Nonqualified Stock Option for Employee) PRIVATEBANCORP, INC. STOCK OPTION AGREEMENT
Exhibit
10.2
(Nonqualified
Stock Option for Employee)
This
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 undersigned Optionee (“Optionee”). Except
as otherwise indicated or defined in paragraph 1 hereof, all words with
initial capitals shall have the same meaning as ascribed to them in 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 PrivateBancorp, Inc. Incentive
Compensation Plan (the “Plan”) and this Agreement;
NOW,
THEREFORE, the parties hereto agree as follows:
Definitions.
For the
purposes of this Agreement:
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“Affiliate”
means the Company and any other direct or indirect subsidiary of the
Company.
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“Resignation”
means Optionee’s relinquishment of employment with the Company and all
Affiliates.
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“Retired
from the Industry” with respect to an Optionee means the Optionee has
retired from the Company and all Affiliates under circumstances that
constitute Special Retirement and Optionee (i) 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 an Affiliate),
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 (ii) certifies
to the Company, at such times and in such manner as the Committee may
require, that since Optionee’s retirement, Optionee has not performed any
such services.
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“Retirement”
means any Resignation or Termination other than due to death, (i) on
or after age 65 or (ii) on or after age 55 and completion of at least
seven (7) years of service with the Company or any Affiliate (including
for this purpose continuous years of service, if any, with an Affiliate
as
of the date such Affiliate was acquired by the
Company).
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“Special
Retirement” means any Resignation or Termination on or after age 62 and
completion of at least 10 years of service with the Company or any
Affiliate (including for this purpose continuous years of service,
if any,
with an Affiliate as of the date such Affiliate was acquired by the
Company).
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“Special
Retirement Termination Date” with respect to this Option means the date
following Optionee’s Special Retirement which is the first to occur of the
date (i) of Optionee’s death, (ii) on which this Option first becomes
exercisable in full (is 100% vested), or (iii) the Optionee ceases
to be
Retired from the Industry.
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“Termination”
means a termination of the employment of Optionee (i) by the Company
and
all of its Affiliates for any reason, other than a Termination For
Cause,
including, but not limited to, permanent disability (as determined
by the
Committee in accordance with the Code after receipt of medical advice)
or
(ii) due to Optionee’s death.
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“Termination
Date” means the date on which a Resignation, Termination or Termination
For Cause occurs.
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“Termination
For Cause” means a termination of the employment of Optionee by the
Company or any Affiliate 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 Optionee and the Company or any Affiliate 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 Optionee and the Company or any Affiliate, or where there is
such
an agreement but the agreement does not define “cause” (or similar words), the
termination of Optionee’s employment due to:
The
commission by Optionee, as reasonably determined by the Committee, of any theft,
embezzlement or felony against the Company or any Affiliates;
The
commission of an unlawful or criminal act by Optionee resulting in material
injury to the business or property of the Company or Affiliates or of an act
generally considered to involve moral turpitude, all as reasonably determined
by
the Committee;
The
commission of an intentional act by Optionee in the performance of Optionee’s
duties as an employee of the Company or any Affiliate amounting to gross
negligence or misconduct or resulting in material injury to the business or
property of the Company or Affiliates, all as reasonably determined by the
Committee; or
The
habitual drunkenness or drug addiction of Optionee, as reasonably determined
by
the Committee.
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 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. The Option granted hereunder shall not be treated as an incentive
stock option within the meaning of Section 422 of the Code.
Term
of Option; Vesting.
Subject
to earlier termination, acceleration or cancellation of the Option as provided
herein, the term of the Option shall be for a period ten (10) years from the
date hereof. Subject to the provisions of this Agreement, the Option shall
be
vested and exercisable at such times and as to such number of shares as
determined on the schedule set forth on the Stock Option Certificate. To the
extent not previously terminated or cancelled, 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 respect to all of the shares
covered thereby.
Method
of Exercise.
