UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a)
of
the Securities Exchange Act of 1934
(Amendment
No. )
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Filed
by the Registrant
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x
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Filed
by a Party other than the Registrant
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o
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Check the
appropriate box:
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x
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Preliminary
Proxy Statement
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Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
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Definitive
Proxy Statement
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Definitive
Additional Materials
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Soliciting
Material Pursuant to Section
240.14a-12
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Thomas
Weisel Partners Group, Inc.
(Name of
Registrant as Specified In Its Charter)
(Name of
Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
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o
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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(2)
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Aggregate
number of securities to which transaction applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was
determined):
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(4)
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Proposed
maximum aggregate value of
transaction:
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o
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Fee
paid previously with preliminary
materials.
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o
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Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its
filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement
No.:
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(3)
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Filing
Party:
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(4)
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Date
Filed:
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Thomas
Weisel Partners Group, Inc.
One
Montgomery Street
San
Francisco, California 94104
January
5, 2009
Dear
Shareholder:
You are
cordially invited to attend a Special Meeting of Shareholders of Thomas Weisel
Partners Group, Inc. which will be held on Monday, February 9, 2009, at 8:00
a.m., Pacific time. The meeting will take place at our corporate headquarters at
One Montgomery Street, 35
th
Floor,
San Francisco, California 94104. At the meeting, we will:
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(1)
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Vote
on a proposal to amend the Thomas Weisel Partners Group, Inc. Equity
Incentive Plan.
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(2)
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Conduct
any other business that properly comes before the
meeting.
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All
holders of record of common stock and special voting preferred stock of Thomas
Weisel Partners Group, Inc. as of January 2, 2009 will be entitled to vote at
the Special Meeting of Shareholders.
Enclosed
are the following for your review:
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Notice
of Special Meeting of Shareholders and Proxy
Statement
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Proxy
Card or Voting Instruction Card (and return
envelope)
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Your vote
is very important to us and your shares should be represented and voted, whether
or not you plan to personally attend the Special Meeting.
Sincerely,
Thomas W.
Weisel
Chairman
and Chief Executive Officer
YOUR VOTE
IS IMPORTANT.
PLEASE
PROMPTLY SUBMIT YOUR PROXY BY TELEPHONE, INTERNET OR MAIL.
This
proxy statement and accompanying proxy card are first being distributed on or
about January 9, 2009.
Thomas
Weisel Partners Group, Inc.
One
Montgomery Street
San
Francisco, California 94104
_________
NOTICE
OF SPECIAL MEETING OF SHAREHOLDERS
_________
Time
& Date:
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February
9, 2009, at 8:00 a.m., Pacific time
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Location:
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One
Montgomery Street, 35
th
Floor, San Francisco, California
(enter
at 120 Kearny Street)
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Items
of Business:
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·
Vote
on a proposal to amend the Thomas Weisel Partners Group, Inc. Equity
Incentive Plan
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·
Conduct
any other business that properly comes before the
meeting
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Record
Date for Voting:
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January
2, 2009
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Inspection
of List of Shareholders of Record:
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A
list of the shareholders of record as of January 2, 2009 will be available
for inspection during ordinary business hours at the office of our General
Counsel and Secretary, One Montgomery Street, 37
th
Floor, San Francisco, California 94104, from January 26, 2009 to February
9, 2009, as well as at the Special
Meeting.
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Holders
of
Exchangeable
Shares:
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If
you hold Exchangeable Shares in TWP Acquisition Company (Canada), Inc. and
you wish to direct the Trustee to cast the votes represented by your
Exchangeable Shares attached to the Special Voting Preferred Stock, you
should follow carefully the voting instructions that are included in the
Notice to Exchangeable Shareholders that accompanies this Proxy Statement.
The procedure for instructing the Trustee differs in certain respects from
the procedure for delivering a proxy, including the place for depositing
the instruction and the manner of revoking the
instruction.
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Additional
Information:
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Additional
information regarding the matters to be acted on at the Special Meeting is
included in the accompanying Proxy
Statement.
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By Order
of the Board of Directors,
Mark P.
Fisher
Secretary
January
5, 2009
TABLE
OF CONTENTS
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A-1
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Thomas
Weisel Partners Group, Inc.
One
Montgomery Street
San
Francisco, California 94104
PROXY
STATEMENT
_________
SPECIAL
MEETING OF SHAREHOLDERS
February
9, 2009
_________
INTRODUCTION
This
Proxy Statement is furnished in connection with a solicitation of proxies by the
Board of Directors of Thomas Weisel Partners Group, Inc., a Delaware corporation
(which we refer to as “Thomas Weisel Partners,” the “Company,” the “firm,” “we,”
“our” or “us” and when so referring include, as applicable, our predecessor
limited liability company), to be used at our Special Meeting of Shareholders on
Monday, February 9, 2009, at 8:00 a.m., Pacific time, and at any adjournments or
postponements of the Special Meeting. The approximate date on which this Proxy
Statement and the accompanying proxy materials are first being mailed to
shareholders is January 9, 2009.
Holders
of our common stock, par value $0.01 per share, as of the close of business on
January 2, 2009, will be entitled to vote at the Special Meeting. Each share of
common stock is entitled to one vote for each matter to be voted on and a
majority of shares will constitute a quorum at the Special Meeting. In addition,
we have issued one share of Special Voting Preferred Stock, par value $0.01 per
share, through which the holders of exchangeable shares issued by TWP
Acquisition Company (Canada), Inc., a Canadian corporation (the “Exchangeable
Shares”) and our indirect subsidiary, may exercise voting rights. The
Exchangeable Shares were issued in connection with our acquisition of Westwind
Capital Corporation in January 2008 (“Westwind”). The Special Voting Preferred
Stock provides a mechanism for holders of Exchangeable Shares, which are
intended to be substantially the voting equivalent of our common stock, to vote
with our common stock. The share of Special Voting Preferred Stock is entitled
to one vote for each Exchangeable Share, excluding shares held by Thomas Weisel
Partners or any person directly or indirectly controlled by or under common
control with Thomas Weisel Partners, on all matters on which our common stock is
entitled to vote. CIBC Mellon Trust Company, the trustee holder of the Special
Voting Preferred Stock, has the right to cast a number of votes equal to the
number of then-outstanding Exchangeable Shares, but will only cast a number of
votes equal to the number of Exchangeable Shares as to which it has received a
voting instruction card from the owners of record of the Exchangeable Shares
(other than Thomas Weisel Partners and any person directly or indirectly
controlled by or under common control with Thomas Weisel Partners), on the
relevant record date.
On
January 2, 2008, there
were shares
of our common stock outstanding held by
approximately stockholders
of record and one share of Special Voting Preferred Stock held by the Trustee
(representing Exchangeable
Shares entitled to give voting instructions and therefore entitled
to votes).
Proxy
cards are enclosed for holders of our common stock and voting instruction cards
are enclosed for holders of Exchangeable Shares.
We do not
have cumulative voting, and there are no appraisal or dissenters’ rights
associated with any of the matters we have scheduled for a vote at the Special
Meeting.
INFORMATION ABOUT THE SPECIAL MEETING
Information for Holders of Common Stock
You can
vote your shares by marking, signing and returning the enclosed proxy card, or
you can vote through the Internet or by telephone. If you properly submit your
proxy by any of these methods and you do not subsequently revoke your proxy,
your shares will be voted in accordance with your instructions.
If you
sign your proxy card but do not mark it to give voting instructions, your shares
will be voted as follows:
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FOR
the proposal to amend the Thomas Weisel Partners Group, Inc. Equity
Incentive Plan; and
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otherwise
in accordance with the judgment of the persons voting the proxy on any other
matter properly brought before the Special Meeting and any adjournment or
postponement thereof.
A proxy
submitted through the Internet or by telephone may be revoked by (i) executing a
later-dated proxy card that is received prior to 11:59 p.m., New York City time,
on February 6, 2009, (ii) subsequently submitting a new proxy through the
Internet or by telephone prior to 11:59 p.m., New York City time, on February 6,
2009 or (iii) attending the Special Meeting and voting in person. A proxy
submitted by proxy card may be revoked before the vote is cast by the designated
proxy by (i) giving written notice to our Secretary and General Counsel at One
Montgomery Street, 37th Floor, San Francisco, California 94104, (ii)
subsequently submitting another proxy bearing a later date or (iii) attending
the Special Meeting and voting in person. Attending the Special Meeting without
voting will not revoke your previously submitted proxy.
If you
hold shares in “street name” (that is, through a bank, broker or other nominee)
and would like to attend the Special Meeting, you will need to bring an account
statement or other acceptable evidence of ownership of our common stock as of
the close of business on January 2, 2009, the record date for voting. If you
hold shares in “street name,” then in order to vote at the Special Meeting you
will also need to bring a valid “legal proxy,” which you can obtain by
contacting your account representative at the bank, broker or nominee through
which you hold your shares.
Information for Holders of Exchangeable
Shares
Instructions
for voting and revocation of voting instructions, as well as instructions for
attending the meeting if you hold Exchangeable Shares, are included in the
Notice to Exchangeable Shareholders that is being provided to holders of
Exchangeable Shares along with this Proxy Statement.
Quorum Requirements
The
holders of shares entitled to cast a majority of the total votes of the
outstanding shares of stock on January 2, 2009, present in person or represented
by proxy and entitled to vote, will constitute a quorum for the transaction of
business at the Special Meeting. Withheld votes, abstentions and “broker
non-votes” are treated as present for quorum purposes.
Voting Requirements
Proposal to Amend the Thomas Weisel
Partners Group, Inc. Equity Incentive Plan
. You may vote
“for,” “against” or “abstain” with respect to the proposal to amend the Thomas
Weisel Partners Group, Inc. Equity Incentive Plan. A majority of the votes cast
“for” or “against” the proposed amendment must be voted “for” the proposed
amendment for it to pass. An abstention is not treated as a vote “for” or
“against” and will have no effect on the outcome of the vote.
Broker Authority to Vote
Under the
rules of the New York Stock Exchange, Inc., member brokers that do not receive
instructions from their customers to vote do not have discretionary voting
authority to vote their customers’ shares at the Special Meeting because the
proposal to amend the Thomas Weisel Partners Group, Inc. Equity Incentive Plan
is not considered a routine matter.
Independent Election Inspector
We have
retained Broadridge Financial Solutions to receive and tabulate the votes in
connection with our Special Meeting. We have also retained through Broadridge
Financial Solutions, an independent election inspector. The independent election
inspector, currently expected to be Andrew M. Wilcox, will certify the election
results and perform any other acts required by the Delaware General Corporation
Law.
Expenses of Solicitation
We are
paying for costs associated with the preparation of proxy materials and
solicitation of proxies from our shareholders and voting instructions from
holders of Exchangeable Shares for the Special Meeting. Although there are no
formal agreements to do so, we will reimburse banks, brokerage firms and other
custodians, nominees and fiduciaries for their reasonable expenses incurred in
sending proxy materials to our shareholders and beneficial owners of our common
stock and Exchangeable Shares in accordance with applicable rules. In addition
to solicitation by mail, our directors, officers and employees may solicit
proxies in person, by telephone, by fax or by electronic or other means of
communication, but they will not receive special compensation for such
activities.
Where You Can Find More Information
We are
required to file annual, quarterly and current reports, proxy statements and
other information required by the Securities Exchange Act of 1934, as amended,
with the Securities and Exchange Commission, or SEC. You may read and copy any
document we file with the SEC at the SEC’s public reference room located at 100
F Street, N.E., Washington, D.C. 20549, U.S.A. Please call the SEC at
1-800-SEC-0330 for further information on the public reference room. Our SEC
filings are also available to the public from the SEC’s internet site at
http://www.sec.gov.
We
maintain a public internet site at
http://www.tweisel.com
and
make available free of charge through our internet site our Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, Proxy
Statements and Forms 3, 4 and 5 filed on behalf of directors and executive
officers and any amendments to those reports filed or furnished pursuant to the
Securities Exchange Act as soon as reasonably practicable after we
electronically file such material with, or furnish it to, the SEC. Also posted
on our website are charters for our Board of Directors’ Audit Committee,
Compensation Committee and Corporate Governance and Nominations Committee, as
well as our Corporate Governance Guidelines, our Code of Conduct and Ethics
governing our directors, officers and employees and other related materials. The
information on our website is not part of this Proxy Statement.
ISSUE ONE:
PROPOSAL
TO AMEND THE THOMAS WEISEL PARTNERS GROUP, INC.
EQUITY
INCENTIVE PLAN
In
January 2006, prior to our initial public offering, the Compensation Committee
of our Board of Directors and Thomas Weisel Partners Group LLC, our then sole
shareholder, each approved the Thomas Weisel Partners Group, Inc. Equity
Incentive Plan (which we refer to as the “Equity Incentive Plan”). In May 2007
and in May 2008 our shareholders approved certain amendments to the Equity
Incentive Plan at the Annual Meetings of Shareholders that took place in 2007
and 2008, respectively. As described further below, we are proposing to further
amend the Equity Incentive Plan in order to increase the number of shares of our
common stock available for awards thereunder.
If the
proposed amendment to the Equity Incentive Plan is not approved, the Equity
Incentive Plan will continue as currently in effect until amended in accordance
with its terms.
The
descriptions of the terms of our Equity Incentive Plan and the proposed
amendment thereto contained herein are qualified in their entirety by reference
to the complete text of the Proposed Third Amended and Restated Equity Incentive
Plan attached hereto as Annex A, which reflects the amendment described
below.
