ex10-2.htm


    EXHIBIT
      10.2

     

    PREEMPTIVE
      AND REGISTRATION RIGHTS AGREEMENT

     

    THIS
      PREEMPTIVE AND REGISTRATION RIGHTS AGREEMENT (this
“Agreement”) is entered into as of November 26, 2007 by
      and among PrivateBancorp, Inc., a Delaware corporation (the
“Company”), and the persons listed on the signature
      page hereof
      (referred to collectively herein, and including the Institutional Investor
      (as
      defined below), as the “Investors” and each individually as an
“Investor”).

     

    RECITALS

     

    WHEREAS,
      this Agreement is made pursuant to the Stock Purchase Agreement (the
“Stock Purchase Agreement”), dated as of November 26,
      2007, by and among the Company and certain purchasers of shares of the Company’s
      common stock and the Company’s Series A Junior Nonvoting Preferred Stock
      (the “Series A Stock”) thereunder, including the
      Investors.

     

    WHEREAS,
      pursuant to the Stock Purchase Agreement, (a) each of the Investors has
      agreed to purchase from the Company pursuant to a private placement offering
      by
      the Company of shares of its Common Stock, no par value (the “Common
      Stock”) and/or shares of its Series A Stock (together with the
      Common Stock, the “Shares”), and (b) the Company will
      issue the Shares to the Investors in accordance therewith; and

     

    WHEREAS,
      in connection with the consummation of the transactions contemplated by the
      Stock Purchase Agreement, the parties desire to enter into this Agreement in
      order to grant certain registration rights to the Investors, and certain
      preemptive rights to the Institutional Investor, as set forth
      below.

     

    NOW,
      THEREFORE, in consideration of the foregoing premises and for other
      good and valuable consideration, the receipt and sufficiency of which are hereby
      acknowledged, the parties hereto agree as follows:

     

    SECTION 1         GENERAL

     

    1.1           Definitions. 
      As used in this Agreement, the following terms shall have the following
      respective meanings:

     

    “Affiliate”
      of any particular Person means any other Person controlling, controlled by
      or
      under common control with such particular person or
      entity.  For purposes of clarification GTCR Fund IX/A, L.P., a
      Delaware limited partnership, GTCR Fund IX/B, L.P., a Delaware limited
      partnership and GTCR Co-Invest III, L.P., a Delaware limited partnership, shall
      be deemed to be Affiliates.

     

    “Common
      Stock” means shares of common stock, no par value per share, of the
      Company.

     

    “Exchange
      Act” means the Securities Exchange Act of 1934, as amended, or similar
      federal statute, and the rules and regulations of the Commission thereunder,
      all
      as the same shall be in effect at the time.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    “Form S-3”
      means such form under the Securities Act as in effect on the date hereof or
      any
      successor or similar registration form under the Securities Act subsequently
      adopted by the SEC which permits inclusion or incorporation of substantial
      information by reference to other documents filed by the Company with the
      SEC.

     

    “Holder”
      means any Investor, including the Institutional Investor and its Affiliates,
      who
      holds Registrable Securities and any holder of Registrable Securities to whom
      the registration rights conferred by this Agreement have been transferred in
      compliance with Section 2.10 hereof.

     

    “Institutional
      Investor” means GTCR Fund IX/A, L.P., a Delaware limited
      partnership.

     

    “Institutional
      Investor Percentage Interest” means the aggregate percentage beneficial
      ownership of the Institutional Investor and its Affiliates of the Company’s
      outstanding shares of Common Stock on the date of determination (assuming
      conversion of the Series A Stock).

     

    “Lock-up
      Agreement” has the meaning assigned thereto in Section 5.2 of the
      Stock Purchase Agreement.

     

    “New
      Stock” means Common Stock or Series A Stock, or securities
      convertible into or exchangeable for Common Stock of the Company or which have
      voting rights or participation features with Common Stock of the Company,
      offered in a public or nonpublic offering by the Company.

     

    “Person”
      means any individual, corporation, partnership, joint venture, limited liability
      company, business trust, joint stock company, trust or unincorporated
      organization or any government or any agency or political subdivision
      thereof.

     

    “Qualified
      Equity Offering” means a public or nonpublic offering of Common Stock
      or Series A Stock, or securities convertible into or exchangeable for
      Common Stock of the Company or which have voting rights or participation
      features with Common Stock of the Company (collectively, “New
      Stock”) solely for cash and not pursuant to a Special Registration;
provided, however, that none of the following offerings shall
      constitute a Qualified Equity Offering:  (a) any offering
      pursuant to any stock purchase plan, stock ownership plan, stock option or
      equity compensation plan or other similar plan where stock is being issued
      or
      offered to a trust, other entity or otherwise, to or for the benefit of any
      employees, potential employees, officers or directors of the Company, or
      (b) any offering made as consideration pursuant to an acquisition (whether
      structured as a merger or otherwise), a partnership or joint venture or
      strategic alliance or investment by the Company or similar non-capital raising
      transaction (but not an offering to raise capital to fund an
      acquisition).

     

    “Register,”
      “registered,” and “registration” shall refer
      to a registration effected by preparing and filing a registration statement
      in
      compliance with the Securities Act and applicable rules and regulations
      thereunder, and the declaration or ordering of effectiveness of such
      registration statement.

     

    “Registrable
      Securities” means (a) Shares of Common Stock; (b) any shares
      of Common Stock issued or issuable upon the conversion of any Series A
      Stock issued pursuant to

     


    
      
        
        

      

      
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    the
      Stock
      Purchase Agreement; (c) any other shares of Common Stock held by the
      Holders; and (d) any Common Stock of the Company issued as (or issuable
      upon the conversion or exercise of any warrant, right, preferred stock or other
      security which is issued as) a dividend or other distribution with respect
      to,
      or in exchange for or in replacement of, the Shares or any other shares of
      Common Stock held by the Holders, provided, however, that
      Registrable Securities shall not include any shares of Common Stock which have
      been sold to the public by a Holder either pursuant to a registration statement
      or Rule 144 under the Securities Act, or which have been sold in a private
      transaction in which the transferor’s rights under this Agreement are not
      assigned.

     

    “Registrable
      Securities then outstanding” shall be the number of shares determined
      by calculating the total number of shares of the Company’s Common Stock that are
      Registrable Securities and either (a) are then issued and outstanding or
      (b) are issuable pursuant to exercisable or convertible securities
      (including Series A Stock).

     

    “Registration
      Expenses” shall mean all expenses incurred by the Company in effecting
      any registration pursuant to this Agreement (including any Mandatory
      Registration or Shelf Registration), including, without limitation, all
      registration and filing fees, printing expenses, fees and disbursements of
      counsel for the Company, blue sky fees and expenses, and expenses of the
      Company’s independent accountants in connection with any regular or special
      reviews or audits incident to or required by any such registration, and fees
      and
      expenses of underwriters (excluding discounts and commissions) and any other
      Persons retained by the Company, but shall not include Selling Expenses, certain
      fees and disbursements of counsel for the Holders (except as set forth below)
      and the compensation of regular employees of the Company, which shall be paid
      in
      any event by the Company.  Notwithstanding the foregoing, Registration
      Expenses shall include the reasonable, documented, fees and expenses of one
      counsel chosen by the holders of a majority of the Registrable Securities
      covered by such registration for such counsel rendering services customarily
      performed by counsel for selling stockholders that are submitted to the Company
      in writing.

     

    “SEC”
      or “Commission” means the Securities and Exchange Commission
      and any successor agency.

     

    “Securities
      Act” shall mean the Securities Act of 1933, as amended, or similar
      federal statute, and the rules and regulations of the Commission thereunder,
      all
      as the same shall be in effect at the time.

