Item
3.02
Unregistered
Sales of Equity Securities.
As
previously announced, the shares of Thomas Weisel Partners common stock and
exchangeable shares issued to shareholders of Westwind in connection with the
plan of arrangement referred to in Item 2.01 above were issued in reliance
upon
an exemption from registration provided by Section 3(a)(10) of the Securities
Act of 1933, as amended (the “Securities Act”), for the issuance and exchange of
securities approved after a public hearing upon the fairness and conditions
of
the exchange.
The
share
of Thomas Weisel Partners special voting preferred stock was issued to the
trustee under the voting and exchange trust agreement in exchange for $0.01
in a
transaction exemption from registration provided by Section 4(2) of the
Securities Act.
Item 5.02
Appointment
of Certain Officers; Compensatory Arrangements of Certain
Officers.
(c)
Effective January 2, 2008 and in connection with the terms of the Arrangement
Agreement and the completion of the acquisition of Westwind by Thomas Weisel
Partners, Lionel F. Conacher has been named as President of Thomas Weisel
Partners and will serve on the Executive Committee of Thomas Weisel Partners.
Mr.
Conacher, age 45, has been an officer of Westwind since 2002, first as a
Managing Director and then as the Chief Executive Officer and President, and
holds a bachelor’s degree from Dartmouth College in Economics and Art History.
Prior to his employment by Westwind, Mr. Conacher held positions with Citigroup,
Brookfield Asset Management and National Bank Financial. As a shareholder of
Westwind, under the Arrangement Agreement Mr. Conacher will receive from Thomas
Weisel Partners as consideration for his shares of Westwind approximately US$5.8
million in cash and 1,523,723 shares of common stock of Thomas Weisel Partners
and exchangeable shares of Canadian Sub. In addition, in accordance with the
terms of the Arrangement Agreement, Mr. Conacher is a party to the Westwind
Capital Corporation Shareholders’ Equity Agreement and a Pledge Agreement with
Thomas Weisel Partners, each of which is described in the Thomas Weisel
Partners’ Proxy Statement, dated November 7, 2007, previously filed with the
SEC. A copy of each of the Westwind Capital Corporation Shareholders’ Equity
Agreement and the form of Pledge Agreement are filed as Exhibits 10.1 and 10.2,
respectively, and are incorporated by reference herein.
Thomas
Weisel Partners has also entered into an employment agreement with Mr. Conacher
which provides for a transition period, which will last between 6 and 24 months,
during which Mr. Conacher will oversee the integration of Thomas Weisel Partners
and Westwind and will have responsibility for Thomas Weisel Partners’ Canadian
and European operations. Following the transition period, Mr. Conacher will
have
all of the duties, responsibilities and authority normally attendant to the
office of President.
Mr. Conacher
will be entitled to a base salary of $200,000, which may be increased (but
not
decreased) annually. Mr. Conacher also will be awarded an annual bonus to
be paid in a form consistent with the other members of the Executive Committee.
Any bonus that Mr. Conacher receives during the transition period described
above will be not less than $200,000 per month. Mr. Conacher will also be
entitled to participate in Thomas Weisel Partners equity incentive plans,
employee retirement and welfare benefit plans, among other benefits.
The
employment agreement also provides for certain payments and benefits in
connection with any termination of Mr. Conacher’s employment. Under the
agreement, Mr. Conacher will be employed for an initial employment term
(ending on December 31, 2009) and, in the absence of a termination of
Mr. Conacher’s employment, for subsequent two-year employment terms
thereafter. Either Thomas Weisel Partners or Mr. Conacher may terminate his
employment at any time for any reason, or for no reason, subject to
90 days’ advance written notice in most cases.
If
Mr. Conacher’s employment is terminated by Thomas Weisel Partners without
“Cause” or by Mr. Conacher for “Good Reason” (each as defined in his
employment agreement), Mr. Conacher will be entitled to receive a lump sum
payment equal to the sum of the following amounts:
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two
years’ base salary;
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unpaid
base salary for periods prior to the date of termination, and payment
for
any accrued but unused vacation days, any unpaid expense reimbursements,
any unpaid but vested bonus and any other vested or accrued but unpaid
compensation and benefits; and
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a
bonus payment equal to the product of (A) the average of the bonuses
paid or payable to Mr. Conacher for the two fiscal years ending
before notice of termination is given and (B) a multiplier equal to
(i) if the termination notice occurs on or prior to December 31,
2009, two and (ii) if the termination notice occurs on or after
January 1, 2010, a fraction, the numerator of which is equal to the
number of days remaining under his current employment term (but in
no
event less than 365) and the denominator of which is 365. In
calculating Mr. Conacher’s historic bonus, his bonus for 2006 and
2007 will be deemed to be $1,500,000 and $3,000,000, respectively.
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Payment
by Thomas Weisel Partners of the above amounts generally would be subject to
the
condition that Mr. Conacher execute and deliver to Thomas Weisel Partners a
release of claims that would release Thomas Weisel Partners, its affiliates,
and
each of its members (and any of their respective past or present officers,
directors, employees or agents) from any and all liabilities to
Mr. Conacher.
In
addition, if Mr. Conacher’s employment is terminated by Thomas Weisel
Partners without “Cause” or by Mr. Conacher for “Good Reason”,
Mr. Conacher would be entitled to (i) full vesting and immediate
payment of all outstanding stock options, restricted stock, restricted stock
units and other equity-based awards, with stock options remaining exercisable
for a period of 12 months after the end of his employment (or, if earlier,
until they would have expired but for his termination), and (ii) continued
participation for himself, his spouse and his dependents in Thomas Weisel
Partners employee benefit and welfare plans for 24 months following the
date of termination (or, to the extent not permitted, payments outside such
plans with the same after-tax effect).
If
Mr. Conacher’s employment is terminated by Thomas Weisel Partners for
“Cause” or by Mr. Conacher without “Good Reason” or if his employment
terminates as a result of his death or disability, Mr. Conacher will be
entitled to receive his unpaid base salary for periods prior to the date of
termination, and payment for any accrued but unused vacation days, any unpaid
expense reimbursements, any unpaid but vested bonus and any other vested or
accrued but unpaid compensation and benefits.
The
description of Mr. Conacher’s employment agreement above is qualified in its
entirety by reference to the Employment Agreement of Lionel F. Conacher, a
copy
of which is filed as Exhibit 10.3 and is incorporated by reference
herein.