
attainment of certain Performance Objectives, or other conditions,
as applicable to awards of performance shares pursuant to the
PrivateBancorp, Inc. Strategic Long-Term Incentive Compensation
Plan and the Performance Share Award Agreement covering these
shares, copies of which are available from PrivateBancorp,
Inc.”
The
Company shall hold any certificate for shares of Common Stock
covered by this Award until the Performance Shares represented
hereby vest pursuant to the Performance Share Award Certificate and
Section 5 of this Agreement, and if so certificated shall
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 unrestricted
shares to Grantee, and destroy the stock power referred to in
Section 1(b) relating to the unrestricted shares, or use it to
authorize the withholding of shares for payment of taxes, pursuant
to Section 7, below.
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5. Vesting; Effect of
Termination of Employment .
(a) Except
to the extent provided in Section 5(b), (c) or
(d) below, the Performance Shares covered by this Award shall
vest to the extent of the attainment of Performance Objectives (or
other conditions) and Grantee’s continuous employment with
the Company or a Subsidiary, as set forth in the Performance Share
Award Certificate.
(b) In
the event of the termination of Grantee’s employment with the
Company and its Subsidiaries for any reason prior to the last day
of the Performance Period and prior to the occurrence of a Change
of Control, other than due to Grantee’s death, Disability,
involuntary termination of employment by the Company and all
Subsidiaries without Cause or voluntary termination of
Grantee’s employment with the Company and all Subsidiaries
for Good Reason (as such terms are defined below), Grantee shall
forfeit all of the Performance Shares covered by this Award which
had not become vested on or prior to the date of such termination
in accordance with the terms of the Performance Share Certificate,
and Grantee shall have no further rights to said shares or any
amounts attributable thereto.
(c) In
the event of a Termination of Grantee by the Company without Cause,
Grantee’s Resignation for Good Reason or after the Grantee
has attained age 62 and has been credited with 10 or more
years of service with the Company and its Subsidiaries (including
prior service with LaSalle Bank, N.A. and its affiliates) or
Grantee’s death or Disability, prior to the occurrence of a
Change of Control, on the last day of the fiscal year in which such
Termination, Resignation, death or Disability occurs:
(i)
Grantee shall become vested in such number of unvested Performance
Shares as is required for Grantee to be vested (including all
Performance Shares that had previously vested) in the greater
of:
(1)
The number of Performance Shares in which Grantee would have been
vested had Grantee’s employment continued until the last day
of the fiscal year in which such employment termination occurs;
and
(2)
The number of Performance Shares that equals the product of
(x) the total number of Performance Shares covered by this
Award multiplied by (y) 5% multiplied by (z) the number
of whole or partial fiscal years of Grantee’s continuous
employment with the Company or a Subsidiary during the Performance
Period; and
(ii) To
the extent that any portion of the Performance Shares became
Time-Vesting Restricted Shares pursuant to Section 3 of the
Performance Share Award Certificate prior to the date of
termination, (x) such Time-Vesting Restricted Shares shall not
be considered Performance Shares for purposes of
Section (5)(c)(i), and (y) 20% of the total number of
Time-Vesting Restricted Shares shall become immediately vested on
the date of employment termination (in addition to any Time-Vesting
Restricted Shares that previously became vested).
(iii)
In the case of Grantee’s death, any such vested Performance
Shares or Time-Vesting Restricted Shares under this
Section 5(c) shall be paid to Grantee’s beneficiary or
beneficiaries designated pursuant to Section 8, below.
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(d) If
a Change of Control occurs during the Performance Period while
Grantee has been continuously employed with the Company or its
Subsidiaries, all of the Performance Shares covered by this Award
shall be immediately vested, to the extent not previously
vested.
(e) Definitions.
For purposes of this Agreement, the following terms shall have the
meaning defined below:
(i)
“ Cause ,” in connection with an involuntary
termination of Grantee’s employment, means:
(1)
In the case in which Grantee 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 Grantee 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 Grantee’s employment for
any reason set forth as constituting “Cause” under such
of Grantee’s employment agreement or severance plan for
executives (as the case may be).
(2)
In the case in which there is no employment agreement in effect
between Grantee and the Company or any Subsidiary or severance plan
for executives of the Company or a Subsidiary in which Grantee is
at any applicable time participating, any of the following
reasons:
a.
The commission by Grantee, as reasonably determined by the
Committee, of any theft, embezzlement or felony against the Company
or any Subsidiary;
b.
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;
c.
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
Subsidiaries, all as reasonably determined by the Committee;
or
d.
The habitual drunkenness or drug addiction of Grantee, as
reasonably determined by the Committee.
(ii)
“ Change of Control ” shall be deemed to have
occurred upon the happening of any of the following events:
(1)
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
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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:
(x) 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 (y) 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 (x) or
(y) shall thereafter increase (other than in circumstances
described in clause (x) or (y)) 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 5(e)(ii)(1), provided such
person continues to beneficially own 30% or more of the Voting
Stock after such subsequent increase in beneficial ownership,
or
(2)
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
&n
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