Summary of Proposed Amendment
We are
proposing to amend the Equity Incentive Plan as described below:
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To
increase the number of shares of our common stock available for awards
thereunder by 6,000,000 shares. After giving effect to this proposed
amendment and taking into account awards previously granted, we would have
had, as of December 31, 2008, a total of approximately 8,311,592 million
shares available for future awards. (See Section 4 of the Proposed Third
Amended and Restated Equity Incentive Plan attached hereto as Annex
A.)
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We have
proposed this amendment for a number of reasons, including that:
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The
Equity Incentive Plan is a key element of our compensation philosophy and
we believe our Equity Incentive Plan has been effective in aligning the
long-term interests of our employees and our shareholders because, among
other things:
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We
deliver a substantial portion of employee compensation in the form of
equity awards, in lieu of cash;
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Equity
awards that are performance awards vest upon satisfaction of the related
performance target;
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Equity
awards that are not performance awards are generally subject to a vesting
period of at least 3 years; and
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Equity
awards increase our employees’ long-term ownership interest in Thomas
Weisel Partners.
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Our
Equity Incentive Plan is designed
to:
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Make
employees think and act like owners of Thomas Weisel Partners;
and
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Instill
a long-term perspective across the company, incentivizing employees to be
focused on long-term strategic objectives that are important for
preserving and increasing shareholder
value.
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An
integral part of our compensation philosophy is to deliver a significant
portion of employees’ total compensation in the form of equity awards in
lieu of cash compensation:
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Broad
distribution — we have a broad-based equity program, granting
equity awards to approximately 27% of our employees as a portion of their
performance-based incentive compensation in
2007.
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Not
additive — Equity awards granted pursuant to the Equity
Incentive Plan comprise a significant component of annual total
compensation that is paid in lieu of cash, and do not represent an
additional award.
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If
this amendment is not approved, we may not have sufficient shares in the
Equity Incentive Plan to cover 2009 projected employee equity awards, with
the result that we may need to substitute cash for equity compensation
and, therefore, lose the important benefits of aligning the long-term
interest of employees with those of shareholders, as well as reduce our
liquid assets at a time when we are focused on preserving
cash. As of December 31, 2008, there are only 2,311,592 shares
available for future equity awards under the Equity Incentive
Plan.
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Summary Description of Equity Incentive Plan
The
following is a summary of the material terms of our Equity Incentive Plan as
amended in accordance with the proposed amendment described above. As noted
above, the descriptions of the terms of our Equity Incentive Plan and the
proposed amendment thereto contained herein are qualified in their entirety by
reference to the complete text of the Proposed Third Amended and Restated Equity
Incentive Plan attached hereto as Annex A, which reflects the amendment
described above.
Purpose.
The
purposes of the Equity Incentive Plan are to attract, retain and motivate our
key employees, directors, consultants and advisors and to align the interests of
key employees, directors, consultants and advisors with stockholders through
equity-based compensation and enhanced opportunities for ownership of shares of
our common stock.
Administration.
The Equity Incentive Plan is administered by our Compensation
Committee.
Vesting Schedule.
The Compensation Committee shall have the authority to determine the
vesting schedule applicable to each award; provided, however, that any award of
Options, Restricted Stock and Restricted Stock Units, other than Performance
Awards, granted to any employee shall vest ratably over at least a period of
three years; and provided further that any award of Options, Restricted Stock
and Restricted Stock Units granted to any non-employee director as part of their
regular annual compensation and paid in accordance with our director
compensation policy is not subject to a minimum vesting schedule.
Settlement of Awards.
The Compensation Committee shall have authority to determine
whether, to what extent and under what circumstances awards under the Equity
Incentive Plan may be settled, paid or exercised in cash, shares of common stock
or other awards under the Equity Incentive Plan or other property, or canceled,
forfeited or suspended.
Deferral of Awards.
The Compensation Committee shall determine whether, to what extent,
and under what circumstances cash, shares of common stock, other securities,
other awards under the Equity Incentive Plan, other property, and other amounts
payable with respect to an award under the Equity Incentive Plan shall be
deferred either automatically, or at the election of the holder thereof or the
Compensation Committee.
Shares Available.
Subject to adjustment and giving effect to the proposed amendment,
the maximum number of shares of common stock that may be delivered pursuant to
awards granted under the Equity Incentive Plan is 17,150,000 shares. We have
proposed above to amend this aspect of the Equity Incentive Plan to increase the
number of shares of common stock that may be delivered pursuant to awards
granted under the Equity Incentive Plan by 6,000,000 shares. After giving effect
to this proposed amendment and taking into account awards previously granted, we
would have had, as of December 31, 2008, approximately 8,311,592 million shares
available for future awards.
Shares of
common stock to be issued under the Equity Incentive Plan may be made available
from authorized but unissued common stock of the Company, common stock held by
the Company in its treasury, common stock of the Company purchased by the
Company on the open market, common stock purchased in the open market by one or
more trusts established for the benefit of award recipients or otherwise. During
the term of the Equity Incentive Plan, we will at all times reserve and keep
available the number of shares of our common stock that shall be sufficient to
satisfy the requirements of the Equity Incentive Plan.
If any
shares of our common stock covered by an award (other than a Substitute Award as
defined below), or to which such an award relates, terminate, lapse or are
forfeited or cancelled, or such an award is otherwise settled without the
delivery of the full number of shares of our common stock underlying the award,
then the shares of our common stock covered by such award, or to which such
award relates, to the extent of any such forfeiture, termination, lapse,
cancellation, etc., shall again be, or shall become available for issuance under
the Equity Incentive Plan. Shares of our common stock underlying Substitute
Awards shall not reduce the number of shares of our common stock available for
delivery under the Equity Incentive Plan. A “Substitute Award” under the Equity
Incentive Plan is any award granted in assumption of, or in substitution for, an
outstanding award previously granted by a company acquired by us or with which
we combine.
Adjustments.
The
Compensation Committee shall equitably adjust the terms of any outstanding
awards and the number of shares of common stock issuable under the Equity
Incentive Plan for any increase or decrease in the number of issued shares of
common stock resulting from a stock split, reverse stock split, stock dividend,
spin-off, combination or reclassification of the common stock, or any other
event that the Compensation Committee determines affects our
capitalization.
Eligibility.
All of our full-time and
part-time employees (including an officer or director who is also an employee)
and those of our affiliates and any of our consultants or advisors selected by
the Compensation Committee are eligible to participate in the Equity Incentive
Plan. As of December 31, 2008, we
had full-time
and part-time employees. Because other potential eligible individuals
are selected by the Compensation Committee, it is not possible to determine the
total number of people eligible to participate in the Equity Incentive
Plan. Other than for awards of Incentive Stock Options (as described
below), any individual or individuals to whom an offer of employment has been
extended, a member of our Board of Directors or a member of the board of
directors of any of our subsidiaries may also receive awards under the Equity
Incentive Plan at the discretion of the Compensation
Committee.
Holders of equity-based awards issued
by a company acquired by us or with which we combine are eligible to receive
Substitute Awards under the Equity Incentive Plan.
Grant of Awards.
The Compensation Committee may grant the following five types of
awards under the Equity Incentive Plan: (i) Restricted Stock Units, (ii)
Options, (iii) Restricted Stock, (iv) Other Stock-Based Awards and (v)
Performance Awards (each an “Award”).
An Award
of an Option shall be exercisable at a price determined by the Compensation
Committee on the date of the Award grant, which price shall be no less than the
fair market value of the shares underlying the Option on such date.
An Award
of Restricted Stock Units consists of contractual rights denominated in shares
of our common stock and represents a right to receive the value of a share of
our common stock (or a percentage of such value, which percentage may be higher
than 100%). Restricted Stock Units underlying such Awards are subject to
restrictions and such other terms and conditions as the Compensation Committee
may determine, which restrictions and such other terms and conditions may lapse
separately or in combination at such time or times, in such installments or
otherwise, as the Compensation Committee may deem appropriate.
Performance Awards.
The Equity Incentive Plan also permits the Compensation Committee to
grant Performance Awards. Performance Awards shall become earned and payable if
pre-established targets relating to one or more performance measures are
achieved during a performance period or periods of at least nine months, as
determined by the Compensation Committee. These performance measures include,
but are not limited to: (i) earnings per share, (ii) return on average common
equity, (iii) pre-tax income, (iv) pre-tax operating income, (v) net revenues,
(vi) net income, (vii) profits before taxes, (viii) book value per share, (ix)
stock price, (x) earnings available to common stockholders, (xi) ratio of
compensation and benefits to net revenues and (xii) execution and origination of
specified assignments. Such targets may relate to the Company as a whole, or to
one or more units thereof, and may be measured over such periods, as the
Compensation Committee shall determine.
Termination of Employment.
In case of termination of employment or cessation of services,
unless otherwise determined by the Compensation Committee or provided by the
Compensation Committee in the applicable Award Agreement, the following
provisions shall apply
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(a)
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for
reason of death, Disability (as defined in the Equity Incentive Plan) or
Retirement (as defined in the Equity Incentive Plan), any unvested Award
then held by such participant shall be immediately accelerated and become
fully vested, exercisable and payable and any such Award that is an Option
shall automatically expire on the earlier of (i) the date the Option would
have expired had the participant continued in such employment and (ii) one
year after the date such participant’s service
ceases;
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(b)
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by
the Company for cause (as determined by the Compensation Committee in its
sole discretion), the Compensation Committee will have the discretion to
accelerate and fully vest any Award held by such participant, otherwise
(i) any Award then held by such participant whose restrictions have not
lapsed, which is not exercisable or which is not payable will
automatically be forfeited in full and canceled by the Company upon such
termination of employment and (ii) any Option then held by such
participant to the extent exercisable shall automatically be forfeited in
full and canceled by the Company on the date such participant’s service
ceases;
|
|
(c)
|
by
the Company without cause (as determined by the Compensation Committee in
its sole discretion) within two years following a Change in Control or six
months prior to a Change in Control if the Compensation Committee
reasonably determines in its sole discretion that such termination was at
the behest of the acquiring entity, any unvested Award then held by such
participant shall be immediately accelerated and become fully vested,
exercisable and payable and any such Award that is an Option shall
automatically expire on the earlier of (i) the date the Option would have
expired had the participant continued in such employment and (ii) one year
after the date such participant’s services ceases or, in the event the
Compensation Committee determines the termination was without cause at the
behest of the acquiring entity, one year after the date of such
determination;
|
|
(d)
|
for
any reason other than those described in (a), (b) and (c), the
Compensation Committee will have the discretion to accelerate and fully
vest any Award held by such participant,
otherwise:
|
|
(i)
|
any
Award (other than Performance Awards) then held by such participant whose
restrictions have not lapsed, which is not vested, which is not
exercisable or which is not payable will automatically be forfeited in
full and canceled by the Company on the date such participant’s service
ceases;
|
|
(ii)
|
any
Option then held by such participant to the extent exercisable shall
automatically expire on the earlier of (A) the date the Option would have
expired had the employee continued in such service and (B) 180 days (or 90
days in the case of Options that are intended to qualify as an incentive
stock option under Section 422 of the Internal Revenue Code) after the
date that such participant’s service ceases;
and
|
|
(iii)
|
any
Performance Award then held by such participant which is not then payable
will be paid in accordance with its terms, which terms may provide that
the Performance Award be forfeited;
and
|
|
(e)
|
Unless
the Compensation Committee determines otherwise at any time in its sole
discretion, in the event the Company sells or spins off a portion of its
assets or one of its affiliates and a participant is determined to have a
termination of employment as a result of such sale or spin-off, then the
participant shall be permitted to exercise his or her Options that are
vested and outstanding on the effective date of such termination until the
earlier of one (1) year after such termination of employment or the
expiration of the Award.
|
Duration of the Equity Incentive
Plan.
The Equity Incentive Plan was adopted by our Board of
Directors in 2006 and most recently amended in May 2008. No Award shall be
granted under the Equity Incentive Plan after the tenth anniversary of the later
of (i) the effective date of the May 2008 amendment and (ii) the approval of the
proposed amendment described herein by our shareholders. However, unless
otherwise expressly provided in the Equity Incentive Plan or in an applicable
Award Agreement, any Award theretofore granted may extend beyond such date, and
the authority of the Compensation Committee to administer the Equity Incentive
Plan and to amend, alter, suspend, discontinue, or terminate any such Award, or
to waive any conditions or rights under any such Award, and the authority of our
Board of Directors to amend the Equity Incentive Plan, shall extend beyond such
date.
If the proposal to amend
the Equity Incentive Plan is approved by our shareholders, the life of the
Equity Incentive Plan would be extended to the tenth anniversary of such
approval.
Amendment, Modification and
Termination of the Equity Incentive Plan.
Except as otherwise
provided in an Award Agreement, our Board of Directors may from time to time
suspend, discontinue, revise or amend the Equity Incentive Plan and the
Compensation Committee may, subject to certain restrictions, amend the terms of
any Award in any respect.
Change in Control.
Our
Compensation Committee may in its sole discretion determine to issue Awards
under the Equity Incentive Plan that may, upon occurrence of a Change in
Control, become fully vested and exercisable or payable, as applicable; provided
that all Awards consisting of Restricted Stock Units granted in February 2006 in
connection with our initial public offering shall become fully vested upon a
Change in Control.
