As filed with the Securities and Exchange Commission on August 15, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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PRIVATEBANCORP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3681151
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
TEN NORTH DEARBORN STREET
CHICAGO, ILLINOIS 60602
(Address, including zip code of registrant's principal executive office)
----------------
PRIVATEBANCORP, INC.
AMENDED AND RESTATED STOCK INCENTIVE PLAN
PRIVATEBANK AND TRUST COMPANY
SAVINGS AND RETIREMENT PLAN
(Full title of the plans)
---------------
DONALD A. ROUBITCHEK
PRIVATEBANCORP, INC.
TEN NORTH DEARBORN STREET
CHICAGO, ILLINOIS 60602
(312) 683-7100
(Name, address and telephone number, including area code, of agent for service)
Copies to:
JENNIFER R. EVANS, ESQ.
MARY C. WAGHORNE, ESQ.
VEDDER, PRICE, KAUFMAN & KAMMHOLZ
222 NORTH LASALLE STREET
CHICAGO, ILLINOIS 60601
(312) 609-7500
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CALCULATION OF REGISTRATION FEE
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TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE
--------------------------------------------------------------------------------
Common Stock,
without par
value(2) 225,000 14.50 $3,262,500 $861(3)
--------------------------------------------------------------------------------
Common Stock,
without par
value(4)(5) 100,000 14.50 $1,450,000 $383
================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) based on the average high and low sales prices
for the Common Stock reported on the Nasdaq National Market(sm) on August
14, 2000 ($14.50).
(2) Reflects shares that may be issued pursuant to the PrivateBancorp, Inc.
Amended and Restated Stock Incentive Plan.
(3) An aggregate of 587,007 shares (as adjusted to reflect all stock splits and
dividends to date) are being carried forward from those shares of the
PrivateBancorp, Inc. Amended and Restated Stock Incentive Plan (the "Stock
Incentive Plan") previously registered by Registration Statement on Form
S-8 (File No. 333-88289). A registration fee of $2,065.34 was paid with
respect to the Plan shares registered in that filing. Such previously
registered shares being carried forward, together with the shares being
registered hereby, represent the total number of shares reserved for
issuance under the Plan.
(4) Reflects shares that may be issued pursuant to the PrivateBank and Trust
Company Savings and Retirement Plan (the "Retirement Plan").
(5) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Retirement Plan described herein.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement relates to two forms of prospectuses. The
Registration Statement relates to the registration of 225,000 additional shares
of Common Stock of PrivateBancorp, Inc. (the "Registrant") reserved for issuance
and delivery under the PrivateBancorp, Inc. Amended and Restated Stock Incentive
Plan (the "Stock Incentive Plan"). The increase in the number of shares
authorized to be issued under the Stock Incentive Plan was approved by the
Registrant's stockholders on May 25, 2000. Pursuant to the Form S-8 Registration
Statement filed by the Registrant on October 1, 1999, the Registrant has
previously registered an aggregate of 587,007 shares of Common Stock (as
adjusted to reflect all stock splits and stock dividends to date). The
contents of that Form S-8 Registration Statement (File No. 333-88289) are
incorporated herein by reference pursuant to General Instruction E to Form S-8.
With respect to the PrivateBank and Trust Company Savings and Retirement
Plan (the "Retirement Plan," and together with the Stock Incentive Plan, the
"Plans"), this Registration Statement also relates to the registration of
100,000 shares of Common Stock of the Registrant reserved for issuance and
delivery.
The documents containing the information required by this section (which,
with respect to the Stock Incentive Plan, also relate to the shares remaining
available which were previously registered under the above-referenced
Registration Statement) will be given to those persons who participate in the
Plans, all of whom are employees or directors of PrivateBancorp, Inc. Such
documents are not required to be filed with the Securities and Exchange
Commission (the "Commission") as a part of this Registration Statement or as an
Exhibit.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by the Registrant, a
Delaware corporation, are incorporated in this Registration Statement by
reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1999;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 2000;
(c) Current Reports on Form 8-K dated January 31, 2000, February 11, 2000
(as amended by Form 8-K/A filed with the Commission on April 26,
2000), April 24, 2000 and July 24, 2000; and
(d) The description of Registrant's Common Stock contained in the
Registration Statement on Form 8-A, dated April 27, 1999 (File No.
0-25887).
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold are
incorporated by reference in this Registration Statement and are a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law grants each corporation
organized thereunder the powers to indemnify any individual made party or
threatened to be made party to any threatened, pending or completed action, suit
or proceeding because the individual is or was a director, officer, employee or
agent of the corporation, against actual and reasonable expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement incurred with
respect to an action, suit or proceeding if the individual acted in good faith,
and the individual reasonably believed: (a) that the individual's conduct was in
the corporation's best interests; (b) that the individual's conduct was at least
not opposed to the corporation's best interests; and (c) in the case of any
criminal proceeding, that the individual had no reasonable cause to believe the
individual's conduct was unlawful. However, there will be limited or no
indemnification for directors, officers, employees or agents adjudged to be
liable to the corporation where such individuals are parties to any action by or
in the right of the corporation.