     

    “Selling
      Expenses” shall mean all underwriting discounts, selling commissions
      and stock transfer taxes applicable to the sale of Registrable Securities and
      fees and disbursements of counsel for any Holder (other than the fees and
      disbursements of counsel included in Registration Expenses).

     

    “Series A
      Stock” means the Company’s Series A Junior Nonvoting Preferred
      Stock.

     

    “Shares”
      mean shares of Common Stock and/or Series A Stock issued by the Company to
      the Investors pursuant to the Stock Purchase Agreement.

     


    
      
        
        

      

      
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    “Special
      Registration” means the registration of (a) equity securities
      and/or options or other rights in respect thereof solely registered on
      Form S-4 or Form S-8 (or successor forms) or (b) shares of equity
      securities and/or options or other rights in respect thereof to be offered
      to
      directors, management, employees, potential employees, consultants, customers,
      lenders or vendors of the Company or its direct or indirect subsidiaries or
      in
      connection with dividend reinvestment plans.

     

    SECTION 2          REGISTRATION

     

    2.1           Demand
      Registration and Shelf Registration.

     

    (a)           Subject
      to the conditions of this Section 2.1 and the terms and conditions of the
      Lock-up Agreement, if the Company shall receive a written request from
      (1) the Institutional Investor, so long as the Institutional Investor and
      its Affiliates hold at least 25% of the Shares (determined on an as converted
      to
      Common Stock basis) held by the Institutional Investor and its Affiliates as
      of
      the date hereof or (2) , in the event the Institutional Investor and its
      Affiliates do not hold at least 25% of the Shares (determined on an as converted
      to Common Stock basis) held by the Institutional Investor and its Affiliates
      as
      of the date hereof, then the Holders of at least fifty percent (50%) of the
      Registrable Securities (the “Initiating Holders”) that the
      Company file a registration statement under the Securities Act covering the
      registration of at least twenty-five percent (25%) of the Registrable Securities
      then outstanding (or a lesser percent if the anticipated aggregate offering
      price, net of underwriting discounts and commissions, would exceed $50,000,000),
      then the Company shall, within ten (10) days of the receipt thereof, give
      written notice of such request to all Holders, and subject to the limitations
      of
      this Section 2.1, effect, as expeditiously as reasonably possible, the
      registration under the Securities Act of all Registrable Securities that either
      the Holders request to be registered.

     

    (b)           The
      Company shall use its reasonable best efforts to file with the SEC a
      registration statement on the applicable SEC form with respect to the resale
      from time to time, whether underwritten or otherwise, of the Registrable
      Securities by the holders thereof within nine months after the date
      hereof.  The Company shall use its reasonable best efforts to respond
      to all SEC comments related to such registration statement within 20 calendar
      days of the receipt thereof, and shall use its reasonable best efforts to cause
      such registration statement to be declared effective by the SEC within twelve
      months after the date hereof.  The Company shall use its reasonable
      best efforts to maintain the effectiveness of the registration effected pursuant
      to this Section 2.1(b) at all times, subject only to the limitations on
      effectiveness set forth in Section 2.5 below.  The registration
      contemplated by this Section 2.1(b) is referred to herein as the “Mandatory
      Registration.”  The Mandatory Registration shall be filed with the SEC
      in accordance with and pursuant to Rule 415 promulgated under the
      Securities Act (or any successor rule then in effect) (a “Shelf
      Registration”).  So long as any such Shelf Registration is
      effective as required herein and in compliance with the Securities Act and
      is
      usable for resale of Registrable Securities, the Institutional Investor or
      the
      holders of at least 50% of the Registrable Securities shall be entitled to
      demand any number of draw-downs (including underwritten draw-downs, provided
      that the anticipated aggregate offering value of the Registrable Securities
      requested to be included in such underwritten draw-down must equal at least
      twenty-five percent (25%) of the Registrable Securities then outstanding (or
      a
      lesser percent if the anticipated aggregate offering price, net of underwriting
      discounts and commissions, would exceed

     


    
      
        
        

      

      
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    $25,000,000))
      from the shelf and, in connection with any such draw-down, the Company shall
      take all customary and reasonable actions that the Company would take in
      connection with an underwritten registration pursuant to Section 2.1(a) or
      Section 2.3 (including, without limitation, all actions referred to in
      Section 2.5 necessary to effectuate such sale in the manner determined by
      the holders of at least a majority of the Registrable Securities to be included
      in such underwritten draw-down).  The Company shall use its reasonable
      efforts to cause the registration statement or statements filed on Form S-3
      or any similar short-form registration as the Company may elect to remain
      effective until such date (the “Shelf Termination Date”) as is
      the earlier of (i) the date on which all Registrable Securities included in
      the registration statement shall have been sold or shall have otherwise ceased
      to be Registrable Securities and (ii) the date on which all remaining
      Registrable Securities may be sold during any ninety (90) day period without
      any
      restriction pursuant to Rule 144 under the Securities Act, other than
      Rule 144(k), after taking into account any Holders’ status as an affiliate
      of the Company as determined by the counsel to the Company pursuant to a written
      opinion letter addressed to the Company’s transfer agent to such
      effect.  In the event the Mandatory Registration must be effected on
      Form S-1 or any similar long-form registration as the Company may elect,
      such registration shall nonetheless be filed as a Shelf Registration and the
      Company shall use its commercially reasonable efforts to keep such registration
      current and effective, including by filing periodic post-effective amendments
      to
      update the financial statements contained in such registration statement in
      accordance with Regulation S-X promulgated under the Securities Act until
      the Shelf Termination Date.  The Company shall not include in the
      Mandatory Registration any securities which are not Registrable Securities
      without the prior written consent of the holders of at least a majority of
      the
      Registrable Securities included in such registration.

     

    (c)           If
      the Institutional Investor or the Initiating Holders, as the case may be, intend
      to distribute the Registrable Securities covered by their request by means
      of an
      underwriting or any underwritten takedown off the registration statement filed
      pursuant to the Mandatory Registration, they shall so advise the Company as
      a
      part of their request made pursuant to this Section 2.1 or any request
      pursuant to Section 2.3 and the Company shall include such information in
      the written notice referred to in Section 2.1(a), Section 2.1(b) or
      Section 2.3(a), as applicable.  In such event, the right of any
      Holder to include such Holder’s Registrable Securities in such registration or
      underwritten takedown off the registration statement filed pursuant to the
      Mandatory Registration shall be conditioned upon such Holder’s participation in
      such underwriting and the inclusion of such Holder’s Registrable Securities in
      the underwriting to the extent provided herein.  All Holders proposing
      to distribute their securities through such underwriting shall enter into an
      underwriting agreement in customary form with the underwriter or underwriters
      selected for such underwriting by the Company and reasonably acceptable to
      the
      Institutional Investor, so long as the Institutional Investor and its Affiliates
      hold at least 25% of the Shares (determined on an as converted to Common Stock
      basis) held by the Institutional Investor and its Affiliates as of the date
      hereof, and, in the event the Institutional Investor and its Affiliates do
      not
      hold at least 25% of the Shares (determined on an as converted to Common Stock
      basis) held by the Institutional Investor and its Affiliates as of the date
      hereof, then the Holders of a majority of the Registrable Securities; provided
      that no holder of Registrable Securities included in any underwritten
      registration or underwritten takedown off the registration statement filed
      pursuant to the Mandatory Registration shall be required to make any
      representations or warranties to the Company or the underwriters (other than
      representations and warranties regarding such holder, such holder’s title to the
      securities and

     


    
      
        
        

      

      
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    such
      holder’s intended method of distribution) or, without the consent of the
      Institutional Investor, to undertake any indemnification obligations to the
      Company or the underwriters with respect thereto, except as otherwise provided
      in Section 2.9 below.