“Change
in Control” means:
|
•
|
the
consummation of a merger, consolidation, statutory share exchange or
similar form of corporate transaction involving Thomas Weisel Partners or
the sale or other disposition of all or substantially all of the assets of
Thomas Weisel Partners Group, Inc. to an entity that is not an affiliate
of Thomas Weisel Partners that, in each case, requires stockholder
approval under the laws of Thomas Weisel Partners’ jurisdiction of
organization, unless immediately following such
transaction:
|
|
—
|
more
than 50% of the total voting power of the surviving entity or the entity
that directly or indirectly has beneficial ownership of 95% of the voting
securities eligible to elect directors of the surviving entity (the
“Parent Entity”), if applicable, is represented by securities of Thomas
Weisel Partners that were outstanding immediately prior to the transaction
and such voting power among the holders thereof is in substantially the
same proportion as the voting power of such securities among the holders
thereof immediately prior to such
transaction;
|
|
—
|
no
person (other than any employee benefit plan (or any related trust)
sponsored or maintained by the surviving entity or the Parent Entity), is
or becomes the beneficial owner, directly or indirectly, of securities of
the Parent Entity (or, if there is no Parent Entity, the surviving entity)
representing 20% of the total voting power of the securities then
outstanding generally eligible to vote for the election of directors of
the Parent Entity (or, if there is no Parent Entity, the surviving
entity). However, a “Change in Control” shall not be deemed to occur
solely because any person acquires beneficial ownership of more than 20%
of the total voting power of securities then outstanding generally
eligible to vote for the election of directors of the Parent Entity (or,
if there is no Parent Entity, the surviving entity) as a result of the
acquisition of securities by the Company which reduces the number of such
securities outstanding; provided, that if after such acquisition by the
Company such person becomes the beneficial owner of additional securities
then outstanding generally eligible to vote for the election of directors
of the Parent Entity (or, if there is no Parent Entity, the surviving
entity) that increases the percentage of such securities beneficially
owned by such person, a “Change in Control” shall then be deemed to occur;
and
|
|
—
|
at
least a majority of the members of the board of directors (including
directors whose election or nomination was approved by at least two-thirds
of the incumbent directors of Thomas Weisel Partners) of the Parent Entity
(or, if there is no Parent Entity, the surviving entity) were members of
the Board of Directors of Thomas Weisel Partners at the time of such board
of directors’ approval of the execution of the initial agreement providing
for the transaction; provided, however, that no individual initially
elected or nominated as a director of the Board of Directors as a result
of an actual or threatened election contest with respect to directors or
as a result of any other actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board of Directors
shall be included in the calculation of
incumbency.
|
|
•
|
Any
event that results in the directors on the Board of Directors as of the
effective date of the Equity Incentive Plan (including directors whose
election or nomination was approved by at least two-thirds of the
incumbent directors on the Board of Directors) failing to constitute at
least a majority of the Board; provided, however, that no individual
initially elected or nominated as a director on the Board of Directors as
a result of an actual or threatened election contest with respect to
directors or as a result of any other actual or threatened solicitation of
proxies or consents by or on behalf of any person other than the Board of
Directors shall be included in the calculation of incumbency;
or
|
|
•
|
the
approval by the stockholders of the Company of a plan of complete
liquidation or dissolution of the
Company.
|
Dividend Equivalent Rights.
The Compensation Committee may in its discretion include in the
Award Agreement a dividend equivalent right entitling the participant to receive
amounts equal to the dividends that would be paid, during the time such Award is
outstanding, on the shares of our common stock covered by such Award as if such
shares were then outstanding.
Transferability.
Except as the Compensation Committee may otherwise determine from
time to time, no Award and no right under any such Award, shall be assignable,
alienable, saleable or transferable by a participant otherwise than by will or
by the laws of descent and distribution.
Summary of U.S. Tax Aspects of the Equity Incentive
Plan
The
following discussion is a brief summary of the principal United States federal
income tax consequences under current federal income tax laws relating to awards
under the Equity Incentive Plan. This summary is not intended to be exhaustive
and, among other things, does not describe state, local or foreign income and
other tax consequences.
Restricted Stock.
A holder will not recognize any income upon the receipt of
restricted stock under the Equity Incentive Plan unless the holder elects under
Section 83(b) of the Internal Revenue Code of 1986, as amended, within thirty
days of such receipt, to recognize ordinary income in an amount equal to the
fair market value of the restricted stock at the time of receipt, less any
amount paid for the restricted stock received. If the election is made, the
holder will not be allowed a deduction for amounts subsequently required to be
returned to us. If the election is not made, the holder will generally recognize
ordinary income, on the date that the restrictions to which the restricted stock
is subject are removed, in an amount equal to the fair market value of the
restricted stock on such date, less any amount paid for the shares. At the time
the holder recognizes ordinary income, we generally will be entitled to a
deduction in the same amount.
Generally,
upon a sale or other disposition of restricted stock with respect to which the
holder has recognized ordinary income (
i.e.,
a Section 83(b)
election was previously made or the restrictions were previously removed), the
holder will recognize capital gain or loss in an amount equal to the difference
between the amount realized on such sale or other disposition and the holder’s
basis in such shares. Such gain or loss will be long-term capital gain or loss
generally if the holding period for such shares is more than one
year. If no Section 83(b) election is made, a holder’s holding period
will begin on the date the restrictions lapse.
Restricted Stock Units and
Performance Awards.
The grant of an award of Restricted Stock
Units or a Performance Award will not result in income for the grantee or in a
tax deduction for us. Upon the settlement of such an award, the grantee will
recognize ordinary income equal to the aggregate fair market value of the
payment received, and we generally will be entitled to a tax deduction in the
same amount.
Non-Qualified Stock Options
(“NQSOs”).
An optionee will not recognize any taxable income
upon the grant of an NQSO and we will not be entitled to a tax deduction with
respect to the grant of an NQSO. Upon exercise of an NQSO, the excess of the
fair market value of the common stock on the exercise date over the option
exercise price will be taxable as compensation income to the optionee and will
be subject to applicable withholding taxes. We will generally be entitled to a
tax deduction at such time in the amount of such compensation income. The
optionee’s tax basis for the shares of common stock received pursuant to the
exercise of an NQSO will equal the sum of the compensation income recognized and
the exercise price.
In the
event of a sale of our common stock received upon the exercise of an NQSO, any
appreciation or depreciation after the exercise date generally will be taxed as
capital gain or loss and generally will be long-term capital gain or loss if the
holding period for such common stock is more than one year.
Incentive Stock Options
(“ISOs”).
An optionee will not recognize any taxable income
at the time of grant or timely exercise of an ISO and we will not be entitled to
a tax deduction with respect to such grant or exercise. However, the excess of
the fair market value of the shares on the date of exercise over the exercise
price paid will be included in an optionee’s alternative minimum taxable
income. Whether an optionee is subject to the alternative minimum tax
will depend on his or her particular circumstances. In addition,
exercise of an ISO may give rise to taxable compensation income subject to
applicable withholding taxes, and a tax deduction to us, if the ISO is not
exercised on a timely basis (generally, while the optionee is employed by us or
within three months after termination of employment).
A sale or
exchange by an optionee of shares acquired upon the exercise of an ISO more than
one year after the transfer of the shares to such optionee and more than two
years after the date of grant of the ISO will result in any difference between
the net sale proceeds and the exercise price being treated as long-term capital
gain (or loss) to the optionee. If such sale or exchange takes place within two
years after the date of grant of the ISO or within one year from the date of
transfer of the ISO shares to the optionee, such sale or exchange will generally
constitute a “disqualifying disposition” of such shares that will have the
following results: any excess of (i) the lesser of (a) the fair market value of
the shares at the time of exercise of the ISO and (b) the amount realized on
such disqualifying disposition of the shares over (ii) the option exercise price
of such shares, will be ordinary income to the optionee, subject to applicable
withholding taxes, and we will be entitled to a tax deduction in the amount of
such income. Any further gain or loss after the date of exercise generally will
qualify as capital gain or loss and will not result in any deduction by
us.
New Plan Benefits
No awards
relating to the additional 6,000,000 shares of common stock available for future
awards, contained in the proposed amendment, will be granted pursuant to the
Equity Incentive Plan until such an increase of shares available for future
awards is approved by our shareholders. In addition, awards under the Equity
Incentive Plan are subject to the discretion of our Compensation Committee.
Therefore, it is not possible to determine the benefits that will be received in
the future by participants in the Equity Incentive Plan as a result of the
adoption of the proposed amendment or the benefits that would have been received
by such participants if the proposed amendments had been in effect in the year
ended December 31, 2008. In addition, it is not possible to designate
the employees to whom future awards will be granted under the Equity Incentive
Plan or the number of shares of common stock that will be subject to future
awards that are granted under the Equity Incentive Plan.
2008 Participation
The number of awards granted during the
year through December 31, 2008 under the Equity Incentive Plan was as
follows:
Name and Position
|
|
Number
of
Awards
|
|
|
Value
of
Awards
|
|
Thomas
W. Weisel, Chairman and Chief Executive Officer
|
|
|
109,290
|
(a)
|
|
$
|
1,101,643
|
|
Lionel
F. Conacher, President and Chief Operating Officer
|
|
|
172,891
|
(a)
|
|
$
|
1,032,159
|
|
Shaugn
Stanley, Chief Financial Officer
|
|
|
75,631
|
|
|
$
|
454,110
|
|
Bradford
Raymond, Co-Director of Investment Banking
|
|
|
238,896
|
(a)
|
|
$
|
1,791,572
|
|
Anthony
V. Stais, Head of Trading
|
|
|
167,255
|
(a)
|
|
$
|
1,274,930
|
|
David
A. Baylor, Former Chief Financial Officer
|
|
|
67,255
|
(b)
|
|
$
|
677,930
|
|
Executive
Group
|
|
|
1,283,372
|
(a)
|
|
$
|
9,869,097
|
|
Non-Executive
Director Group
|
|
|
183,333
|
|
|
$
|
549,999
|
|
Non-Executive
Officer Employee Group
|
|
|
5,522,863
|
|
|
$
|
39,877,519
|
|
(a)
|
Does
not include Restricted Stock Units that may be granted pursuant to the
June 2008 performance-based award made to Messrs. Weisel, Conacher,
Raymond and Stais, as described further under “—Executive Compensation”
below.
|
(b)
|
Mr.
Baylor’s 2008 awards were forfeited pursuant to the terms of our Equity
Incentive Plan upon his departure from the
firm.
|
Directors’ Recommendation
The Board
of Directors unanimously recommends a vote FOR the adoption of the proposed
amendment to the Equity Incentive Plan. If the proposed amendment to the Equity
Incentive Plan is not approved by our shareholders, the Equity Incentive Plan in
its current form will remain in effect.
Security Ownership of Certain Beneficial Owners and
Management
The
following table sets forth as of November 30, 2008 (unless otherwise indicated)
certain information regarding the beneficial ownership of our common stock and
the Exchangeable Shares. In accordance with the rules of the SEC, “beneficial
ownership” includes voting or investment power with respect to securities. On
all matters submitted for shareholder vote, the common stock votes together as a
single class with the Special Voting Preferred Stock held by the Trustee. Under
the Voting and Exchange Trust Agreement, the Trustee is entitled to cast a
number of votes equal to the number of outstanding Exchangeable Shares not held
by Thomas Weisel Partners or any person directly or indirectly controlled by or
under common control with Thomas Weisel Partners, and as to which the Trustee
has timely received voting instructions from the Exchangeable Shareholders.
Accordingly, all share numbers and ownership percentage calculations below
assume that all Exchangeable Shares have been exchanged on a one-for-one basis
into corresponding shares of common stock. Unless otherwise indicated, the
address for each person listed below is: c/o Thomas Weisel Partners Group, Inc.,
One Montgomery Street, San Francisco, California 94104. To our knowledge, except
as indicated in the footnotes to this table and pursuant to applicable community
property laws, the persons named in the table have sole voting and investment
power with respect to all shares of common stock and/or Exchangeable Shares
beneficially owned by them.
|
|
Shares
of Common Stock Beneficially Owned
(a)
|
|
Name
of Beneficial Owner
|
|
Number
|
|
|
Percent
|
|
Directors
and Named Executive Officers:
|
|
|
|
|
|
|
Thomas
W. Weisel
(b)
|
|
|
2,439,531
|
|
|
|
7.55
|
%
|
Lionel
F. Conacher
(c)
|
|
|
1,576,723
|
|
|
|
4.88
|
%
|
Shaugn
Stanley
(d)
|
|
|
83,722
|
|
|
|
*
|
|
David
A. Baylor
|
|
|
197,275
|
|
|
|
*
|
|
Anthony
V. Stais
(e)
|
|
|
222,083
|
|
|
|
*
|
|
Bradford
Raymond
(f)
|
|
|
109,773
|
|
|
|
*
|
|
Thomas
I.A. Allen
(g)
|
|
|
74,160
|
|
|
|
*
|
|
Matthew
R. Barger
(h)
|
|
|
56,641
|
|
|
|
*
|
|
Michael
W. Brown
(i)
|
|
|
40,179
|
|
|
|
*
|
|
B.