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<PAGE>
Article Ninth of the Registrant's Restated Certificate of Incorporation
provides as follows:
NINTH: The Corporation shall indemnify, to the full extent that it shall
have power under applicable law to do so and in a manner permitted by such law,
any person made or threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation against liabilities and expenses reasonably incurred or paid by
such person in connection with such action, suit or proceeding. The Corporation
may indemnify, to the full extent that it shall have power under applicable law
to do so and in a manner permitted by such law, any person made or threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was an employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against liabilities and expenses reasonably incurred or paid by such
person in connection with such action, suit or proceeding. The words
"liabilities" and "expenses" shall include, without limitation: liabilities,
losses, damages, judgments, fines, penalties, amounts paid in settlement,
expenses, attorneys' fees and costs. The indemnification provided by this
Article NINTH shall not be deemed exclusive of any other rights to which any
person indemnified may be entitled under any statute, by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be such director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
The Corporation may purchase and maintain insurance on behalf of any person
referred to in the preceding paragraph against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article NINTH or otherwise.
For purposes of this Article NINTH, references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
The provisions of this Article NINTH shall be deemed to be a contract
between the Corporation and each director or officer who serves in any such
capacity at any time while this Article and the relevant provisions of the
General Corporation Law of the State of Delaware or other applicable law, if
any, are in effect, and any repeal or modification of any such law or of this
Article shall not affect any rights or obligations then existing with respect to
any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based in whole or in
part upon any such state of facts.
For purposes of this Article NINTH, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner not
opposed to the best interests of the Corporation.
Article XI of the Amended and Restated By-laws of the Company provides as
follows:
Section 11.1 Third-Party Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, including all appeals (other than an
action by or in the right of the Corporation)
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<PAGE>
by reason of the fact that the person is or was a director, officer, employee,
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, trustee, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses, including attorneys' fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him or her in connection with the
action, suit, or proceeding; if the person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit, or proceeding by judgment, order, settlement, conviction, or
on a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner that he or
she reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
Section 11.2 Derivative Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit, including all appeals, by or
in the right of the Corporation to procure a judgment in its favor by reason of
the fact that the person is or was a director, officer, employee, or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses,
including attorneys' fees, actually and reasonably incurred by the person in
connection with the defense or settlement of the action or suit, if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation. However, no
indemnification shall be made in respect of any claim, issue, or matter as to
which the person is adjudged to be liable for negligence or misconduct in the
performance of his or her duty to the Corporation unless and only to the extent
that the court of common pleas or the court in which the action or suit was
brought determines on application that, despite the adjudication of liability
but in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for expenses that the court of common pleas or
other court shall deem proper.
Section 11.3 Rights After Successful Defense. To the extent that a
director, trustee, officer, employee, or agent has been successful on the merits
or otherwise in defense of any action, suit, or proceeding referred to in
Section 11.1 or 11.2, above, or in defense of any claim, issue, or matter in
that action, suit, or proceeding, he or she shall be indemnified against
expenses, including attorneys' fees, actually and reasonably incurred by him or
her in connection with the action, suit, or proceeding.
Section 11.4 Other Determination of Rights. Unless ordered by a court,
any indemnification made under Section 11.1 or 11.2, above, shall be made by the
Corporation only as authorized in the specific case on a determination that
indemnification of the director, trustee, officer, employee, or agent is proper
in the circumstances because he or she has met the applicable standard of
conduct set forth in Section 11.1 or 11.2, above. The determination shall be
made (a) by a majority vote of a quorum consisting of directors who were not and
are not parties to or threatened with the action, suit, or proceeding; (b) if
the described quorum is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion; (c) by the stockholders; or (d) by the court in which the action, suit,
or proceeding was brought.
Section 11.5 Advances of Expenses. Expenses of each person seeking
indemnification under Section 11.1 or 11.2, above, may be paid by the
Corporation as they are incurred, in advance of the final disposition of the
action, suit, or proceeding, as authorized by the Board of Directors in the
specific case, on receipt of an undertaking by or on behalf of the director,
trustee, officer, employee, or agent to repay the amount if it is ultimately
determined that he or she is not entitled to be indemnified by the Corporation.
Section 11.6 Nonexclusiveness; Heirs. The indemnification provided by
this Article shall not be deemed exclusive of, and shall be in addition to, any
other rights to which those seeking indemnification may be entitled as a matter
of law or under the Certificate of Incorporation, these By-Laws, any agreement,
vote of stockholders, any insurance purchased by the Corporation, or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding that office, and shall continue as to a person who has
ceased to be a director, trustee, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of that person.
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<PAGE>
The effect of the foregoing provisions of the Delaware General Corporation
Law, the Company's Restated Certificate of Incorporation and Amended and
Restated By-Laws would be to permit such indemnification of officers and
directors by the Company for liabilities arising under the Securities Act of
1933.