     

    Notwithstanding
      any other provision of this Section 2.1 or Section 2.3, if the
      underwriter advises the Company that marketing factors require a limitation
      of
      the number of securities to be underwritten (including Registrable Securities)
      then the Company shall so advise all Holders of Registrable Securities which
      would otherwise be underwritten pursuant hereto, and the number of shares that
      may be included in the underwriting shall be allocated to the Holders of such
      Registrable Securities on a pro rata basis based on the number of Registrable
      Securities held by all such Holders (including the Initiating
      Holders).  Any Registrable Securities excluded or withdrawn from such
      underwriting shall be withdrawn from the registration.

     

    (d)           The
      Company shall not be required to effect a registration pursuant to this
      Section 2.1 other than the Mandatory Registration pursuant to
      Section 2.1(b) above:  (i) prior to the first anniversary
      date on the Closing Date (as defined in the Stock Purchase Agreement);
      (ii) after the Company has effected two (2) registrations pursuant to this
      Section 2.1, and such registration has been declared or ordered effective
      and kept effective by the Company as required by Section 2.5(a) of this
      Agreement and at least fifty percent (50%) of the Registrable Securities thereby
      are sold; (iii) during the period starting with the date thirty (30) days
      prior to the Company’s good faith estimate of the date of filing of, and ending
      on a date ninety (90) days after the effective date of, a Company-initiated
      registration; provided that the Company is actively employing in good faith
      all
      reasonable efforts to cause such registration statement to become effective;
      (iv) if the Company shall furnish to the Institutional Investor and the
      Holders requesting a registration statement pursuant to this Section 2.1, a
      certificate signed by the Chairman of the Board stating that in the good faith
      and reasonable judgment of the Board of Directors of the Company, the
      anticipated offering would be seriously detrimental to the Company and its
      stockholders for such registration statement to be effected at such time (but
      excluding any detriment to the Company solely as a result of its impact on
      the
      share price), in which event the Company shall have the right to defer such
      filing for a period of not more than ninety (90) days after receipt of the
      request of the Institutional Investor or Initiating Holders; provided
      that such right to delay a request shall be exercised by the Company not
      more than twice in any twelve (12) month period; or (v) if the
      Institutional Investor or Initiating Holders propose to dispose of shares of
      Registrable Securities that may be immediately registered on Form S-3
      pursuant to a request made pursuant to Section 2.3
      below.  Notwithstanding the foregoing, any expenses in connection with
      such registration or attempted registration shall be Registration
      Expenses.

     

    (e)           The
      Company may include in any such registration other securities for sale for
      its
      own account or for the account of any other Person; provided that, if
      the underwriter for the offering shall determine that the number of shares
      proposed to be offered in such offering would be reasonably likely to adversely
      affect such offering, then the securities to be sold by the Institutional
      Investor and/or the Holders shall be included in such registration before any
      securities proposed to be sold for the account of the Company or any other
      Person.

     

    (f)           The
      Company shall not grant to any other Person the right to request the Company
      (i) to register any shares of Common Stock in a demand registration unless
      such rights

     


    
      
        
        

      

      
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    are
      consistent with the provisions hereof, or (ii) to register any securities
      of the Company (other than shares of Common Stock) in a demand
      registration.

     

    2.2           Piggyback
      Registrations.

     

    (a)           Subject
      to the terms and conditions of the Lock-up Agreement, the Company shall notify
      each Investor who holds, and all Holders of, Registrable Securities in writing
      at least ten (10) days prior to the filing of any registration statement under
      the Securities Act for purposes of a public offering of securities of the
      Company (whether in connection with a public offering of securities by the
      Company, a public offering of securities by shareholders of the Company, or
      both, but excluding a registration relating solely to employee benefit plans,
      or
      a registration relating to a corporate reorganization or other transaction
      on
      Form S-4, or a registration on any registration form that does not permit
      secondary sales) and will afford each such Investor and/or Holder an opportunity
      to include in such registration statement all or part of such Registrable
      Securities held by such Investor and/or Holder as set forth
      herein.  Each Investor and/or Holder desiring to include in any such
      registration statement all or any part of the Registrable Securities held by
      such Investor and/or Holder shall, within five (5) days after the
      above-described notice from the Company, so notify the Company in
      writing.  Such notice shall state the intended method of disposition
      of the Registrable Securities by such Investor and/or Holder as set forth
      herein.  If an Investor and/or Holder decides not to include all of
      its Registrable Securities in any registration statement thereafter filed by
      the
      Company, such Investor or Holder shall nevertheless continue to have the right
      to include any Registrable Securities in any subsequent registration statement
      or registration statements as may be filed by the Company with respect to
      offerings of its securities, all upon the terms and conditions set forth
      herein.

     

    (b)           Underwriting.  If
      the registration statement under which the Company gives notice under this
      Section 2.2 is for an underwritten offering, the Company shall so advise
      Investors who hold, and the Holders of, Registrable Securities.  In
      such event, the right of any such Investor and/or Holder to be included in
      a
      registration pursuant to this Section 2.2 shall be conditioned upon such
      Investor’s or Holder’s participation in such underwriting and the inclusion of
      such Investor’s and/or Holder’s Registrable Securities in the underwriting to
      the extent provided herein.  All Investors and/or Holders proposing to
      distribute their Registrable Securities through such underwriting shall enter
      into an underwriting agreement in customary form with the underwriter or
      underwriters selected for such underwriting by the Company.

     

    Notwithstanding
      any other provision of this Agreement, if the underwriter determines in good
      faith that marketing factors require a limitation of the number of shares to
      be
      underwritten, the number of shares that may be included in the underwriting
      shall be allocated first to the Company; second, to all Investors and/or Holders
      who are entitled to participate and who have elected to participate in the
      offering pursuant to the terms of this Agreement, on a pro rata basis based
      upon
      the total number of shares held by each such participating Investor or Holder
      that are subject to piggyback registration rights pursuant hereto; and third,
      to
      any other stockholder of the Company on a pro rata basis.

     

    If
      any
      Investor or Holder disapproves of the terms of any such underwriting, such
      Investor or Holder may elect to withdraw therefrom by written notice to the
      Company and the

     


    
      
        
        

      

      
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    underwriter,
      delivered at least ten (10) calendar days prior to the effective date of the
      registration statement.  Any Registrable Securities excluded or
      withdrawn from such underwriting shall be excluded and withdrawn from the
      registration.  For any Investor or Holder which is a partnership or
      corporation, the partners, stockholders, subsidiaries, parents and affiliates
      of
      such Investor or Holder, or the estates and family members of any such partners
      and retired partners and any trusts for the benefit of any of the foregoing
      Persons shall be deemed to be a single “Investor” or “Holder”, as the case may
      be, and any pro rata reduction with respect to such “Investor” or “Holder” shall
      be based upon the aggregate amount of shares carrying registration rights owned
      by all entities and individuals included in such “Investor” or “Holder”, as
      defined in this sentence.

     

    (c)           Right
      to Terminate Registration.  The Company shall have the right to
      terminate or withdraw any registration initiated by it under this
      Section 2.2 prior to the effectiveness of such registration whether or not
      any Investor and/or Holder has elected to include securities in such
      registration.  The Registration Expenses of such withdrawn
      registration shall be borne by the Company in accordance with Section 2.4
      hereof.

     

    (d)           The
      Company shall not grant to any other Person the right to request the Company
      (i) to register any shares of Common Stock in a piggyback registration
      unless such rights are consistent with the provisions hereof, or (ii) to
      register any securities of the Company (other than shares of Common Stock)
      in a
      piggyback registration.