Kipling Hagopian
(j)
|
|
|
57,956
|
|
|
|
*
|
|
Alton
F. Irby III
(k)
|
|
|
74,433
|
|
|
|
*
|
|
Timothy
A. Koogle
(l)
|
|
|
47,542
|
|
|
|
*
|
|
Michael
G. McCaffery
(m)
|
|
|
60,468
|
|
|
|
*
|
|
All
Directors and Executive Officers as a Group (17 persons)
(n)
|
|
|
5,582,539
|
|
|
|
17.26
|
%
|
Significant
Stockholders:
|
|
|
|
|
|
|
|
|
Royce
& Associates, LLC
(o)
|
|
|
2,563,953
|
|
|
|
7.93
|
%
|
*
|
Less
than 1% of the total outstanding shares of common stock and Exchangeable
Shares, taken together.
|
(a)
|
For
purposes of this table, “beneficial ownership” is determined in accordance
with Rule 13d-3 under the Securities Exchange Act of 1934, as amended,
pursuant to which a person or group of persons is deemed to have
“beneficial ownership” of any shares of common stock that such person has
the right to acquire within 60 days of the date of
determination.
|
|
In
light of the nature of fully vested Restricted Stock Units (“RSUs”) and
fully vested options to purchase common stock (“Options”), we have also
included in this table shares of common stock underlying fully vested but
undelivered RSUs and fully vested but unexercised Options. For purposes of
computing the percentage of outstanding shares of common stock and
Exchangeable Shares held by each person or group of persons named above,
any shares which such person or groups of persons has the right to acquire
within 60 days (as well as the shares of common stock underlying fully
vested but undelivered RSUs and fully vested but unexercised Options) are
deemed to be outstanding but are not deemed to be outstanding for the
purpose of computing the percentage ownership of any other
person.
|
|
Each
of the executive officers listed above or included in All Directors and
Executive Officers as a Group, other than Mark P. Fisher and Tom Carbeau
(who are included in All Directors and Executive Officers as a Group), has
entered into a pledge agreement with us that will secure the liquidated
damages provisions in the equity agreement each of them entered into with
us at the time of our initial public offering (or at the time of our
acquisition of Westwind, in the case of Mr. Conacher), by a pledge of 50%
of the shares of our common stock or Exchangeable Shares owned by him
(including through indirect ownership and ownership through affiliated
entities) at the time of the completion of our initial public offering on
February 7, 2006 (or at the time of our acquisition of Westwind on January
2, 2008, in the case of Mr. Conacher). See “Issue One: Proposal to Amend
the Thomas Weisel Partners Group, Inc. Equity Incentive Plan—Executive
Compensation—Executive Officer Employment and Other Agreements” below for
further information. In addition, each of these executives has agreed not
to pledge shares of our common stock or Exchangeable Shares owned by them
to any party other than us (commonly referred to as a “negative
pledge”).
|
(b)
|
Mr.
Weisel’s beneficial ownership includes (i) 1,584,601 shares of common
stock owned by him directly (a portion of which are pledged to Thomas
Weisel Partners Group, Inc. as security for certain obligations under his
employment agreement), (ii) 765,816 shares of common stock owned by Ross
Investments Inc., an entity wholly owned by him (a portion of which are
pledged to Thomas Weisel Partners Group, Inc. as security for certain
obligations under his employment agreement) and (iii) 89,114 shares of
common stock as to which he disclaims beneficial ownership and which are
owned by his wife, as trustee for immediate family members of Mr.
Weisel.
|
|
Adult
children of Mr. Weisel own 422,515 shares, which shares are not reflected
in the table and as to which he disclaims beneficial ownership. Mr. Weisel
also holds 148,192 unvested RSUs, ownership of which is not reflected in
the table.
|
(c)
|
Mr.
Conacher’s beneficial ownership includes (i) 1,283,237 Exchangeable
Shares, (ii) 284,986 shares of common stock held by a trustee for the
benefit of Mr. Conacher and (iii) 8,500 shares of common stock held in
trust for immediate family members of Mr. Conacher. Mr.
Conacher also holds 172,891 unvested RSUs, ownership of which is not
reflected in the table.
|
(d)
|
Mr.
Stanley also holds 75,922 unvested RSUs, ownership of which is not
reflected in the table.
|
(e)
|
Mr.
Stais also holds 190,596 unvested RSUs, ownership of which is not
reflected in the table.
|
(f)
|
Mr.
Raymond also holds 257,569 unvested RSUs, ownership of which is not
reflected in the table.
|
(g)
|
Mr.
Allen’s beneficial ownership consists of (i) 57,493 Exchangeable Shares
held through Inter-Canadian Capital Strategies, Inc., a personal holding
company, and (ii) 16,667 fully vested but unexercised
Options.
|
(h)
|
Mr.
Barger’s beneficial ownership includes (i) 20,000 shares of common stock
and (ii) 36,641 fully vested but unexercised Options.
|
(i)
|
Mr.
Brown’s beneficial ownership includes (i) 3,538 shares of common stock,
including shares of common stock underlying fully vested but not yet
delivered RSUs and (ii) 36,641 fully vested but unexercised Options. Mr.
Brown also holds 1,769 unvested RSUs, ownership of which is not reflected
in the table.
|
(j)
|
Mr.
Hagopian’s beneficial ownership includes (i) 7,076 shares of common stock
underlying fully vested but not yet delivered RSUs, (ii) 40,466 fully
vested but unexercised Options and (iii) 10,414 shares of common stock
held by him and his wife as trustees of The Hagopian Family Trust. Mr.
Hagopian also holds 3,538 unvested RSUs and 3,367 unvested Options,
ownership of which is not reflected in the table.
|
(k)
|
Mr.
Irby’s beneficial ownership includes (i) 41,100 shares of common stock and
(ii) 33,333 fully vested but unexercised Options.
|
(l)
|
Mr.
Koogle’s beneficial ownership includes (i) 7,076 shares of common stock
underlying fully vested but not yet delivered RSUs and (ii) 40,466 fully
vested but unexercised Options. Mr. Koogle also holds 3,538 unvested RSUs
and 3,367 unvested Options, ownership of which is not reflected in the
table.
|
(m)
|
Mr.
McCaffery’s beneficial ownership includes (i) 7,076 shares of common stock
underlying fully vested but not yet delivered RSUs and (ii) 53,392 fully
vested but unexercised Options. Mr. McCaffery also holds 3,538 unvested
RSUs and 4,212 unvested Options, ownership of which is not reflected in
the table.
|
(n)
|
Beneficial
ownership, in the aggregate, of Directors and Executive Officers as a
group includes, in addition to the amounts reported for each Director and
Executive Officer listed above, (i) 722,687 shares of common stock and
(ii) 9,998 shares of common stock underlying fully vested but not yet
delivered RSUs.
|
(o)
|
The
address of Royce & Associates, LLC is 1414 Avenue of the Americas, New
York, NY 10019. Information as to beneficial ownership by Royce &
Associates, LLC and its address is as of March 6, 2008 and is based solely
on filings relating to our common stock made by Royce & Associates,
LLC and its affiliates with the SEC under Section 13(d) and Section 13(g)
of the Securities Exchange Act of 1934, as amended. According to these
filings Royce & Associates, LLC is an investment adviser registered
under Section 203 of the Investment Advisers Act of
1940.
|
Securities Authorized for Issuance under Equity
Compensation Plans
The
following table provides information, as of December 31, 2008, with respect to
compensation plans (including individual compensation arrangements) under which
equity securities of the registrant are authorized for issuance.
Plan
Category
|
Plan
Name
|
|
Number
of Securities to Be Issued upon Exercise of Outstanding Options, Warrants
and Rights
|
|
|
Weighted-Average
Exercise Price of Outstanding Options, Warrants and Rights
|
|
|
Number
of Securities Remaining Available for Future Issuance
|
|
Equity
compensation plans approved by security holders
|
Equity
Incentive Plan
(1)
|
|
|
8,521,782
|
(2)
|
|
$
|
10.40
|
(3)
|
|
|
2,311,592
|
(4)
|
Equity
compensation plans not approved by security holders
|
None
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Total
|
|
|
|
8,521,782
|
(2)
|
|
$
|
10.40
|
(3)
|
|
|
2,311,592
|
(4)
|
(1)
|
Approved
by Thomas Weisel Partners Group LLC as sole shareholder of Thomas Weisel
Partners prior to our initial public offering. Subsequent amendments to
the Equity Incentive Plan were approved by the shareholders of Thomas
Weisel Partners at the 2007 and 2008 Annual Meetings of
Shareholders.
|
(2)
|
As
of December 31, 2008 8,253,233 shares of common stock may be issued
pursuant to outstanding restricted stock units. As of December 31, 2008,
268,549 shares of common stock may be issued pursuant to outstanding
Options.
|
(3)
|
As
of December 31, 2008, the weighted-average exercise price of outstanding
Options was $10.40. Under our Equity Incentive Plan no exercise price is
applicable to restricted stock units.
|
(4)
|
Number
of securities remaining available for future issuance does not reflect our
proposed amendment to our Equity Incentive Plan to increase by 6,000,000
the number of shares of our common stock available for awards thereunder,
as described herein under “Issue One: Proposal to Amend the Thomas Weisel
Partners Group, Inc. Equity Incentive
Plan.”
|
The table
above does not reflect any grant of equity awards made subsequent to December
31, 2008.
Compensation of Directors
Our
policy is not to pay additional compensation for service on our Board of
Directors to directors who are also our employees. Our compensation policy with
respect to non-employee directors is as follows:
|
•
|
For
service on our Board of Directors, each non-employee director receives an
annual retainer of approximately $75,000, of which 50% or more is paid in
equity awards (with the percentage above 50% to be at the election of each
director). All or a portion of the equity awards may or may not be subject
to vesting requirements, as determined by our Compensation Committee. For
purposes of our director compensation policy, equity awards are valued in
accordance with Statement of Financial Accounting Standards No. 123(R),
Share-Based Payment (commonly referred to as FAS 123(R)), and related SEC
guidance.
|
|
•
|
The
chairperson of the Audit Committee receives additional annual compensation
of approximately $25,000, which is paid in either cash or equity awards at
his or her election.
|
|
•
|
Each
non-employee director may be reimbursed for reasonable out-of-pocket
expenses incurred in connection with his service on our Board of Directors
and its committees.
|
|
•
|
Additional
compensation may be paid to non-employee directors in connection with
additional committee service, as determined by our Compensation
Committee.
|
Compensation
of non-employee directors is subject to change following the annual review of
our policy by the Compensation Committee of our Board of Directors.
In 2008
payments to non-employee directors for service on our Board of Directors were
made in accordance with the policy outlined above. Pursuant to this policy, in
2008 each of Mr. McCaffery, Mr. Allen and Mr. Irby received $25,000 of
additional compensation in connection with additional committee service and each
non-employee director elected to receive all of his 2008 director’s compensation
in the form of stock options awarded under our Equity Incentive Plan, except for
Mr. Allen who received half of his director’s compensation in the form of cash
and half of his director’s compensation in the form of stock options awarded
under our Equity Incentive Plan.
The
following table sets forth information regarding amounts paid to non-employee
directors during 2008 in addition to reimbursement for reasonable out-of-pocket
expenses incurred in connection with their service on our Board of Directors and
its committees.
2008
Director Compensation
|
|
Fees
Earned or Paid in Cash (a)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas
I.A. Allen
(c)
|
|
$
|
50,000
|
|
|
$
|
0
|
|
|
$
|
50,000
|
|
|
$
|
0
|
|
|
$
|
100,000
|
|
Matthew
R. Barger
(d)
|
|
$
|
37,500
|
|
|
$
|
0
|
|
|
$
|
37,500
|
|
|
$
|
0
|
|
|
$
|
75,000
|
|
Michael
W. Brown
(d)(f)
|
|
$
|
37,500
|
|
|
$
|
26,535
|
|
|
$
|
37,500
|
|
|
$
|
0
|
|
|
$
|
101,535
|
|
B.
Kipling Hagopian
(d)(g)(i)
|
|
$
|
37,500
|
|
|
$
|
53,070
|
|
|
$
|
62,500
|
|
|
$
|
0
|
|
|
$
|
153,070
|
|
Alton
F. Irby III
(c)
|
|
$
|
50,000
|
|
|
$
|
0
|
|
|
$
|
50,000
|
|
|
$
|
0
|
|
|
$
|
100,000
|
|
Timothy
A. Koogle
(d)(g)(i)
|
|
$
|
37,500
|
|
|
$
|
53,070
|
|
|
$
|
62,500
|
|
|
$
|
0
|
|
|
$
|
153,070
|
|
Michael
G. McCaffery
(e)(h)(i)
|
|
$
|
62,500
|
|
|
$
|
53,070
|
|
|
$
|
68,750
|
|
|
$
|
0
|
|
|
$
|
184,320
|
|
(a)
|
Represents
portion of director’s compensation that each non-employee director was
entitled to receive in cash, although in 2008 each of our non-employee
directors elected to receive all of his compensation in the form of stock
options awarded under our Equity Incentive Plan, except for Mr. Allen who
received half of his director’s compensation in the form of cash and half
of his director’s compensation in the form of stock options awarded under
our Equity Incentive Plan.
|
(b)
|
With
respect to option awards made in 2008, the exercise price (or “strike
price”) of each option is $6.00, the closing price of our common stock on
the grant date (May 19, 2008), and each option has a 10-year term. In
addition to the strike price, the primary inputs into the option pricing
model were: 54.6% volatility; 3.09% risk-free rate of return; 0% dividend
yield; and 5 year expected life.
|
(c)
|
In
2008, each of Mr. Allen and Mr. Irby was entitled to receive $50,000 in
cash as director’s compensation under our director compensation policy,
however, Mr. Irby elected to receive Options with an equivalent value in
lieu of this cash amount. In addition, in 2008 each of Mr. Allen and Mr.