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Subject
to the terms and conditions of this Agreement, the Option may be exercised
by written notice to the Company (the “Exercise Notice”) at its offices at
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or such
other offices of the Company which are hereinafter designated by the
Company) to the attention of the Secretary of the Company. The Exercise
Notice (i) shall state (A) the election to exercise the Option and
(B) the total number of full shares in respect to which it is being
exercised, and (ii) shall be signed by the person or persons
exercising the Option.
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Optionee
shall pay the total amount due resulting from such exercise in any
of the
following forms: (i) by certified or cashier’s check for the full amount
of the purchase price of such shares; (ii) by delivery of
certificates for shares of Previously-Acquired Shares (or deemed delivery
based on attestation to the ownership of Previously-Acquired Shares)
having a Fair Market Value equal to the total payment due from Optionee;
(iii) through a simultaneous exercise of Optionee’s Option and sale of the
shares of Common Stock hereby acquired pursuant to a brokerage arrangement
approved in advance by the Committee to assure its conformity with
the
terms and conditions of the Plan; or (iv) by a combination of the methods
described in (i), (ii) and (iii) above. To the extent applicable, Optionee
shall also pay the amount, in cash, of any federal, state and local
income, Social Security and Medicare taxes required to be withheld
as a
result of the exercise, unless Optionee delivers Previously-Acquired
Shares or elects to have the Company withhold from the shares purchased,
shares having a Fair Market Value equal to such required tax withholding
amount. 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. Upon
receipt of the foregoing, the Company shall issue the shares of Common
Stock as to which the Option has been duly exercised and shall return
the
Stock Option Certificate, duly endorsed to reflect such exercise, to
Optionee.
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Restriction
on Exercise.
This
Option may not be exercised if the issuance of such shares upon such exercise
or
the method of payment of consideration for such shares would constitute a
violation of any applicable federal or state securities or other law or
regulation. As a condition to the exercise of this Option, the Company may
require Optionee to make any representation and warranty to the Company as
may
be required by any applicable law or regulation.
Effect
of Termination of Employment.
The
Option, to the extent not theretofore exercised, shall terminate on Optionee’s
Termination Date, except that:
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in
the event a Termination Date occurs due to Optionee’s Resignation or
Termination (other than in circumstances described in paragraphs (b),
(c), (d) or (e) below), Optionee may during the 90-day period following
such Resignation or Termination exercise the Option to the extent such
Option was exercisable on Optionee’s Termination
Date;
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in
the event a Termination Date occurs due to Optionee’s Termination due to
death or Termination or Resignation due to permanent disability, Optionee
or, in the event of death, Optionee’s representative may during the
one-year period following such Termination or Resignation exercise
the
Option to the extent it was exercisable on Optionee’s Termination Date;
and
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in
the event a Termination Date occurs under circumstances that constitute
Optionee’s Retirement (other than in circumstances described in paragraph
(d) below relating to Special Retirement), or in the event of a
Termination Date after a Change in Control, Optionee may during the
three-year period following such Termination Date exercise the Option
to
the extent such Option was exercisable on Optionee’s Termination
Date;
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in
the event a Termination Date occurs under circumstances that constitute
a
Special Retirement, then:
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(iii) to
the
extent exercisable on Optionee’s Termination Date, this Option may be exercised
by Optionee during the period following such Termination Date and ending three
years after the Optionee’s Special Retirement Termination Date;
(iv) to
the
extent not exercisable on the Optionee’s Termination Date, this Option shall
continue to vest and become exercisable in accordance with paragraph 3 above,
the Plan and the Stock Option Certificate as if Optionee’s employment continued
until Optionee’s Special Retirement Termination Date, and to the extent
exercisable may be exercised during such period and may be exercised during
the
three-year period following the Special Retirement Termination Date to the
extent such Option was exercisable on Optionee’s Special Retirement Termination
Date.