     

    2.3           Form S-3
      Registration.  Subject to the Lock-up Agreement, in case the
      Company shall receive at any time from (1) the Institutional Investor, so
      long as the Institutional Investor and its Affiliates hold at least 25% of
      the
      Shares (determined on an as converted to Common Stock basis) held by the
      Institutional Investor and its Affiliates as of the date hereof, or (2) in
      the event the Institutional Investor and its Affiliates do not hold at least
      25%
      of the Shares (determined on an as converted to Common Stock basis) held by
      the
      Institutional Investor and its Affiliates as of the date hereof, then the
      Holders of at least 50% of the Registrable Securities then outstanding a written
      request or requests that the Company effect a registration on Form S-3 (or
      any successor to Form S-3) or any similar short-form registration statement
      and any related qualification or compliance with respect to all or a part of
      the
      Registrable Securities owned by the Institutional Investor or such Holder or
      Holders, the Company will:

     

    (a)           promptly
      give written notice of the proposed registration, and any related qualification
      or compliance, to all other Holders of Registrable Securities; and

     

    (b)           as
      soon as practicable, file such registration statement and use its commercially
      reasonable efforts to have such registration statement declared effective and
      obtain all such qualifications and compliances as may be so requested and as
      would permit or facilitate the sale and distribution of all or such portion
      of
      the Institutional Investor’s or such Holder’s or Holders’ Registrable Securities
      as are specified in such request, together with all or such portion of the
      Registrable Securities of any other Holder or Holders joining in such request
      as
      are specified in a written request given within ten (10) days after receipt
      of
      such written notice from the Company; provided, however, that
      the Company shall not be obligated to effect any such registration,
      qualification or compliance pursuant to this
      Section 2.3:  (i) prior to the first anniversary date of the
      Closing Date (as defined in the Stock Purchase Agreement);
      (ii) if

     


    
      
        
        

      

      
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    Form S-3
      is not available for such offering by the Institutional Investor or the Holders;
      (iii) if the Institutional Investor and the Holders, together with the
      holders of any other securities of the Company entitled to inclusion in such
      registration, propose to sell Registrable Securities and such other securities
      (if any) at an anticipated aggregate offering price to the public of less than
      twenty-five million dollars ($25,000,000); or (iv) if the Company shall
      furnish to the Institutional Investor and the Holders a certificate signed
      by
      the Chairman of the Board of Directors of the Company stating that in the good
      faith and reasonable judgment of the Board of Directors of the Company, it
      would
      be seriously detrimental to the Company and its stockholders for such
      Form S-3 registration to be effected at such time (but excluding any
      detriment to the Company solely as a result of its impact on the share price),
      in which event the Company shall have the right to defer the filing of the
      Form S-3 registration statement for a period of not more than ninety (90)
      days after receipt of the request of the Institutional Investor or the Holder
      or
      Holders under this Section 2.3; provided, that such right to delay a
      request shall be exercised by the Company not more than twice in any twelve
      (12)
      month period; or (iv) after the Company has effected four (4) registrations
      on Form S-3 pursuant to this Section 2.3 and such registrations have
      been declared or ordered effective.  Notwithstanding the foregoing,
      any expenses in connection with such registration or attempted registration
      shall be Registration Expenses.

     

    (c)           Subject
      to the foregoing, the Company shall file a Form S-3 registration statement
      covering the Registrable Securities and other securities so requested to be
      registered as soon as reasonably practicable after receipt of the request or
      requests of the Institutional Investor or such Holders.  Registrations
      effected pursuant to this Section 2.3 shall not be counted as a demand for
      registration or registrations effected pursuant to Sections 2.1 or 2.2,
      respectively.

     

    (d)           The
      Company shall not grant to any other Person the right to request the Company
      to
      register any shares of Common Stock in an S-3 registration unless such rights
      are consistent with the provisions hereof, except in the case of a Form S-3
      registration statement filed to register any shares of Common Stock issued
      in
      connection with any acquisition, merger or similar transaction by the
      Company.

     

    2.4           Expenses
      of Registration.  Except as specifically provided herein, all
      Registration Expenses incurred in connection with any registration,
      qualification or compliance hereunder shall be borne by the
      Company.  All Selling Expenses incurred in connection with any
      registrations hereunder, shall be borne by the holders of the securities so
      registered pro rata on the basis of the number of shares so
      registered.  The Company shall not, however, be required to pay for
      expenses of any registration proceeding begun pursuant to Section 2.1 or
      2.3, the request of which has been subsequently withdrawn by the Institutional
      Investor or the Initiating Holders or requesting Holder(s) unless (a) the
      Company has requested the Institutional Investor or the Initiating Holders
      or
      requesting Holder(s) to withdraw such request or the Company and the
      Institutional Investor, Initiating Holders or requesting Holders(s) jointly
      determine that such request should be withdrawn, (b) the withdrawal is
      based upon material adverse information concerning the Company that the Company
      had not publicly revealed at least forty-eight (48) hours prior to the request
      or that the Company had not otherwise notified the Institutional Investor or
      the
      Initiating Holders or requesting Holders of at the time of such request or
      (c) the Institutional Investor or the Holders of a majority of Registrable
      Securities, as the case may be, agree to forfeit their right to one requested
      registration pursuant to Section 2.1 or Section 2.3, as applicable, in
      which event such right shall be forfeited by all Holders.

     


    
      
        
        

      

      
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    If
      the
      Institutional Investor and/or the Holders are required to pay the Registration
      Expenses, such expenses shall be borne by the Institutional Investor or the
      Holders of securities (including Registrable Securities) requesting such
      registration in proportion to the number of shares for which registration was
      requested.  If the Company is required to pay the Registration
      Expenses of a withdrawn offering pursuant to clause (a) above, then the
      Institutional Investor or the Holders, as the case may be, shall not forfeit
      their rights pursuant to Section 2.1 or Section 2.3.

     

    2.5           Obligations
      of the Company.  In the Mandatory Registration and whenever
      required to effect the registration of any Registrable Securities, the Company
      shall, as expeditiously as reasonably possible:

     

    (a)           Subject
      to Section 2.1(b) in the case of the Mandatory Registration, prepare and
      file with the SEC a registration statement, and all amendments and supplements
      thereto and related prospectuses as may be necessary to comply with applicable
      securities laws, with respect to such Registrable Securities and use its best
      efforts to cause such registration statement to become effective (provided
      that
      before filing a registration statement or prospectus or any amendments or
      supplements thereto, the Company shall furnish to the counsel selected by the
      Holders of a majority of the Registrable Securities covered by such registration
      statement copies of all such documents proposed to be filed, and the Company
      shall in good faith consider any comments of such counsel).

     

    (b)           Prepare
      and, within 60 days after the end of the period within which requests for
      registration have been given to the Company, file with the SEC a registration
      statement with respect to such Registrable Securities and use all reasonable
      best efforts to cause such registration statement to become effective (provided
      that, before filing a registration statement or prospectus or any amendments
      or
      supplements thereto, the Company shall furnish to the counsel selected by the
      holders of a majority of Registrable Securities covered by such registration
      statement copies of all such documents proposed to be filed, and the Company
      shall in good faith consider any comments of such counsel), notify in writing
      each Holder of the effectiveness of each registration statement filed hereunder,
      and, upon the request of the Holders of a majority of the Registrable Securities
      registered thereunder, keep such registration statement effective for up to
      one
      hundred and eighty (180) days or, if earlier, until the Holder or Holders have
      completed the distribution related thereto (or, in the case of a Shelf
      Registration, a period ending on such date as is the earlier of (i) the
      date on which all Registrable Securities included in the registration statement
      shall have been sold or shall have otherwise ceased to be Registrable Securities
      and (ii) the date on which all remaining Registrable Securities may be sold
      during any ninety (90) day period without any restriction pursuant to
      Rule 144 under the Securities Act, other than Rule 144(k), after
      taking into account any holders’ status as an affiliate of the Company as
      determined by the counsel to the Company pursuant to a written opinion letter
      addressed to the Company’s transfer agent to such effect).