Irby was entitled to receive $50,000 of director’s compensation in the
form of Options. As result, in 2008 Mr. Allen and Mr. Irby received a
total of 16,667 and 33,333 Options under our director compensation policy,
respectively.
|
(d)
|
In
2008, each of Mr. Barger, Mr. Brown, Mr. Hagopian and Mr. Koogle was
entitled to receive $37,500 in cash as director’s compensation under our
director compensation policy; however, each of them elected to receive
Options with an equivalent value in lieu of this cash amount. In addition,
in 2008 each of Mr. Barger, Mr. Brown, Mr. Hagopian and Mr. Koogle was
entitled to receive $37,500 of director’s compensation in the form of
Options. As result, in 2008 each of Mr. Barger, Mr. Brown, Mr. Hagopian
and Mr. Koogle received a total of 25,000 Options under our director
compensation policy.
|
(e)
|
In
2008, Mr. McCaffery was entitled to receive $62,500 in cash as director’s
compensation under our director compensation policy; however, Mr.
McCaffery elected to receive Options with an equivalent value in lieu of
this cash amount. In addition, in 2008 Mr. McCaffery was entitled to
receive $37,500 of director’s compensation in the form of Options. As
result, in 2008 Mr. McCaffery received a total of 33,333 Options under our
director compensation policy.
|
(f)
|
In
2006, Mr. Brown received Restricted Stock Units with a three year vesting
period as part of a broad-based grant of Restricted Stock Units made to
our employees and non-employee board members and our predecessor’s
advisory board members in connection with our initial public offering. In
accordance with FAS 123(R), but disregarding estimates of forfeitures
relating to service-based conditions, the $26,535 amount reported as
“Stock Awards” in the table above represents the grant date fair value of
this 2006 award multiplied by the portion of the vesting period that
elapsed during 2008.
|
(g)
|
In
2006, Mr. Hagopian and Mr. Koogle each received Options with a four year
vesting period as director’s compensation under our director compensation
policy. In accordance with FAS 123(R), but disregarding estimates of
forfeitures relating to service-based conditions, of the amount reported
as “Option Awards” in the table above, $25,000 represents the grant date
fair value of the portion of this 2006 award multiplied by the portion of
the vesting period that elapsed during
2008.
|
(h)
|
In
2006, Mr. McCaffery received Options with a four year vesting period as
director’s compensation under our director compensation policy. In
accordance with FAS 123(R), but disregarding estimates of forfeitures
relating to service-based conditions, of the amount reported as “Option
Awards” in the table above, $31,250 represents the grant date fair value
of the portion of this 2006 award multiplied by the portion of the vesting
period that elapsed during 2008.
|
(i)
|
In
2006, Mr. Hagopian, Mr. Koogle and Mr. McCaffery each received Restricted
Stock Units with a three year vesting period as part of a broad-based
grant of Restricted Stock Units made to our employees and non-employee
board members in connection with our initial public offering. In
accordance with FAS 123(R), but disregarding estimates of forfeitures
relating to service-based conditions, the $53,070 amount reported as
“Stock Awards” in the table above represents the grant date fair value of
this 2006 award multiplied by the portion of the vesting period that
elapsed during 2008.
|
Compensation Committee Interlocks and Insider
Participation
At
December 31, 2008, our Compensation Committee consisted of Matthew R. Barger
(Chair), Alton F. Irby III and Timothy A. Koogle
.
No member of our
Compensation Committee is or has previously been an officer or employee of
Thomas Weisel Partners. None of our executive officers serves as a member of the
board of directors or compensation committee (or body performing equivalent
functions) of any entity that has one or more executive officers serving as a
member of our Board of Directors or Compensation Committee. The
following sets forth information about certain relationships and related
transactions involving members of our Compensation Committee:
Reorganization
Transactions
. We completed our initial public offering and
conversion to a corporation in February 2006. Prior to our initial public
offering and conversion to a corporation, we were organized as a limited
liability company, Thomas Weisel Partners Group LLC. In connection with the
completion of our initial public offering, we agreed to indemnify our members,
directors, officers and their representatives with respect to any action,
existing or occurring at or prior to the closing of the reorganization
transactions, which may be brought against them and which arises out of or
pertains to our plan of reorganization and merger agreement, the limited
liability company agreement of Thomas Weisel Partners Group LLC or our
reorganization transactions, subject to limitations imposed by Delaware law and
our Certificate of Incorporation and By-Laws.
Director and Officer
Indemnification
. We have entered into agreements that provide
indemnification to our directors, officers and other persons requested or
authorized by our Board of Directors to take actions on behalf of us for all
losses, damages, costs and expenses incurred by the indemnified person arising
out of such person’s service in such capacity, subject to the limitations
imposed by Delaware law. These agreements are in addition to our indemnification
obligations under our By-Laws.
Other
Transactions
. Certain of our directors and officers and
entities affiliated with our directors maintain brokerage accounts with us and
maintain investments in investment funds that we manage. In addition, companies
that our directors are investors in, or are directors or officers of, from time
to time engage in transactions with us, including, for example, to provide us
with software and data services and staffing services and retaining us with
respect to the provision of investment banking services.
During
2007, we acted as a financial advisor to London Bay Capital LLC in connection
with its indirect acquisition of a controlling interest in a limited liability
company, which was completed in January 2008. We also acted as a placement agent
in connection with the issuance of debt undertaken to finance a portion of the
transaction. As compensation for its advisory and placement agent services in
this matter, we received aggregate compensation of approximately $1.9 million
from London Bay Capital and its affiliates, which amount includes 10,000 shares
of Selling Source. Also, in connection with this transaction, we purchased
additional shares of Selling Source. In February 2008, we appointed to our Board
of Directors Alton F. Irby III who is a founding partner of London Bay Capital
LLC.
Under our
Audit Committee Charter, our Audit Committee is responsible for reviewing and
approving related-party transactions, which includes related party transactions
as defined under Item 404 of the SEC’s Regulation S-K. Factors taken
into account in the review of related party transactions include our Code of
Conduct and Ethics, our Standards Regarding Director Independence and our
Corporate Governance Guidelines. Transactions with related persons
that were entered into prior to our initial public offering and conversion to a
corporation in February 2006 were not approved by our Audit
Committee.
Executive Compensation
The
following table sets forth information regarding the compensation paid for
service during our fiscal years ended December 31, 2006, 2007 and 2008 to our
Chief Executive Officer, our former Chief Financial Officer, our current Chief
Financial Officer, and our other three most highly compensated executive
officers who were serving as executive officers on December 31, 2008, in each
case for only those fiscal years in which such individuals served as “named
executive officers.” These officers are collectively referred to as our “named
executive officers” in this proxy statement. David A. Baylor, our former Chief
Financial Officer, also served as our Chief Operating Officer during 2008. On
March 5, 2008, we announced that Mr. Baylor gave notice of his intention to
resign his position to pursue other opportunities and that Mr. Baylor would
remain as Chief Financial Officer through a transition period. On March 5, 2008,
we also announced that Lionel F. Conacher was assuming the role of Chief
Operating Officer. On April 8, 2008, we announced that Shaugn Stanley would be
assuming the role of Chief Financial Officer on an interim basis during the
search to identify a permanent replacement for Mr. Baylor. On July 7, 2008, we
announced that Mr. Stanley would be appointed Chief Financial
Officer.
Summary
Compensation Table
Name
and Principal Position
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity
Incentive Plan Compensation (c)
($)
|
|
|
All
Other Compensation(d)
($)
|
|
|
|
|
Thomas
W. Weisel,
Chairman
and
Chief
Executive
Officer
|
2006
|
|
$
|
200,000
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
|
-
|
|
|
$
|
48,198
|
|
|
$
|
248,198
|
|
2007
|
|
|
200,000
|
|
|
|
-
|
|
|
|
215,852
|
|
|
|
-
|
|
|
|
15,561
|
|
|
|
431,413
|
|
2008
|
|
|
200,000
|
|
|
|
-
|
|
|
|
701,762
|
|
|
|
-
|
|
|
|
18,048
|
|
|
|
919,810
|
|
Lionel
F. Conacher,
President
and
Chief
Operating
Officer
(e)(f)(g)
|
2008
|
|
$
|
200,000
|
|
|
$
|
931,000
|
|
|
$
|
139,192
|
|
|
|
-
|
|
|
$
|
|
|
|
$
|
-
|
|
Shaugn
Stanley,
Chief
Financial
Officer
|
2008
|
|
$
|
200,000
|
|
|
$
|
-
|
|
|
$
|
65,220
|
|
|
|
-
|
|
|
$
|
18,604
|
|
|
$
|
283,824
|
|
David
A. Baylor,
Former
Chief
Financial
Officer
|
2006
|
|
$
|
200,000
|
|
|
$
|
450,000
|
|
|
$
|
-
|
|
|
|
-
|
|
|
$
|
20,851
|
|
|
$
|
670,851
|
|
2007
|
|
|
200,000
|
|
|
|
700,000
|
|
|
|
129,511
|
|
|
|
-
|
|
|
|
17,286
|
|
|
|
1,046,797
|
|
2008
|
|
|
56,923
|
|
|
|
-
|
|
|
|
424,843
|
|
|
|
-
|
|
|
|
6,316
|
|
|
|
488,082
|
|
Bradford
Raymond,
Co-Director
of
Investment
Banking
|
2008
|
|
$
|
200,000
|
|
|
$
|
-
|
|
|
$
|
539,664
|
|
|
|
-
|
|
|
$
|
1,689
|
|
|
$
|
741,353
|
|
Anthony
V. Stais,
Head
of Trading
|
2006
|
|
$
|
200,000
|
|
|
$
|
600,000
|
|
|
$
|
-
|
|
|
|
-
|
|
|
$
|
24,080
|
|
|
$
|
824,080
|
|
2007
|
|
|
200,000
|
|
|
|
700,000
|
|
|
|
129,511
|
|
|
|
-
|
|
|
|
16,341
|
|
|
|
1,045,852
|
|
2008
|
|
|
200,000
|
|
|
|
-
|
|
|
|
376,755
|
|
|
|
-
|
|
|
|
18,828
|
|
|
|
595,583
|
|
(a)
|
Bonus
for 2006 is the sum of (i) 2006 mid-year cash retention bonus paid in July
2006 and (ii) 2006 year-end cash bonus paid in February 2007, each of
which was paid under our Bonus Plan with respect to each recipient who was
an executive officer at the time of payment.
|
|
Bonus
for 2007 is the sum of (i) 2007 mid-year cash retention bonus paid in July
2007 and (ii) 2007 year-end cash bonus paid in February 2008, each of
which was paid under our Bonus Plan with respect to each recipient who was
an executive officer at the time of payment.
|
|
Bonus
for 2008 is the 2008 year-end cash bonus. At this time, we are
unable to calculate the amount of the 2008 year-end cash
bonus. The 2008 year-end cash bonus will be determined by the
Compensation Committee, at its sole discretion, in February 2009, at which
time we will file a Current Report on Form 8-K disclosing the amounts of
such bonuses. The bonus amounts may be as low as zero or
instead be a significant amount.
|
(b)
|
In
2007 a stock award was made to each of the above named executive officers
(other than Mr. Conacher) in the form of Restricted Stock Units granted in
February 2007 pursuant to our Equity Incentive Plan, which awards were
subject to a four year vesting period. The grant date fair value of these
awards, calculated in accordance with FAS 123(R), was as follows: Mr.
Weisel – $965,301; Mr. Stanley - $7,239; Mr.
Baylor – $579,180; Mr. Raymond – $463,352; and Mr.
Stais – $579,180 which, in each case, is equal to the number of
shares underlying the award multiplied by the closing price of our common
stock on the grant date. In accordance with FAS 123(R), but disregarding
estimates of forfeitures relating to service-based conditions, the amounts
reported in the table above for 2007 and 2008 represent the grant date
fair value of the award granted in 2007, multiplied by the portion of the
vesting period that elapsed during 2007 and 2008,
respectively.
|
|
In
February 2008, a stock award was made to each of the above named executive
officers (other than Mr. Conacher) in the form of Restricted Stock Units
granted pursuant to our Equity Incentive Plan, which awards were subject
to a four year vesting period. The grant date fair value of
these awards, calculated in accordance with FAS 123(R), was as follows:
Mr. Weisel – $1,101,643; Mr. Stanley – $6,360; Mr.
Baylor – $677,930; Mr. Raymond – $896,072; and Mr.
Stais – $677,930 which, in each case, is equal to the number of
shares underlying the award multiplied by the closing price of our common
stock on the grant date. In accordance with FAS 123(R), but disregarding
estimates of forfeitures relating to service-based conditions, the amounts
reported in the table above for 2008 with respect to the February 2008
awards represent the grant date fair value of the award granted in 2008,
multiplied by the portion of the vesting period that elapsed during
2008.
|
|
In
June 2008, we granted performance-based cash and equity awards to Messrs.
Weisel, Conacher, Raymond and Stais, as described further below under
“—Compensation Discussion and Analysis.” The expected value on
the award date of the equity portion of these awards, assuming that all of
the performance targets are met, was as follows: Mr.
Weisel – $1,280,000; Mr. Conacher – $1,280,000; Mr.