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in
the event of Optionee’s death during the 90-day or three-year period
described in paragraphs (a) and (c), respectively, or Optionee’s
death resulting in a Special Retirement Termination Date or during
the
three-year period after the Special Termination Retirement Date described
in paragraph (d) (i) above, Optionee’s personal representative may, during
the one-year period (or if longer, the three-year period or remainder
thereof, if applicable) following the date of Optionee’s death, exercise
the Option to the extent the Option was exercisable at the time of
Optionee’s death;
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provided,
however, that in no event shall any Option be exercised after the expiration
of
the term of the Option as described in paragraph 3.
Effect
of Termination for Cause.
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In
the event of a Termination For Cause, all unexercised Options, whether
vested or not vested, shall immediately terminate and all shares of
Common
Stock purchased hereunder within the one (1)-year period immediately
preceding such Termination For Cause (the “Option Stock”), whether held by
Optionee or one or more transferees, shall be subject to purchase by
the
Company pursuant to the terms and conditions set forth in this
paragraph 7.
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The
purchase price for shares of Common Stock purchased by the Company
pursuant to this paragraph 7 will be equal to the Option Price paid
therefore by Optionee.
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The
Company may elect to purchase all (but not less than all) of the Option
Stock by delivery of written notice (the “Purchase Notice”) to Optionee
(and any permitted transferee of the Option Stock) within 60 days
after the Termination Date. The Purchase Notice shall set forth the
number
of shares of Option Stock to be acquired from each holder and the
aggregate consideration to be paid for such
shares.
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The
closing of any purchase transaction pursuant to this paragraph 7
shall take place on the date designated in the Purchase Notice, which
date
shall not be more than 30 and not less than 10 days after delivery
of the
Purchase Notice. The Company shall be entitled to receive customary
representations and warranties with respect to the seller’s title to the
shares of Option Stock to be purchased
hereunder.
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Compliance
with Certain Laws and Regulations.
If the
Committee shall determine, in its discretion, that the listing, registration
or
qualification of the shares subject to the Option 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 the Option or the acquisition of shares thereunder, Optionee 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 Optionee at the address set forth on the records of the Company, to
the
Company at the address set forth or established pursuant to paragraph 4, 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
Optionee, 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 Optionee
may not assign any of Optionee’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.
Rights
of Employment and Future Awards.
In no
event shall the granting of this Option or Optionee’s acceptance hereof give or
be deemed to give Optionee any right to be retained in the employ of the Company
or to the receipt of any future Option or other awards under the
Plan.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Agreement effective on the
___ day of __________, 20__.
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By:
Its:
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OPTIONEE
Signature
Print
Name
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Grant
DateNumber
of
Shares
______________________________
STOCK
OPTION CERTIFICATE
THIS
CERTIFIES THAT ___________________________________ has been awarded a STOCK
OPTION to purchase ______ shares of Common Stock, without par value, of
PRIVATEBANCORP, INC. (the “Company”) at a price per share of $_________ (which
is the closing price of the Company’s Common Stock on the date hereof and which
shall for all purposes constitute the “Fair Market Value”), subject to the terms
and conditions of this Certificate, the related Stock Option Agreement of even
date herewith and the PrivateBancorp, Inc. Incentive Compensation
Plan.
Subject
to earlier termination as provided in the Stock Option Agreement or Incentive
Compensation Plan, this OPTION shall expire ten (10) years from the date of
this
Certificate. Except as may be otherwise provided in the Stock Option Agreement
or Incentive Compensation Plan, this OPTION shall vest and be exercisable as
to
all or a portion of the number of shares set forth above as
follows:
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On
and After the Following
Dates,
But Prior to Expiration
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Maximum
Percentage Taking
into
Account Prior Exercises
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[first
anniversary of date of grant]
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20%
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[second
anniversary of date of grant]
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40%
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[third
anniversary of date of grant]
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60%
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[fourth
anniversary of date of grant]
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80%
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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 Stock Option Certificate
to be signed by its duly authorized officer as of the date set forth
above..
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By:
Its:
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