     

    (c)           Prepare
      and file with the SEC such amendments and supplements to such registration
      statement and the prospectus used in connection with such registration statement
      as may be necessary to comply with the provisions of the Securities Act with
      respect to the disposition of all securities covered by such registration
      statement for the period set forth in paragraph (a) above.

     


    
      
        
        

      

      
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    (d)           Furnish
      to the Investors and Holders such number of copies of a prospectus, including
      a
      preliminary prospectus, in conformity with the requirements of the Securities
      Act, and such other documents as they may reasonably request in order to
      facilitate the disposition of Registrable Securities owned by them.

     

    (e)           Use
      its commercially reasonable efforts to register and qualify the securities
      covered by such registration statement under such other securities or Blue
      Sky
      laws of such jurisdictions as shall be reasonably requested by the Holders;
      provided that the Company shall not be required in connection therewith or
      as a
      condition thereto to qualify to do business or to file a general consent to
      service of process in any such states or jurisdictions.

     

    (f)           In
      the event of any underwritten public offering, enter into and perform its
      obligations under an underwriting agreement, in usual and customary form, with
      the managing underwriter(s) of such offering.  Each Investor and/or
      Holder participating in such underwriting shall also enter into and perform
      its
      obligations under such an agreement.

     

    (g)           Notify
      each Investor who holds, and each Holder of, Registrable Securities covered
      by
      such registration statement at any time when a prospectus relating thereto
      is
      required to be delivered under the Securities Act of the happening of any event
      as a result of which the prospectus included in such registration statement,
      as
      then in effect, includes an untrue statement of a material fact or omits to
      state a material fact required to be stated therein or necessary to make the
      statements therein not misleading in light of the circumstances then existing
      and, at the request of the holders of a majority of the Registrable Securities
      covered by such registration statement, the Company shall promptly prepare
      and
      furnish to each such seller a reasonable number of copies of a supplement or
      amendment to such prospectus so that, as thereafter delivered to the purchasers
      of such Registrable Securities, such prospectus shall not contain an untrue
      statement of a material fact or omit to state any fact necessary to make the
      statements therein not misleading in light of the circumstances under which
      they
      were made.

     

    (h)           Use
      its commercially reasonable efforts to furnish, on the date that such
      Registrable Securities are delivered to the underwriters for sale, if such
      securities are being sold through underwriters, (i) an opinion, dated as of
      such date, of the counsel representing the Company for the purposes of such
      registration, in form and substance as is customarily given to underwriters
      in
      an underwritten public offering, addressed to the underwriters, if any, and
      (ii) a letter dated as of such date, from the independent registered public
      accountants of the Company, in form and substance as is customarily given by
      independent registered public accountants to underwriters in an underwritten
      public offering addressed to the underwriters.

     

    (i)           In
      the event of the issuance of any stop order suspending the effectiveness of
      a
      registration statement, or any order suspending or preventing the use of any
      related prospectus or suspending the qualification of any equity securities
      included in such registration statement for sale in any jurisdiction, the
      Company shall use its reasonable best efforts promptly to obtain the withdrawal
      of such order.

     

    2.6           Suspension
      of Sales.  Upon receipt of written notice from the Company that a
      registration statement or prospectus contains an untrue statement of a material
      fact or omits to state a material fact required to be stated therein or
      necessary to make the statements therein not

     


    
      
        
        

      

      
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    misleading
      (a “Misstatement”), each Investor who holds, and each Holder
      of, Registrable Securities shall forthwith discontinue disposition of
      Registrable Securities until such Investor and/or Holder has received copies
      of
      the supplemented or amended prospectus that corrects such Misstatement, or
      until
      such Investor and/or Holder is advised in writing by the Company that the use
      of
      the prospectus may be resumed, and, if so directed by the Company, such Investor
      and/or Holder shall deliver to the Company (at the Company’s expense) all
      copies, other than permanent file copies then in such Investor’s or Holder’s
      possession, of the prospectus covering such Registrable Securities current
      at
      the time of receipt of such notice.  The total number of days that any
      such suspension may be in effect in any 180 day period shall not exceed 45
      days.

     

    2.7           Termination
      of Registration Rights.  An Investor’s and a Holder’s registration
      rights shall expire if all Registrable Securities held by such Investor or
      Holder (and its Affiliates, partners, members and former members) may be sold
      without any restriction under Rule 144 under the Securities Act, other than
      Rule 144(k), during any ninety (90) day period after taking into account
      any Holders’ status as an affiliate of the Company as determined by the counsel
      to the Company pursuant to a written opinion letter addressed to the Company’s
      transfer agent to such effect.

     

    2.8           Delay
      of Registration; Furnishing Information.

     

    (a)           No
      Investor or Holder shall have any right to obtain or seek an injunction
      restraining or otherwise delaying any such registration as the result of any
      controversy that might arise with respect to the interpretation or
      implementation of this Section 2.

     

    (b)           It
      shall be a condition precedent to the obligations of the Company to take any
      action pursuant to Section 2.1, 2.2 or 2.3 that the selling Investors
      and/or Holders shall furnish to the Company such information regarding
      themselves, the Registrable Securities held by them and the intended method
      of
      disposition of such securities as shall be required to effect the registration
      of their Registrable Securities.

     

    (c)           The
      Company shall have no obligation with respect to any registration requested
      pursuant to Section 2.1 or Section 2.3 (except that any expenses in
      connection with such registration or attempted registration shall be
      Registration Expenses) if the number of shares or the anticipated aggregate
      offering price of the Registrable Securities to be included in the registration
      does not equal or exceed the number of shares or the anticipated aggregate
      offering price required to originally trigger the Company’s obligation to
      initiate such registration as specified in Section 2.1 or Section 2.3,
      whichever is applicable.

     

    2.9           Indemnification.  In
      the event any Registrable Securities are included in a registration statement
      under this Section 2:

     

    (a)           To
      the extent permitted by law, the Company will indemnify and hold harmless each
      Investor, Holder, any underwriter (as defined in the Securities Act) for such
      Investor or Holder and each person, if any, who controls such Investor or Holder
      or underwriter within the meaning of the Securities Act or the Exchange Act,
      against any losses, claims, damages, or liabilities (joint or several) to which
      they may become subject under the Securities Act, or the Exchange Act or other
      federal or state law, insofar as such losses, claims, damages, or

     


    
      
        
        

      

      
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    liabilities
      (or actions in respect thereof) arise out of or are based upon any of the
      following statements, omissions or violations (collectively, a
“Violation”):  (i) any untrue statement or
      alleged untrue statement of a material fact contained in such registration
      statement, including any preliminary prospectus or final prospectus contained
      therein or any amendments or supplements thereto, (ii) the omission or
      alleged omission to state therein a material fact required to be stated therein,
      or necessary to make the statements therein not misleading, or (iii) any
      violation or alleged violation by the Company of the Securities Act, the
      Exchange Act, any state securities law or any rule or regulation promulgated
      under the Securities Act, the Exchange Act or any state securities law; and
      the
      Company will pay to each such Investor, Holder, underwriter or controlling
      person, as accrued any legal or other expenses reasonably incurred by them
      in
      connection with investigating or defending any such loss, claim, damage,
      liability, or action; provided, however, that the indemnity
      agreement contained in this Section 2.9(a) shall not apply to amounts paid
      in settlement of any such loss, claim, damage, liability, or action if such
      settlement is effected without the consent of the Company (which consent shall
      not be unreasonably withheld), nor shall the Company be liable in any such
      case
      for any such loss, claim, damage, liability, or action to the extent that it
      arises out of or is based upon a Violation which occurs in reliance upon and
      in
      conformity with written information furnished expressly for use in connection
      with such registration statement by any such Investor, Holder, underwriter
      or
      controlling person.