Raymond – $752,750; and Mr. Stais – $727,750. As of
November 30, 2008, we do not expect that any of the performance targets
will be met and that the value of the equity portion of these awards will
be $0 for each of the above-named individuals. Accordingly, no
amount in respect of these awards is reported in the table
above. Updated information will be provided in the Proxy
Statement relating to the Annual Meeting of Stockholders to be held in
2009.
|
|
In
August 2008, performance-based stock awards were made to Messrs. Stanley,
Raymond and Stais in the form of Restricted Stock Units granted in August
2008 pursuant to our Equity Incentive Plan, as further described under
“—Compensation Discussion and Analysis.” The grant date fair
value of these awards, calculated in accordance with FAS 123(R), were: Mr.
Stanley – $447,750; Mr. Raymond – $746,250; and Mr.
Stais – $447,750; which, in each case, is equal to the number of
shares underlying the award multiplied by the closing price of our common
stock on the grant date. In accordance with FAS 123(R), but disregarding
estimates of forfeitures relating to service-based conditions, the amounts
reported in the table above for 2008 with respect to the August 2008
grants represent the grant date fair value of the award granted in 2008,
multiplied by the portion of the vesting period that elapsed during
2008.
|
|
In
August 2008, stock awards were made to Messrs. Raymond and Stais in the
form of Restricted Stock Units granted in August 2008 pursuant to our
Equity Incentive Plan, as further described under “—Compensation
Discussion and Analysis.” The grant date fair value of these
awards, calculated in accordance with FAS 123(R), were: Mr. Raymond -
$149,250; and Mr. Stais – $149,250; which, in each case, is
equal to the number of shares underlying the award multiplied by the
closing price of our common stock on the grant date. In accordance with
FAS 123(R), but disregarding estimates of forfeitures relating to
service-based conditions, the amounts reported in the table above for 2008
with respect to the August 2008 grants represent the grant date fair value
of the award granted in 2008, multiplied by the portion of the vesting
period that elapsed during 2008.
|
|
In
connection with Mr. Baylor’s departure from the firm on April 11, 2008,
Mr. Baylor forfeited a total of 67,255 Restricted Stock Units pursuant to
the terms of our Equity Incentive Plan.
|
(c)
|
In
June 2008, we granted performance-based cash and equity awards to Messrs.
Weisel, Conacher, Raymond and Stais, as described further below under
“—Compensation Discussion and Analysis.” The expected value on
the award date of the cash portion of these awards, assuming that all of
the performance targets are met, was as follows: Mr.
Weisel – $1,520,000; Mr. Conacher – $1,520,000; Mr.
Raymond – $545,000; and Mr. Stais – $520,000. As of
November 30, 2008, we do not expect that any of the performance targets
will be met and that the value of the cash portion of these awards will be
$0 for each of the above-named individuals. Accordingly, no
amount in respect of these awards is reported in the table
above. Updated information will be provided in the Proxy
Statement relating to the Annual Meeting of Stockholders to be held in
2009.
|
(d)
|
Amounts
for 2006 include (i) term life insurance premium, (ii) personal umbrella
liability insurance premium, (iii) medical, dental and vision plan
premiums, (iv) long-term/short-term disability insurance premiums, (v)
interest paid on partner’s capital (for the period of 2006 prior to our
conversion to a corporation) and (vi) tax preparation costs paid for by
the firm of: Mr. Weisel – $60, $2,600, $15,559, $880, $29,099
and $1,500; Mr. Baylor – $60, $1,350, $15,559, $2,382, $0 and
$1,500; and Mr. Stais – $60, $1,350, $15,559, $1,320, $3,996 and
$1,795.
|
|
Amounts
for 2007 include (i) term life insurance premium, (ii) medical, dental and
vision plan premiums and (iii) long-term/short-term disability insurance
premiums of: Mr. Weisel – $60, $14,721 and $780; Mr.
Baylor – $60, $14,721 and $2,505; and Mr. Stais – $60,
$14,721 and $1,560.
|
|
Amounts
for 2008 include (i) term life insurance premium, (ii) medical, dental and
vision plan premiums and (iii) long-term/short-term disability insurance
premiums of: Mr. Weisel – $60, $17,208 and $780; Mr. Conacher -
$60, $2,525 and $260; Mr. Baylor – $60, $5,736 and $520; Mr.
Stanley – $60, $17,208 and $1,336; Mr. Raymond – $60, $23 and
$1,606; and Mr. Stais – $60, $17,208 and
$1,560.
|
(e)
|
Mr.
Conacher did not join our company until January 2008 upon the closing of
our acquisition of Westwind.
|
(f)
|
Pursuant
to the terms of his employment agreement, Mr. Conacher is guaranteed a
minimum bonus of $2.2 million for 2008 payable in a combination of
Restricted Stock Units and cash. In August 2008, Mr. Conacher
was granted an equity award in the form of Restricted Stock Units pursuant
to our Equity Incentive Plan in partial satisfaction of Mr. Conacher’s
guaranteed bonus. The amount listed above under "Stock Awards"
represents the grant date fair value of the August 2008 equity award,
multiplied by the portion of the vesting period that elapsed during 2008.
The amount listed above under "Bonus" represents the cash value associated
with Mr. Conacher's guaranteed minimum bonus, which is expected to be paid
in February 2009.
|
(g)
|
Amounts
for 2008 listed under "All Other Compensation" also includes the
following: , and .
|
Grants
of Plan-Based Awards
The table
below sets forth information regarding grants of plan-based awards made through
December 31, 2008 to our named executive officers.
In
February 2008, at the same time we paid our 2007 year-end cash bonuses, we made
retention-based stock awards in the form of Restricted Stock Units granted
pursuant to our Equity Incentive Plan, including to each of the named executive
officers listed above (other than Mr. Conacher). These retention-based stock
awards will be earned over a four-year service period beginning in February
2008.
As
described under “—Compensation Discussion and Analysis,” in June 2008, we
granted performance-based cash and stock awards to Messrs. Weisel, Conacher,
Raymond and Stais. Under the terms of the performance-based awards,
recipients are entitled to receive cash and stock awards with an aggregate value
based on the attainment of one or more performance goals that relate to our
adjusted firm net income or departmental revenues or operating
income. A target performance award was established for each recipient
based on achievement of targeted performance goals with respect to the
performance metrics, although (i) there are no pre-established minimum aggregate
award amounts, (ii) awards amounts will not exceed the target performance award
and (iii) award amounts will vary based on meeting the performance target or
underperforming with respect to the target. The aggregate value of any
recipient’s award calculated in accordance with the terms of the award may be
reduced, in the discretion of the Compensation Committee, by up to 40%. Amounts
shown under the “Target” and “Maximum” columns under the headings “Estimated
Future Payouts Under Non-Equity Incentive Plan Awards” and “Estimated Future
Payouts Under Equity Incentive Plan Awards” with respect to the June 2008 grant
represent the maximum dollar value payable in the event the target performance
measures were met. Because the June 2008 awards were denominated in dollars,
even though a portion of the award is payable in Restricted Stock Units, amounts
in respect of the Restricted Stock Unit portion of the award are reflected as
dollar amounts below. The amounts actually payable are discussed under the
“Stock Awards” and “Non-Equity Incentive Plan Compensation” columns and
accompanying notes in the “Summary Compensation” table above. The
Restricted Stock Units to be granted in respect of these performance-based
awards will vest over a three-year service period beginning on February 9,
2009.
In August
2008, we made performance-based stock awards in the form of Restricted Stock
Units granted pursuant to our Equity Incentive Plan to Messrs. Stanley, Raymond
and Stais. These awards are described further below under
“—Compensation Discussion and Analysis.” These performance-based awards will
vest on August 6, 2011 only if the performance conditions are met. Amounts shown
under the “Target” and “Maximum” columns with respect to the August 2008 grant
of performance-based awards represent the number of Restricted Stock Units that
would vest on August 6, 2011 assuming that the performance conditions are met at
100% of the performance range.
In August
2008, we also made retention-based stock awards in the form of Restricted Stock
Units granted pursuant to our Equity Incentive Plan to Messrs. Raymond and
Stais. These awards are described further below under “—Compensation
Discussion and Analysis.”
These retention-based
awards will vest on August 6, 2011.
In August
2008, we granted Mr. Conacher a stock award in the form of Restricted Stock
Units granted pursuant to our Equity Incentive Plan. This award is
described further below under “—Compensation Discussion and Analysis.”
The award made to Mr.
Conacher will vest on an annual basis over a three-year service period beginning
on August 6, 2008.
2008
Grants of Plan-Based Awards
|
|
Compensation
Committee Approval Date
|
|
Estimated
Future Payouts Under Non-Equity Incentive Plan
Awards
|
|
|
Estimated
Future Payouts Under Equity Incentive Plan Awards
|
|
|
All
Other Stock Awards: No. of Shares of Stock or Units (a)
(#)
|
|
|
All
Other Option Awards: No. of Securities Underlying Options
(#)
|
|
|
Exercise
or Base Price of Option Awards
($)
|
|
|
Grant
Date Fair Value of Stock and Option Awards (b)
($)
|
|
|
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
|
(#
|
)
|
|
|
(#
|
)
|
|
|
(#
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas
W. Weisel,
Chairman
and
Chief
Executive
Officer
|
February
8, 2008
|
January
18, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
109,290
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
1,101,643
|
|
|
June
5, 2008
|
June
5, 2008
|
|
$
|
0
|
|
|
$
|
1,520,000
|
|
|
$
|
1,520,000
|
|
|
$
|
0
|
|
|
$
|
1,280,000
|
|
|
$
|
1,280,000
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
2,800,000
|
(c)(d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lionel
F.
Conacher,
President
and
Chief
Operating
Officer
|
June
5, 2008
|
June
5, 2008
|
|
$
|
0
|
|
|
$
|
1,520,000
|
|
|
$
|
1,520,000
|
|
|
$
|
0
|
|
|
$
|
1,280,000
|
|
|
$
|
1,280,000
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
2,800,000
|
(c)(d)
|
|
August
6, 2008
|
July
17, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
172,891
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
1,032,159
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shaugn
Stanley,
Chief
Financial
Officer
|
February
8, 2008
|
January
18, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
631
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
6,360
|
|
|
August
6, 2008
|
July
17, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
75,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
447,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David
A.
Baylor,
Former
Chief
Financial
Officer
|
February
8, 2008
|
January
18, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
67,255
|
(e)
|
|
|
—
|
|
|
|
—
|
|
|
$
|
677,930
|
(e)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bradford
Raymond,
Co-
Director
of
Investment
Banking
|
February
8, 2008
|
January
18, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
88,896
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
896,072
|
|
|
June
5, 2008
|
June
5, 2008
|
|
$
|
0
|
|
|
$
|
545,000
|
|
|
$
|
545,000
|
|
|
$
|
0
|
|
|
$
|
752,750
|
|
|
$
|
752,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
1,297,750
|
(c)(d)
|
|
August
6, 2008
|
July
17, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
125,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
746,250
|
|
|
August
6, 2008
|
July
17, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
25,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
149,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anthony
V.
Stais,
Head
of
Trading
|
February
8, 2008
|
January
18, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
67,255
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
677,930
|
|
|
June
5, 2008
|
June
5, 2008
|
|
$
|
0
|
|
|
$
|
520,000
|
|
|
$
|
520,000
|
|
|
$
|
0
|
|
|
$
|
727,750
|
|
|
$
|
727,750
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
1,247,750
|
(c)(d)
|
|
August
6, 2008
|
July
17, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
75,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
447,750
|
|
|
August
6, 2008
|
July
17, 2008
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
25,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
149,250
|
|
(a)
|
All
stock awards granted in 2008 to named executive officers were in the form
of Restricted Stock Units granted pursuant to our Equity Incentive
Plan.
|
(b)
|
Represents
the estimated fair value of the awards as of the applicable grant date in
accordance with FAS 123(R).
|
(c)
|
Represents
the expected value of the award on the award date, assuming that all of
the performance targets are met.
|
(d)
|
As
of November 30, 2008, we do not expect that any of the performance targets
will be met and that the value of these awards will be
$0.
|
(e)
|
Mr.
Baylor’s awards were forfeited pursuant to the terms of our Equity
Incentive Plan upon his departure from the
firm.
|
Outstanding
Equity Awards
The
following table sets forth information regarding unexercised options, stock that
has not vested and equity incentive plan awards for each of our named executive
officers outstanding as of December 31, 2008.