The Company has purchased $10 million of insurance policies which insure
the Company's directors and officers against liability which they may incur as a
result of actions taken in such capacities. In addition, the Company maintains
trust errors and omissions coverage up to a limit of $10 million.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of PrivateBancorp,
Inc. (incorporated by reference to Exhibit 3.1 to Amendment No. 1 to
Registrant's Form S-1 Registration Statement No. 333-77147).
4.2 Amended and Restated By-Laws of PrivateBancorp, Inc. (incorporated by
reference to Exhibit 3.3 to Registrant's Form S-1 Registration
Statement No. 333-77147).
4.3 PrivateBancorp, Inc. Amended and Restated Stock Incentive Plan
(incorporated by reference to Appendix A to Registrant's Proxy
Statement filed with the Commission on April 14, 2000).
5.1 Opinion of Vedder, Price, Kaufman & Kammholz regarding the legality of
the Common Stock, without par value, to be issued in connection with
an award of restricted stock or upon exercise of options issued under
the Plan.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Vedder, Price, Kaufman & Kammholz (included in Exhibit
5.1).
24.1 Powers of Attorney (included on the signature pages of the
Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(i) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information set forth
in the Registration Statement.
(ii) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(iii) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein,
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<PAGE>
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against policy as expressed in the Act and will be governed by
the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on this 15th day of
August, 2000.
PrivateBancorp, Inc.
By: /s/Ralph B. Mandell
------------------------------------
Ralph B. Mandell
Chairman, President, Chief Executive
Officer and Director
We, the undersigned officers and directors of PrivateBancorp, Inc., and
each of us, do hereby constitute and appoint each and any of Ralph B. Mandell
and Donald A. Roubitchek our true and lawful attorney and agent, with full power
of substitution and resubstitution, to do any and all acts and things in our
names and behalf in any and all capacities and to execute any and all
instruments for us in our names in any and all capacities, which attorney and
agent may deem necessary or advisable to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically, but without limitation, power
and authority to sign for us or any of us in our names in the capacities
indicated below, any and all amendments (including post-effective amendments)
hereto; and we do hereby ratify and confirm all that said attorney and agent, or
his substitute, shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on the 15th day of August, 2000.
Name Title
---- -----
/s/Ralph B. Mandell Chairman, President, Chief Executive
--------------------------------------- Officer and Director
Ralph B. Mandell
/s/Caren L. Reed Vice Chairman and Director
---------------------------------------
Caren L. Reed
/s/Donald A. Roubitchek Chief Financial Officer and Director
---------------------------------------
Donald A. Roubitchek
/s/Lisa M. O'Neill Controller
--------------------------------------- (principal accounting officer)
Lisa M. O'Neill
/s/Donald L. Beal Director
---------------------------------------
Donald L. Beal
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<PAGE>
Name Title
---- -----
/s/Naomi T. Borwell Director
---------------------------------------
Naomi T. Borwell
/s/William A. Castellano Director
---------------------------------------
William A. Castellano
/s/Robert F. Coleman Director
---------------------------------------
Robert F. Coleman
/s/John E. Gorman Director
---------------------------------------
John E. Gorman
/s/Alvin J. Gottlieb Director
---------------------------------------
Alvin J. Gottlieb
/s/James M. Guyette Director
---------------------------------------
James M. Guyette
/s/Richard C. Jensen Director
---------------------------------------
Richard C. Jensen
/s/Philip M. Kayman Director
---------------------------------------
Philip M. Kayman
/s/William R. Langley Director
---------------------------------------
William R. Langley
/s/Thomas F. Meagher Director
---------------------------------------
Thomas F. Meagher
/s/William J. Podl Director
---------------------------------------
William J. Podl
/s/Michael B. Susman Director
---------------------------------------
Michael B. Susman
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the trustees
have duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Chicago, state of
Illinois, on August 15, 2000.
The PrivateBank and Trust Company
Savings and Retirement Plan
By: /s/Ralph B. Mandell
-------------------------------------
Ralph B. Mandell
Trustee
By: /s/Donald A. Roubitchek
-------------------------------------
Donald A. Roubitchek
Trustee
By: /s/Jeanene V. Meisser
-------------------------------------
Jeanene V. Meisser
Trustee
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<PAGE>
INDEX TO EXHIBITS
4.1 Amended and Restated Certificate of Incorporation of PrivateBancorp,
Inc. (incorporated by reference to Exhibit 3.1 to Amendment No. 1 to
Registrant's Form S-1 Registration Statement No. 333-77147).
4.2 Amended and Restated By-Laws of PrivateBancorp, Inc. (incorporated by
reference to Exhibit 3.3 to Registrant's Form S-1 Registration
Statement No. 333-77147).
4.3 PrivateBancorp, Inc. Amended and Restated Stock Incentive Plan
(incorporated by reference to Appendix A to Registrant's Proxy
Statement filed with the Commission on April 14, 2000).
5.1 Opinion of Vedder, Price, Kaufman & Kammholz regarding the legality of
the Common Stock, without par value, to be issued in connection with
an award of restricted stock or upon exercise of options issued under
the Plan.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Vedder, Price, Kaufman & Kammholz (included in Exhibit
5.1).
24.1 Powers of Attorney (included on the signature pages of the
Registration Statement).
10