     

    (b)           To
      the extent permitted by law and provided that such Holder is not entitled to
      indemnification pursuant to Section 2.9(a) above with respect to such
      matter, each selling Investor or Holder (severally and not jointly) will
      indemnify and hold harmless the Company, each of its directors, each of its
      officers who has signed the registration statement, each person, if any, who
      controls the Company within the meaning of the Securities Act, any underwriter,
      any other Investor or Holder selling securities in such registration statement
      and any controlling person of any such underwriter or other Investor or Holder,
      against any losses, claims, damages, or liabilities to which any of the
      foregoing persons may become subject under the Securities Act, the Exchange
      Act
      or other federal or state law, insofar as such losses, claims, damages, or
      liabilities (or actions in respect thereof) arise out of or are based upon
      any
      (i) untrue statement or alleged untrue statement of a material fact
      regarding such Holder and provided in writing by such Holder which is contained
      in such registration statement, including any preliminary prospectus or final
      prospectus contained therein or any amendments or supplements thereto or
      (ii) the omission or alleged omission to state therein a material fact
      required to be stated therein, or necessary to make the statements therein
      not
      misleading, in each case to the extent (and only to the extent) that such untrue
      statement or alleged untrue statement or omission or alleged omission was made
      in such registration statement, preliminary or final prospectus, amendment
      or
      supplement thereto, in reliance upon and in conformity with written information
      furnished by such Investor or Holder expressly for use in connection with such
      registration statement; and each such Investor or Holder will pay, as accrued,
      any legal or other expenses reasonably incurred by any Person intended to be
      indemnified pursuant to this Section 2.9(b), in connection with
      investigating or defending any such loss, claim, damage, liability, or action
      as
      a result of such Holder’s untrue statement or omission; provided,
however, that the indemnity agreement contained in this
      Section 2.9(b) shall not apply to amounts paid in settlement of any such
      loss, claim, damage, liability or action if such settlement is effected without
      the consent of the Investor or Holder (which consent shall not be unreasonably
      withheld); provided, that, (x) the indemnification obligations in this
      Section 2.9(b) shall be individual and ratable not joint and

     


    
      
        
        

      

      
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    several
      for each Holder and (y) in no event shall the aggregate of all
      indemnification payments by any Investor and/or Holder under this
      Section 2.9(b) exceed the net proceeds from the offering received by such
      Investor and/or Holder.

     

    (c)           Promptly
      after receipt by an indemnified party under this Section 2.9 of notice of
      the commencement of any action (including any governmental action), such
      indemnified party will, if a claim in respect thereof is to be made against
      any
      indemnifying party under this Section 2.9, deliver to the indemnifying
      party a written notice of the commencement thereof and the indemnifying party
      shall have the right to participate in, and, to the extent the indemnifying
      party so desires, jointly with any other indemnifying party similarly noticed,
      to assume the defense thereof with counsel mutually satisfactory to the parties;
      provided, however, that an indemnified party (together with
      all other indemnified parties which may be represented without conflict by
      one
      counsel) shall have the right to retain one separate counsel, with the
      reasonable fees and expenses to be paid by the indemnifying party, if
      representation of such indemnified party by the counsel retained by the
      indemnifying party would be inappropriate due to actual or potential differing
      interests between such indemnified party and any other party represented by
      such
      counsel in such proceeding.  The failure to deliver written notice to
      the indemnifying party within a reasonable time of the commencement of any
      such
      action shall not relieve such indemnifying party of any liability to the
      indemnified party under this Section 2.8, except to the extent such failure
      to give notice has a material adverse effect on the ability of the indemnifying
      party to defend such action.

     

    (d)           If
      the indemnification provided for in this Section 2.9 is held by a court of
      competent jurisdiction to be unavailable to an indemnified party with respect
      to
      any loss, liability, claim, damage, or expense referred to therein, then the
      indemnifying party, in lieu of indemnifying such indemnified party hereunder,
      shall contribute to the amount paid or payable by such indemnified party as
      a
      result of such loss, liability, claim, damage, or expense in such proportion
      as
      is appropriate to reflect the relative fault of the indemnifying party on the
      one hand and of the indemnified party on the other in connection with the
      statements or omissions that resulted in such loss, liability, claim, damage,
      or
      expense as well as any other relevant equitable considerations.  The
      relative fault of the indemnifying party and of the indemnified party shall
      be
      determined by reference to, among other things, whether the untrue or alleged
      untrue statement of a material fact or the omission to state a material fact
      relates to information supplied by the indemnifying party or by the indemnified
      party and the parties’ relative intent, knowledge, access to information, and
      opportunity to correct or prevent such statement or
      omission.  Notwithstanding the foregoing, the amount any Investor or
      Holder will be obligated to contribute pursuant to this Section 2.9(d) will
      be limited to an amount equal to the per share public offering price (less
      any
      underwriting discount and commissions) multiplied by the number of shares of
      Registrable Securities sold by such Investor or Holder pursuant to the
      registration statement which gives rise to such obligation to contribute (less
      the aggregate amount of any damages which such Investor or Holder has otherwise
      been required to pay in respect of such loss, liability, claim, damage, or
      expense or any substantially similar loss, liability, claim, damage, or expense
      arising from the sale of such Registrable Securities).  No person
      guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
      of the Securities Act) will be entitled to contribution hereunder from any
      person who was not guilty of such fraudulent misrepresentation.

     


    
      
        
        

      

      
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    (e)           Notwithstanding
      the foregoing, to the extent that the provisions on indemnification and
      contribution contained in the underwriting agreement entered into in connection
      with the underwritten public offering are in conflict with the foregoing
      provisions, the provisions in the underwriting agreement shall control; provided
      that the indemnification provisions of the Holders in any underwriting agreement
      may not conflict with the provisions of this Section 2.9 without the
      consent of the Institutional Investor.

     

    (f)           The
      obligations of the Company and Holders under this Section 2.9 shall survive
      the completion of any offering of Registrable Securities in a registration
      statement under this Section 2, and otherwise.

     

    2.10           Assignment
      of Registration Rights.  The rights to cause the Company to
      register Registrable Securities pursuant to this Agreement may be assigned
      by an
      Investor or Holder to a transferee or assignee of Registrable Securities to
      which (a) there is transferred to such transferee no less than twenty
      thousand (20,000) shares of Registrable Securities, appropriately adjusted
      to
      reflect any stock splits, stock dividends, subdivisions, reverse splits and
      similar events, (b) there is transferred to such transferee at least ten
      percent (10%) of the shares of Registrable Securities held by the Investor
      or
      Holder, (c) such transferee is an Affiliate, subsidiary or parent company,
      family member or family trust for the benefit of a party hereto, or
      (d) such transferee or transferees are partners of an Investor or Holder,
      who agree to act through a single representative; provided,
however, (i) the transferor shall furnish to the Company written
      notice of the name and address of such transferee or assignee and the securities
      with respect to which such registration rights are being assigned and
      (ii) such transferee shall agree to be subject to all restrictions set
      forth in this Agreement.