Outstanding
Equity Awards at December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
No.
of Shares or Units of Stock that Have Not Vested (a)
(#)
|
|
|
Market
Value of Shares or Units of Stock that Have Not Vested (b)
($)
|
|
|
Equity
Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights
That Have Not Vested (c)
(#)
|
|
|
Equity
Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or
Other Rights That Have Not Vested (b)(c)
($)
|
|
Thomas
W. Weisel,
Chairman
and
Chief
Executive Officer
|
|
|
—
|
|
|
|
148,192
|
|
|
$
|
632,780
|
|
|
|
—
|
|
|
|
—
|
|
Lionel
F. Conacher,
President
and Chief
Operating
Officer
|
|
|
—
|
|
|
|
172,891
|
|
|
$
|
738,245
|
|
|
|
—
|
|
|
|
—
|
|
Shaugn
Stanley,
Chief
Financial Officer
|
|
|
—
|
|
|
|
75,922
|
|
|
$
|
324,187
|
|
|
|
75,000
|
|
|
$
|
320,250
|
|
David
A. Baylor,
Former
Chief Financial
Officer
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Bradford
Raymond,
Co-Director
of
Investment
Banking
|
|
|
—
|
|
|
|
257,569
|
|
|
$
|
1,099,820
|
|
|
|
125,000
|
|
|
$
|
533,750
|
|
Anthony
V. Stais,
Head
of Trading
|
|
|
—
|
|
|
|
190,596
|
|
|
$
|
813,845
|
|
|
|
75,000
|
|
|
$
|
320,250
|
|
(a)
|
All
outstanding equity awards held by named executive officers as of December
31, 2008 were in the form of Restricted Stock Units granted pursuant to
our Equity Incentive Plan. The vesting schedule with respect to
each named executive officer’s Restricted Stock Units that were not vested
as of December 31, 2008 is as follows:
|
Name
|
|
2/8/2009
|
|
|
8/6/2009
|
|
|
2/9/2009
|
|
|
2/8/2010
|
|
|
8/6/2008
|
|
|
2/9/2010
|
|
|
2/8/2011
|
|
|
2/9/2011
|
|
|
8/6/2011
|
|
|
8/6/2011
|
|
|
8/6/2011
|
|
|
2/8/2012
|
|
Thom
Weisel
|
|
|
27,323
|
|
|
|
—
|
|
|
|
12,968
|
|
|
|
27,323
|
|
|
|
—
|
|
|
|
12,967
|
|
|
|
27,322
|
|
|
|
12,967
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
27,322
|
|
Lionel
Conacher
|
|
|
—
|
|
|
|
57,631
|
|
|
|
—
|
|
|
|
—
|
|
|
|
57,630
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
57,630
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Shaugn
Stanley
|
|
|
158
|
|
|
|
—
|
|
|
|
97
|
|
|
|
158
|
|
|
|
—
|
|
|
|
97
|
|
|
|
158
|
|
|
|
97
|
|
|
|
—
|
|
|
|
—
|
|
|
|
75,000
|
|
|
|
157
|
|
Brad
Raymond
|
|
|
22,224
|
|
|
|
—
|
|
|
|
6,225
|
|
|
|
22,224
|
|
|
|
—
|
|
|
|
6,224
|
|
|
|
22,224
|
|
|
|
6,224
|
|
|
|
—
|
|
|
|
25,000
|
|
|
|
125,000
|
|
|
|
22,224
|
|
Tony
Stais
|
|
|
16,814
|
|
|
|
—
|
|
|
|
7,781
|
|
|
|
16,814
|
|
|
|
—
|
|
|
|
7,780
|
|
|
|
16,814
|
|
|
|
7,780
|
|
|
|
—
|
|
|
|
25,000
|
|
|
|
75,000
|
|
|
|
16,813
|
|
(b)
|
Market
value is determined based on the $4.27 closing price per share of our
common stock on November 28, 2008.
|
(c)
|
All
outstanding equity incentive plan awards held by named executive officers
as of December 31, 2008 were in the form of Restricted Stock Units granted
pursuant to our Equity Incentive Plan. Assuming the relevant
performance measures are met at the target level, the vesting schedule
with respect to each named executive officer’s outstanding equity
incentive plan awards that were not vested as of December 31, 2008 is as
follows: Mr. Stanley: 75,000 on August 6, 2011; Mr. Raymond:
125,000 on August 6, 2011; and Mr. Stais: 75,000 on August 6,
2011. As noted above, the number of Restricted Stock Units to
be granted to Messrs. Weisel, Conacher, Raymond and Stais pursuant to the
June 2008 grant of performance-based equity awards has not yet been
determined. Amounts reflected in the table above for Messrs.
Weisel and Stais include the dollar value of the June 2008 award allocable
to Restricted Stock Units, assuming the target amount is paid under the
award. Once determined and granted, those Restricted Stock
Units will be subject to
pro rata
vesting on an
annual basis over a three-year period beginning on February 9,
2009.
|
Option
Exercises and Stock Vested
During
2008 none of our named executive officers exercised stock options or similar
instruments in respect of our common stock or transferred any award of any of
the foregoing for value. The following table provides information regarding the
aggregate number of Restricted Stock Units that vested with respect to each of
our named executive officers during 2008.
Option
Exercises and Stock Vested During 2008
|
|
|
|
|
|
|
|
|
|
|
|
No.
of Shares Acquired on Vesting
|
|
|
Value
Realized on Vesting (a)
|
|
Thomas
W. Weisel,
Chairman
and Chief Executive Officer
|
|
|
—
|
|
|
|
12,968
|
|
|
$
|
128,772
|
|
Lionel
F. Conacher,
President
and Chief Operating Officer
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Shaugn
Stanley,
Chief
Financial Officer
|
|
|
—
|
|
|
|
98
|
|
|
$
|
973
|
|
David
A. Baylor,
Former
Chief Financial Officer
|
|
|
—
|
|
|
|
7,781
|
|
|
$
|
77,265
|
|
Bradford
Raymond,
Co-Director
of Investment Banking
|
|
|
—
|
|
|
|
6,225
|
|
|
$
|
61,814
|
|
Anthony
V. Stais,
Head
of Trading
|
|
|
—
|
|
|
|
9,486
|
|
|
$
|
94,196
|
|
(a)
|
The
value realized on vesting is the fair market value of the shares
underlying the Restricted Stock Units on the date of
vesting.
|
Pension
Benefits
We do not
maintain any plan that provides for payments or other benefits at, following or
in connection with the retirement of any of our named executive
officers.
Non-Qualified
Deferred Compensation
We do not
maintain any defined contribution or other plan for any of our named executive
officers that provides for the deferral of compensation on a basis that is not
tax-qualified.
Potential
Payments Upon Termination or Change-in-Control
Thomas W. Weisel, Chairman and Chief
Executive Officer
. We have entered into an amended and
restated employment agreement with Thomas W. Weisel, our Chairman and Chief
Executive Officer, which provides for certain payments and benefits in
connection with any termination of Mr. Weisel’s employment. The amended and
restated employment agreement is substantially similar to the employment
agreement and the first amendment thereto filed as an exhibit to our 2007 Annual
Report on Form 10-K (see “Where You Can Find More Information” above), except
for changes made to accommodate the new Section 409A rules. We will
file a copy of the amended and restated employment agreement as an exhibit to
our 2008 Annual Report on Form 10-K. Under the agreement, Mr. Weisel is employed
for an initial employment term (ending on December 31, 2009) and, in the absence
of a termination of the agreement or of Mr. Weisel’s employment, for subsequent
two-year employment terms thereafter. Either we or Mr. Weisel may terminate his
employment with us at any time for any reason, or for no reason, subject to 90
days’ advance written notice in most cases.
Termination by Us Without Cause or
by Mr. Weisel for Good Reason
. If Mr. Weisel’s employment is
terminated by us without “Cause” or by Mr. Weisel for “Good Reason” (each as
defined in his amended and restated employment agreement), Mr. Weisel will be
entitled to receive a lump-sum payment from us equal to the sum of the following
amounts (which, in each case, we have estimated as if Mr. Weisel had been
terminated as of December 31, 2008):
·
|
Payment
for any accrued but unpaid base salary, accrued but unused vacation days,
any unpaid expense reimbursements and any other vested or accrued but
unpaid compensation and benefits. We estimate that if Mr. Weisel had been
terminated as of December 31, 2008, this amount would be approximately
$0.
|
·
|
Payment,
which would be paid on the 60
th
day following the date of termination, equal to the remaining base salary
from the date of termination through the end of the then-existing
employment term. We estimate that if Mr. Weisel had been
terminated as of December 31, 2008, this amount would be approximately
$200,000.
|
·
|
A
bonus payment, which would be paid on the 60
th
day following the date of termination, at least equal to the average of
his bonus amounts for the three fiscal years ending before the termination
notice is given, together with a pro-rated bonus for any portion of the
then-existing employment period served. We estimate that if Mr. Weisel had
been terminated as of December 31, this amount would have been
approximately $1.1 million.
|
Payment
by us of the above amounts would be subject to the condition that Mr. Weisel
execute and deliver to us a release of claims that released us, our affiliates,
and each of our members (and any of their respective past or present officers,
directors, employees or agents) from any and all liabilities to Mr.
Weisel.
In
addition, if Mr. Weisel’s employment is terminated by us without “Cause” or by
Mr. Weisel for “Good Reason,” Mr. Weisel would be entitled to (i) full vesting
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 dependants in our employee benefit and welfare plans
for 24 months following the date of termination. We estimate that if Mr. Weisel
had been terminated as of December 31, 2008, the value of these entitlements
would have been approximately $669,988, of which $37,208 is attributable to the
estimated cost of providing the employee benefit and welfare plans for a
24-month period and $632,780 is attributable to the value, based on the closing
price per share of our common stock on November 28, 2008, of restricted stock
units that were unvested as of December 31, 2008.
Termination by Us for Cause, by Mr.
Weisel Without Good Reason or Due to Death or Disability
. If
Mr. Weisel’s employment is terminated by us for “Cause” or by Mr. Weisel without
“Good Reason” or if his employment terminates as a result of his death or
disability, Mr. Weisel will be entitled to receive his accrued but unpaid base
salary, accrued but unused vacation days, any unpaid expense reimbursements and
any other vested or accrued but unpaid compensation and benefits. We estimate
that if Mr. Weisel had been terminated as of December 31, 2008, this amount
would have been approximately $0.
Other
than as described above with respect to Mr. Weisel and as described below with
respect to Mr. Conacher, none of our named executive officers is a party to any
contract, agreement, plan or arrangement, whether written or unwritten, that
provides for any payment to such officer at, following or in connection with any
termination of such officer or in connection with a change in control of Thomas
Weisel Partners, other than that under certain circumstances outstanding equity
awards granted under our Equity Incentive Plan will become fully vested,
exercisable and payable in connection with a change in control. If all of the
equity awards held by our named executive officers were to become fully vested,
exercisable and payable in connection with a change in control, then, based on
the closing price per share of our common stock on November 28, 2008, the value
of these awards would have been as follows: Mr. Weisel – $632,780 (as
noted above); Mr. Conacher – $738,245 (as noted below); Mr. Stanley
– $324,187 Mr. Baylor – $0; Mr. Raymond – $1,099,820;
and Mr. Stais – $813,845.
The
provisions of Mr. Weisel’s employment agreement, including those relating to
amounts payable in connection with any termination of Mr. Weisel’s employment,
were determined based on arms’ length negotiation and our understanding of
market practice for employment terms for similarly situated executive officers
at comparable firms.
Lionel F. Conacher, President and
Chief Operating Officer
. We have entered into an amended and
restated employment agreement with Lionel F. Conacher, our President and Chief
Operating Officer, which provides for certain payments and benefits in
connection with any termination of Mr. Conacher’s employment. The
amended and restated employment agreement is substantially similar to the
employment agreement filed as an exhibit to our 2007 Annual Report on Form 10-K
(see “Where You Can Find More Information” above), except for changes made to
accommodate the new Section 409A rules. We will file a copy of the
amended and restated employment agreement as an exhibit to our 2008 Annual
Report on Form 10-K. 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 we or Mr. Conacher may terminate his employment with us
at any time for any reason, or for no reason, subject to 90 days’ advance
written notice in most cases.
Termination by Us Without Cause or
by Mr. Conacher for Good Reason
. 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:
·
|
Payment
for any accrued but unpaid base salary, accrued but unused vacation days,
any unpaid expense reimbursements and any other vested or accrued but
unpaid compensation and benefits. We estimate that if Mr. Conacher had
been terminated as of December 31, 2008, this amount would be
approximately $0.
|
·
|
Payment,
which would be paid on the 60
th
day following the date of termination, equal to two years’ base salary. We
estimate that if Mr. Conacher had been terminated as of December 31, 2008,
this amount would be approximately
$400,000.
|
·
|
A
bonus payment, which would be paid on the 60
th
day following the date of termination, 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 2007 is deemed to be
$3,000,000. If Mr. Conacher had been terminated as of December
31, 2008, we estimate this amount would be approximately $2.25
million.
|
Payment
by us 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 us without “Cause” or by
Mr. Conacher for “Good Reason,” Mr. Conacher would be entitled to (i) full
vesting 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 our employee benefit
and welfare plans for 24 months following the date of termination. We estimate
that if Mr. Conacher had been terminated as of December 31, 2008, the value of
these entitlements would have been approximately $738,245, all of which is
attributable to the estimated cost of providing the employee benefit and welfare
plans for a 24-month period.
Termination by Us for Cause, by Mr.
Conacher Without Good Reason or Due to Death or Disability
. 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. We estimate that if Mr. Conacher had been terminated as of December
31, 2008, this amount would have been approximately $0.
The
provisions of Mr. Conacher’s employment agreement, including those relating to
amounts payable in connection with any termination of Mr. Conacher’s employment,
were determined based on arms’ length negotiation and our understanding of
market practice for employment terms for similarly situated executive officers
at comparable firms.
Executive
Officer Employment and Other Agreements
Employment
Agreements
CEO Employment
Agreement
. We have entered into an amended and restated
employment agreement with Mr. Weisel, our Chairman and Chief Executive Officer.
The following is a description of the material terms of our amended and restated
employment agreement with Mr. Weisel, which is substantially similar to the
employment agreement and the first amendment thereto filed as an exhibit to our
2007 Annual Report on Form 10-K (see “Where You Can Find More Information”
above), except for changes made to accommodate the new Section 409A
rules. We will file a copy of the amended and restated employment
agreement as an exhibit to our 2008 Annual Report on From 10-K.
