exhibit104.htm


    
      
         


      

      
         


        
          

        

      

      
         


        
          Exhibit
10.4

        

      

    


    PRIVATEBANCORP,
INC.

     

    RESTRICTED STOCK AWARD
AGREEMENT

     

    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. 2007
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 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.

     

    (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.

     

    (c) 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.

     

    2. 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.

     

    3. 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.

     

    4. 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 the applicable Grant Date (which is
the first, second or third anniversary, as applicable, 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.
2007 Long-Term 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.

     

    5. Vesting; Effect of
Termination of Employment; Special Retirement.

     

    (a) 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.

     

    (b) 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.

     

    (c) 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.

     

    (d) 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.

     

    (e) 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.

     

    6. 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.

     

    7. 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.

     

    8. 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.

     

    9. 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.

     

    10. 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 70 West Madison Street, Suite 900, Chicago, Illinois
60602, 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.

     

    11. 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.

     

    12. 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.

     

    13. 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.

     

    14. 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.

     

    15. 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.

     

    16. 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.

     

    17. Miscellaneous.

     

    (a) 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.

     

    (b) 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.

     

    (c) 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.

     

    (d) “Termination For Cause” means a
termination of the employment of Grantee by the Company or any Subsidiary for
any of the following reasons:

     

    (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:

     

    (1) The
commission by Grantee, as reasonably determined by the Committee, of any theft,
embezzlement or felony against the Company or any Subsidiary;

     

    (2) 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;

     

    (3) 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

     

    (4) The
habitual drunkenness or drug addiction of Grantee, as reasonably determined by
the Committee.

     

    (e) “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.

     

    18. 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:

     

    (a) 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.

     

    (b) 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 final regulations and other published
guidance relating thereto (collectively “Section 409A”).

     

    (c) 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.

     

    (d) 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.

     

    [Signature
Page Follows]

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, the
parties have executed this Agreement effective on the ___ day of __________,
20__.

     

    
      	 
      	
              PRIVATEBANCORP,
      INC.

               

               

              By:                                                                

              Name:                                                              

              Title:                                                              

            
	 
      	
              GRANTEE

               

               

               

              Signature

               

               

               

              Print
      Name

            


    

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
              Grant
      Date

            	
              Number
      of Shares

            
	
              _______________

            	
              _______________

            


    

    


    PRIVATEBANCORP,
INC.

     

    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. 2007 Long-Term 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:

     

    
      	
              
                On
      and After

                the
      Following Dates

              

            	
              
                Maximum
      Percentage

              

            
	
              First
      anniversary of grant date

              Second
      anniversary of grant date

              Third
      anniversary of grant date

            	
              One-Third

              Two-Thirds

              100%

            


    

    


    IN WITNESS WHEREOF,
PRIVATEBANCORP, INC. has caused this Restricted Stock Award Certificate to be
signed by its duly authorized officer this ___ day of __________,
20__.

     

    
      	 
      	
              By:                                                                

              Its:                                                                

            


    

    


    

      

    

      
      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.

     

    
      	 
      	
               

              Printed
      Name:                                                              

            
	
              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.

     

    
      	 
      	
               

              Printed
      Name:                                                              

            
	
              Dated
      as of _______ __, 20__.

            	 
      


    

    


    This
Beneficiary Designation Form for Restricted Stock shall be effective on the day
it is received by the Chief Human Resources Officer (or her designee) of the
Company at 70 West Madison Street, Chicago, Illinois 60602.  This Form
shall be (i) delivered to the Chief Human Resources Officer (or hers
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 Human Resources Officer (or her 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:

              PRIVATEBANCORP,
      INC.

               

               

              By:                                                                

              Name:                                                                

              Title:Chief
      Human Resources Officer or

              a Duly Authorized
      Designee