     

    2.11           “Market
      Stand-Off’ Agreement; Agreement to Furnish Information.  Each
      Investor and Holder hereby agrees that such Investor and/or Holder shall not
      sell, transfer, make any short sale of, grant any option for the purchase of,
      or
      enter into any hedging or similar transaction with the same economic effect
      as a
      sale, any Common Stock (or other securities) of the Company held by such
      Investor or Holder (other than those included in the registration) for a period
      specified by the representative of the underwriters of Common Stock (or other
      securities) of the Company not to exceed ten (10) days prior and ninety (90)
      days following the effective date of a registration statement of the Company
      filed under the Securities Act; provided that all executive officers and
      directors of the Company enter into similar agreements and only if such Persons
      remain subject thereto (and are not released from such agreement) for such
      90
      day period.  Each Investor and Holder agrees to execute and deliver
      such other agreements as may be reasonably requested by the Company or the
      underwriter which are consistent with the foregoing or which are necessary
      to
      give further effect thereto.

     

    In
      addition, if requested by the Company or the representative of the underwriters
      of Common Stock (or other securities) of the Company, each Investor and Holder
      shall provide, within ten (10) days of such request, such information as may
      be
      required by the Company or such representative in connection with the completion
      of any public offering of the Company’s securities pursuant to a registration
      statement filed under the Securities Act.

     

    The
      obligations described in this Section 2.11 shall not apply to a
      registration relating solely to employee benefit plans on Form S-1 or
      Form S-8 or similar forms that may be

     


    
      
        
        

      

      
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    promulgated
      in the future, or a registration relating solely to a Commission Rule 145
      transaction on Form S-4 or similar forms that may be promulgated in the
      future.  The Company may impose stop-transfer instructions with
      respect to the shares of Common Stock (or other securities) subject to the
      foregoing restriction until the end of said 90 day period.  Each
      Investor and Holder agrees that any transferee of any shares of Registrable
      Securities shall be bound by this Section 2.11.

     

    2.12           Rule 144
      Reporting.  With a view to making available to the Investors and
      Holders the benefits of certain rules and regulations of the SEC which may
      permit the sale of the Registrable Securities to the public without
      registration, the Company agrees to use its best efforts to:

     

    (a)           make
      and keep public information available, as those terms are understood and defined
      in SEC Rule 144 or any similar or analogous rule promulgated under the
      Securities Act, at all times after the effective date of this
      Agreement;

     

    (b)           file
      with the SEC, in a timely manner, all reports and other documents required
      of
      the Company under the Exchange Act; and

     

    (c)           so
      long as an Investor or Holder owns any Registrable Securities, furnish to such
      Investor or Holder forthwith upon request: a written statement by the Company
      as
      to its compliance with the reporting requirements of Rule 144 under the
      Securities Act, and of the Exchange Act; a copy of the most recent annual or
      quarterly report of the Company; and such other reports and documents as an
      Investor or  Holder may reasonably request in availing itself of any
      rule or regulation of the SEC allowing it to sell any such securities without
      registration.

     

    SECTION 3          PREEMPTIVE
      RIGHTS OF INSTITUTIONAL INVESTOR

     

    3.1           Sale
      of New Stock.  Until the date on which the Institutional Investor
      and its Affiliates collectively own less than five percent (5.0%) of the
      outstanding Common Stock of the Company (assuming conversion of the
      Series A Stock), if the Company at any time or from time to time makes a
      Qualified Equity Offering, the Institutional Investor and its Affiliates shall
      be afforded the opportunity to acquire from the Company for the same price
      and
      on the same terms as such securities are proposed to be offered to others,
      in
      the aggregate up to the amount of New Stock required to enable it to maintain
      its Institutional Investor Percentage Interest.

     

    3.2           Notice.

     

    (a)           In
      the event the Company intends to make a Qualified Equity Offering that is an
      underwritten public offering or a private offering made to Qualified
      Institutional Buyers for resale pursuant to Rule 144A under the Securities
      Act, no later than five (5) business days after the initial filing of a
      registration statement with the SEC with respect to such underwritten public
      offering or the commencement of marketing with respect to such Rule 144A
      offering, it shall give Institutional Investor written notice of its intention
      (including, in the case of a registered public offering and to the extent
      possible, a copy of the prospectus included in the registration statement filed
      in respect of such offering) describing, to the extent then known, the
      anticipated amount of securities, range of prices, timing and other material
      terms of such offering.  Institutional Investor shall have ten (10)
      calendar days from the date of receipt of any such notice

     


    
      
        
        

      

      
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    to
      notify
      the Company in writing that it and/or its Affiliates intend to exercise such
      preemptive purchase rights and as to the amount of New Stock Institutional
      Investor and its Affiliates desire to purchase, up to the maximum amount
      calculated pursuant to Section 3.1 (including any over-allotment options if
      applicable) (the “Designated Stock”).  Such notice
      shall constitute a non-binding indication of interest of Institutional Investor
      and its Affiliates to purchase the Designated Stock so specified at the range
      of
      prices and other terms set forth in the Company’s notice to it.  The
      failure to respond during such ten (10) calendar day period shall constitute
      a
      waiver of preemptive rights in respect of such offering.

     

    (b)           If
      the Company proposes to make a Qualified Equity Offering that is not an
      underwritten public offering or Rule 144A offering (a “Private
      Placement”), the Company shall give Institutional Investor written
      notice of its intention, describing, to the extent then known, the anticipated
      amount of securities, price and other material terms upon which the Company
      proposes to offer the same.  Institutional Investor shall have ten
      (10) calendar days from the date of receipt of the notice required by the
      immediately preceding sentence to notify the Company in writing that it and/or
      its Affiliates intend to exercise such preemptive purchase rights and as to
      the
      amount of Designated Stock Institutional Investor and its Affiliates desire
      to
      purchase, up to the maximum amount calculated pursuant to
      Section 3.1.  Such notice shall constitute the binding agreement
      of Institutional Investor and/or its Affiliates to purchase the amount of
      Designated Stock so specified (or a proportionately lesser amount if the amount
      of New Stock to be offered in such Private Placement is subsequently reduced)
      upon the price and other terms set forth in the Company’s notice to
      it.  The failure of Institutional Investor to respond during the ten
      (10) calendar day period referred to in the second preceding sentence shall
      constitute a waiver of the preemptive rights in respect of such
      offering.

     

    3.3           Purchase
      Mechanism.

     

    (a)           If
      Institutional Investor exercises its preemptive rights provided in
      Section 3.2(b), the closing of the purchase of the New Stock with respect
      to which such right has been exercised shall be conditioned on the consummation
      of the Private Placement giving rise to such preemptive purchase rights and
      shall take place simultaneously with the closing of the Private Placement or
      on
      such other date as the Company and the Institutional Investor shall agree in
      writing; provided, that the actual amount of Designated Stock to be sold to
      the
      Institutional Investor and its Affiliates pursuant to its exercise of preemptive
      rights hereunder shall be reduced proportionately if the aggregate amount of
      New
      Stock sold in the Private Placement is reduced and, at the option of the
      Institutional Investor (to be exercised by delivery of written notice to the
      Company within five (5) business days of receipt of notice of such increase),
      shall be increased proportionately if such aggregate amount of New Stock sold
      in
      the Private Placement is increased.  In connection with its purchase
      of Designated Stock, Institutional Investor shall execute an instrument in
      form
      and substance reasonably satisfactory to the Company containing representations,
      warranties and agreements of Institutional Investor that are customary for
      private placement transactions.

     

    (b)           If
      the Institutional Investor exercises its preemptive purchase rights provided
      in
      Section 3.2(a), the Company shall offer the Institutional Investor and its
      Affiliates, if such underwritten public offering or Rule 144A offering is
      consummated, the Designated Stock (as adjusted to reflect the actual size of
      such offering when priced) at the same price as the New

     


    
      
        
        

      

      
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    Stock
      is
      offered to the underwriters or initial purchasers and shall provide written
      notice of such price to Institutional Investor as soon as practicable prior
      to
      such consummation.  Contemporaneously with the execution of any
      underwriting agreement or purchase agreement entered into between the Company
      and the underwriters or initial purchasers of such underwritten public offering
      or Rule 144A offering, Institutional Investor shall enter into an
      instrument in form and substance reasonably satisfactory to the Company
      acknowledging Institutional Investor’s and/or its Affiliate’s binding
      obligations to purchase the Designated Stock to be acquired by it and/or its
      Affiliates and containing representations, warranties and agreements of
      Institutional Investor that are customary in private placement transactions,
      and
      the failure to enter into such an instrument at or prior to such time shall
      constitute a waiver of preemptive rights in respect of such
      offering.  Any offers and sales pursuant to this Section 3 in the
      context of a registered public offering shall be also conditioned on reasonably
      acceptable representations and warranties of the Institutional Investor
      regarding its status as the type of offeree to whom a private sale can be made
      concurrently with a registered offering in compliance with applicable securities
      laws.

     

    (c)           Upon
      the expiration of the offering periods described in Section 3.2 above, the
      Company shall be entitled to sell such stock or securities which the
      Institutional Investor and its Affiliates have not elected to purchase during
      the 90 days following such expiration at a price not less and on other
      terms and conditions not more favorable to the purchasers thereof than that
      offered to the Institutional Investor and its Affiliates.  Any stock
      or securities offered or sold by the Company after such 90-day period must
      be
      reoffered to the Institutional Investor and its Affiliates pursuant to the
      terms
      of this Section 3.2.

     

    (d)           Notwithstanding
      any provision in this Agreement to the contrary, in the event that the
      Institutional Purchaser and its Affiliates are entitled to acquire Common Stock
      pursuant to this Section 3, then the Institutional Purchaser and its
      Affiliates may at their option acquire securities in the form of Series A Stock
      or another series of preferred stock of the Corporation with terms, conditions
      and provisions that shall be established upon the issuance of such preferred
      stock that are similar to and consistent with the terms, conditions and
      provisions upon which the Series A Stock was established.

     

    3.4           No
      Negotiation Right.  The Institutional Investor shall not have any
      rights to participate in the negotiation of the proposed terms of any Private
      Placement, underwritten public offering or Rule 144A offering.

     

    3.5           Cooperation.  The
      Company and the Institutional Investor shall cooperate in good faith to
      facilitate the exercise of the Institutional Investor’s preemptive rights
      hereunder, including securing any required approvals or consents, in a manner
      that does not jeopardize the timing, marketing, pricing or execution of any
      offering of the Company’s securities.

     

    3.6           Limitation
      of Rights.  Notwithstanding the above, nothing set forth in this
      Section 3 shall confer upon the Institutional Investor the right to
      purchase any shares of any equity securities of the Company other than Common
      Stock, Series A Stock, preferred stock or other securities convertible into
      or exchangeable for shares of Common Stock or which have voting rights or
      participation features with Common Stock of the Company, and in no event shall
      the issuance of shares of Common Stock by the Company as consideration pursuant
      to any

     


    
      
        
        

      

      
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    acquisition
      (whether structured as a merger or otherwise) (but not an offering to raise
      capital to fund an acquisition) or pursuant to the terms and provisions of
      any
      current or future equity compensation or employee benefit plan of the Company
      or
      otherwise approved by the Board other than through a Qualified Equity Offering
      be deemed included in any right granted to Institutional Investor under this
      Section 3.

     

    SECTION 4          MISCELLANEOUS

     

    4.1           Successors
      and Assigns.  Except as otherwise provided herein, the terms and
      conditions of this Agreement shall inure to the benefit of and be binding upon
      the respective successors and assigns of the parties (including transferees
      of
      any shares of Registrable Securities).  Nothing in this Agreement,
      express or implied, is intended to confer upon any party other than the parties
      hereto or their respective successors and assigns any rights, remedies,
      obligations, or liabilities under or by reason of this Agreement, except as
      expressly provided in this Agreement.

     

    4.2           Governing
      Law.  This Agreement shall be governed by and construed under the
      laws of the State of Illinois as applied to agreements among Illinois residents
      entered into and to be performed entirely within the State of
      Illinois.

     

    4.3           Counterparts.  This
      Agreement may be executed in two or more counterparts, each of which shall
      be
      deemed an original, but all of which together shall constitute one and the
      same
      instrument.

     

    4.4           Titles
      and Subtitles.  The titles and subtitles used in this Agreement
      are used for convenience only and are not to be considered in construing or
      interpreting this Agreement.

     

    4.5           Notices.  Unless
      otherwise provided, any notice required or permitted under this Agreement shall
      be given in writing and shall be deemed effectively given upon personal delivery
      to the party to be notified or upon deposit with the United States Post Office,
      by registered or certified mail, postage prepaid and addressed to the party
      to
      be notified at the address indicated for such party on the signature page
      hereof, or at such other address as such party may designate by ten (10) days’
advance written notice to the other parties.

     

    4.6           Expenses.  If
      any action at law or in equity is necessary to enforce or interpret the terms
      of
      this Agreement, the prevailing party shall be entitled to reasonable attorneys’
fees, costs and necessary disbursements in addition to any other relief to
      which
      such party may be entitled.

     

    4.7           Amendments
      and Waivers.  Any term of this Agreement may be amended and the
      observance of any term of this Agreement may be waived (either generally or
      in a
      particular instance and either retroactively or prospectively), only with the
      written consent of the Company, the Institutional Investor so long as the
      Institutional Investor holds Registrable Securities, and the holders of a
      majority of the Registrable Securities then outstanding.  Any
      amendment or waiver effected in accordance with this paragraph shall be binding
      upon each Holder of any Registrable Securities then outstanding, each future
      Holder of all such Registrable Securities, and the Company.

     


    
      
        
        

      

      
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    4.8           Severability.  If
      one or more provisions of this Agreement are held to be unenforceable under
      applicable law, such provision shall be excluded from this Agreement and the
      balance of the Agreement shall be interpreted as if such provision were so
      excluded and shall be enforceable in accordance with its terms.

     

    4.9           Aggregation
      of Stock.  All shares of Registrable Securities held or acquired
      by any Investors which are Affiliates shall be aggregated together for the
      purpose of determining the availability of any rights under this
      Agreement.

     

    4.10           Entire
      Agreement.  This Agreement constitutes the full and entire
      understanding and agreement between the parties with regard to the subject
      matter hereof.

     

    


     

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    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of
      the date set forth in the first paragraph hereof.

     

    
       

      
        
          
            	 	
                    
                       
                        PRIVATEBANCORP, INC.

                       

                    

                     

                  


          

          
            
              	 	 By:	 


            

          

          
            
              	
                    	Name:	 Larry D. Richman
	 	Title:	
                       President
                        and Chief Executive
                        Officer

                       

                    
	 	 Address: 	
                       70
                        West Madison Street

                       Suite 900

                      
                         Chicago,
                          Illinois  60602

                        
                           Attention:  General
                            Counsel

                        

                      

                    


              
                 

              

            

          

        

      

    

    
      	 	
              
                
                   
                    [Individually List each Investor]

                

                 

              

               

            


    

    
      	 	 By:	 


    

    
      	
            	Name:	 
	 	Title:	
               

               

            
	 	 Address: 	
               

            





    
      
        
        

      

      
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