Under the
agreement, Mr. Weisel will serve as our Chief Executive Officer for an initial
term (ending on December 31, 2009) and, following the initial term, his term of
employment will be automatically extended for successive two year periods,
subject to early termination pursuant to the agreement and unless otherwise
agreed in writing by Mr. Weisel and us 90 days prior to the end of such periods.
During Mr. Weisel’s employment period, we will take all reasonable action to
cause him to be appointed or elected to our Board of Directors, and to serve as
Chairman of our Board of Directors, subject to applicable laws, rules and
regulations and our corporate governance policies and practices.
Mr.
Weisel will be paid an annual base salary of $200,000, payable in semi-monthly
installments. The amount of his annual salary is subject to annual review by our
Compensation Committee but cannot be decreased. In addition, each year Mr.
Weisel may be awarded an annual bonus under our bonus plan for senior
executives. Mr. Weisel is also entitled to participate in our group health,
dental and life insurance plans, 401(k) savings plan and equity incentive plan,
and entitled to vacation benefits, reimbursement of reasonable business
expenses, and use of office space, facilities and other support and services on
a basis that is at least as favorable as that provided to him on the date of the
agreement, subject to periodic review and modification by the Compensation
Committee in its sole discretion. Under the agreement, either we or Mr. Weisel
may terminate his employment with us at any time for any reason, or for no
reason, subject to 90 days’ advance written notice in most cases. Further
information regarding payments that would be made to Mr. Weisel under his
employment agreement upon any termination of Mr. Weisel’s employment are set
forth above under “– Potential Payments Upon Termination or
Change-in-Control.”
In
addition, Mr. Weisel has granted us a license to use his name and certain other
names in connection with our current and future business and affairs. He is also
subject to the noncompetition, nonsolicitation, liquidated damages, transfer of
client relationships and confidentiality provisions contained in the TWP Equity
Agreement described below.
President’s Employment
Agreement
. We have entered into an amended and restated
employment agreement with Lionel F. Conacher, our President and Chief Operating
Officer. The following is a description of the material terms of our amended and
restated employment agreement with Mr. Conacher, which is substantially similar
to the employment agreement filed as an exhibit to our 2007 Annual Report on
Form 10-K (see “Where You Can Find More Information” above), except for changes
made to accommodate the new Section 409A rules. We will file a copy
of the amended and restated employment agreement as an exhibit to our 2008
Annual Report on From 10-K.
Our
agreement with Mr. Conacher 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. The agreement also provides that
Mr. Conacher will be entitled to a base salary of $200,000, which may be
increased (but not decreased) annually and that 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 with Mr. Conacher 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. Further information regarding payments that would be made
to Mr. Conacher under his employment agreement upon any termination of Mr.
Conacher’s employment is set forth above under “– Potential Payments Upon
Termination or Change-in-Control.”
Partner Employment
Agreements
. In addition to the employment agreements with Mr.
Weisel and Mr. Conacher described above, we have entered into an employment
agreement with each of our other employees who was a partner of Thomas Weisel
Partners Group LLC prior to its conversion to a corporation in connection with
our initial public offering (including each of our named executive
officers). The following are descriptions of the material terms of
each of these employment agreements. The terms of each such employment agreement
are identical. You should, however, refer to the exhibits that are a part of our
Annual Report on Form 10-K for a copy of the form of the Partner Employment
Agreement. See “Where You Can Find More Information” above.
Each
Partner Employment Agreement provides as follows:
Base Salary
. Each
employee who is a party to a Partner Employment Agreement will be paid an annual
base salary of $200,000, payable in semi-monthly installments. The amount of the
annual salary is subject to annual review by us. In addition, annual bonuses may
be awarded in excess of base salary.
Benefits
. Each
employee who is a party to a Partner Employment Agreement will be entitled to
participate in our group health, dental and life insurance plans, 401(k) savings
plan and equity incentive plan.
Termination of
Employment
. Each employee who is a party to a Partner
Employment Agreement may generally be terminated by either that employee or us
on 90 days’ prior written notice, subject to the continuing survival of the
non-competition, non-solicitation, liquidated damages, transfer of client
relationships and confidentiality provisions contained in the TWP Equity
Agreement described below, to the extent applicable.
Equity
and Pledge Agreements
TWP Equity Agreement
Persons and Shares
Covered
. We have entered into an equity agreement with each of
our employees who was a partner of Thomas Weisel Partners Group LLC prior to its
conversion to a corporation in connection with our initial public offering
(including each of our named executive officers). We refer to this agreement as
the “TWP Equity Agreement.” The shares covered by the TWP Equity Agreement
include all shares of our common stock owned by such an employee as of the
completion of our initial public offering on February 7, 2006 (including through
indirect ownership and ownership through affiliated entities) and shares
received by that employee (directly or indirectly) in exchange for or in respect
of his or her shares of our common stock by reason of stock dividends, stock
splits, reverse stock splits, spin-offs, split-ups, recapitalizations,
combinations or exchanges of shares, but does not include any Restricted Stock
Units awarded to that employee under our Equity Incentive Plan. The shares of
our common stock covered by the TWP Equity Agreement are referred to as “covered
shares.” A copy of the form of the TWP Equity Agreement is included as an
exhibit to our Annual Report on Form 10-K. See “Where You Can Find More
Information” above.
When an
employee who is a party to the TWP Equity Agreement ceases to be our employee
for any reason other than death or disability, he or she will continue to be
bound by all the provisions of the TWP Equity Agreement until that employee
holds (directly or indirectly) all covered shares free from the transfer
restrictions described below and thereafter he or she will no longer be bound,
in general, by the provisions (other than the continuing provisions) of the TWP
Equity Agreement.
Transfer
Restrictions
. Each employee who is a party to the TWP Equity
Agreement has agreed, among other things, to:
·
|
except
as described below, not transfer, and to maintain sole beneficial
ownership of, his or her covered shares for a period of five years after
the completion of our initial public offering on February 7, 2006;
provided, however, that each such employee who, in the reasonable judgment
of our Underwritten Offering Committee described below, continues to be
actively engaged in our business, may transfer up to one third of his or
her covered shares following each of the third and fourth anniversaries of
the completion of our initial public offering on February 7, 2006
(including any shares sold in underwritten public offerings during the
relevant period);
|
·
|
comply
with the transfer restrictions relating to the covered shares imposed by
the lock-up provisions of the underwriting agreement relating to our
initial public offering; and
|
·
|
comply
with other transfer restrictions relating to our shares of common stock
when requested to do so by us and comply with our insider trading
policies.
|
Transfers
include, among other things, any disposition of the economic risks of ownership
of covered shares, including short sales, option transactions and use of
derivative financial instruments or other hedging arrangements with respect to
our securities.
Sales Through Underwritten Public
Offerings
. Our Underwritten Offering Committee may approve one
or more underwritten public offerings to sell covered shares during the transfer
restrictions period, subject to the restrictions described below. Each employee
who is a party to the TWP Equity Agreement and who, in the reasonable judgment
of our Underwritten Offering Committee, continues to be actively engaged in our
business or has suffered a termination of employment resulting from a
disability, or the heir or estate of any partner who has died, will be entitled
to participate in such an underwritten public offering on a pro rata basis with
the covered shares of all other employees who are a party to the TWP Equity
Agreement so participating, or on a lesser basis at his or her request. Our
Underwritten Offering Committee currently consists of Thomas W. Weisel, who
chairs the committee, Lionel F. Conacher, our President and Chief Operating
Officer, Shaugn Stanley, our Chief Financial Officer, and Mark P. Fisher, our
General Counsel. Approval of an underwritten offering by the committee will
require the unanimous approval of the members of the committee. Approval of an
underwritten public offering by the committee is subject to the further
limitations contained in the TWP Equity Agreement. These underwritten public
offerings will be subject to any other registration rights that we have granted
or may in the future grant. Covered shares will also be subject to any
underwriters’ lock-up then in effect. In addition, subject to the approval of
our Underwritten Offering Committee, employees who are a party to the TWP Equity
Agreement will have the right to participate in underwritten offerings effected
by us for other purposes, subject to the limitations described above and certain
other limitations.
Our
Underwritten Offering Committee may approve requests by an employee that is a
party to the TWP Equity Agreement to transfer covered shares to certain
permitted transferees such as family members or family trusts; provided that
these transferees will be subject to the same transfer restrictions under the
TWP Equity Agreement.
Sales in Compliance With Rule 144
Under the Securities Act
. Consistent with the transfer
restrictions described above, and other than in compliance with the exceptions
described above, employees who are a party to the TWP Equity Agreement generally
will not be permitted to transfer covered shares when transfers are restricted
under the TWP Equity Agreement through sales effected in compliance with Rule
144 or otherwise. However, upon a termination of such an employee’s employment
due to his or her death or disability, such employee or his or her heirs or
estate will be permitted to sell covered shares in compliance with Rule 144,
regardless of when such termination of employment occurred.
Compliance with Securities
Laws
. In addition to the restrictions set forth above,
employees who are party to the TWP Equity Agreement will need to comply with
applicable securities laws in connection with any transfer of our common stock
and may need to deliver an opinion of counsel in connection with any
transfer.
All
transfer restrictions applicable to an employee under the TWP Equity Agreement
terminate upon the death of such employee or upon a change of control involving
us.
Dividends
. To the
extent dividends are paid on covered shares while an employee remains subject to
the transfer restrictions of the TWP Equity Agreement, the employee will be
entitled to such dividends.
Voting
. Each
employee who is a party to the TWP Equity Agreement will be entitled to full
voting rights with respect to his or her covered shares.
Confidentiality
. Each
partner is required to protect and use “confidential information” in accordance
with the restrictions placed by us on its use and disclosure.
Noncompetition
. Each
employee who is a party to the TWP Equity Agreement has agreed that, without our
consent, during the period ending 12 months after the date the employee ceases
to be employed by us, he or she may not:
·
|
form,
or acquire a 5% or greater ownership, voting or profit participation
interest in any competitive enterprise;
or
|
·
|
associate
with any competitive enterprise and in connection with such association
engage in, or directly or indirectly manage or supervise personnel engaged
in, any activity (i) which is similar or substantially related to any
activity in which that employee was engaged, in whole or in part, at our
firm, (ii) for which that employee had direct or indirect managerial or
supervisory responsibility at our firm or (iii) which calls for the
application of the same or similar specialized knowledge or skills as
those utilized by that employee in his or her activities at our
firm.
|
When we
refer to a “competitive enterprise,” we are referring to any business enterprise
that engages in, or owns a significant interest in any entity that engages in,
financial services such as investment banking, public or private finance,
financial advisory services, private investing, merchant banking, asset or hedge
fund management, securities brokerage, sales, lending, custody, clearance,
settlement or trading.
Nonsolicitation
. During
the period ending 12 months after the date an employee who is a party to the TWP
Equity Agreement ceases to be employed by us, that employee may not, directly or
indirectly, in any manner:
·
|
solicit
any client with whom that employee worked, or whose identity became known
to him or her in connection with his or her employment with our firm, to
transact business with a competitive enterprise or reduce or refrain from
doing any business with our firm;
|
·
|
interfere
with or damage any relationship between our firm and any client or
prospective client; or
|
·
|
solicit
any of our employees to apply for, or accept employment with, any
competitive enterprise.
|
Transfer of Client
Relationships
. Each employee who is a party to the TWP Equity
Agreement is required, upon termination of his or her employment, to take all
actions and do all things reasonably requested by us during a 90-day cooperation
period to maintain for us the business, goodwill and business relationships with
our clients with which he or she worked.
Liquidated
Damages
. In the case of any breach of the non-competition or
non-solicitation provisions contained in the TWP Equity Agreement prior to the
fifth anniversary of the date of the completion of our initial public offering
on February 7, 2006, the breaching employee will be liable for liquidated
damages. The liquidated damages obligation of each employee who is a party to
the TWP Equity Agreement is secured by 50% of our common stock owned by that
employee (including through indirect ownership and ownership through affiliated
entities) at the time of the completion of our initial public offering on
February 7, 2006.
Term and
Amendment
. The TWP Equity Agreement will be in effect for ten
years from the date of the completion of our initial public offering on February
7, 2006 or until it is earlier terminated by us. An employee seeking a waiver
from the TWP Equity Agreement generally requires our consent, and the TWP Equity
Agreement may be amended only with approval of our Board of
Directors.
TWP Pledge Agreements
Each of our employees who is a party to
the TWP Equity Agreement has entered into a pledge agreement with us that will
secure the liquidated damages provisions in the TWP Equity Agreement by a pledge
of 50% of the shares of our common stock owned by him or her (including through
indirect ownership and ownership through affiliated entities) at the time of the
completion of our initial public offering on February 7, 2006. These pledges of
our common stock will terminate on the earliest to occur of:
·
|
the
death of the relevant employee;
|
·
|
the
expiration of the 12-month period following the termination of the
employment of the relevant employee;
or
|
·
|
the
fifth anniversary of the date of the completion of our initial public
offering on February 7, 2006 (unless employment has been terminated
earlier).
|
The
liquidated damages provisions in the TWP Equity Agreement are in addition to the
forfeiture of any future equity-based awards that may occur as a result of the
breach of any non-competition or non-solicitation provisions contained in those
awards. The liquidated damages and pledge arrangements do not preclude us from
seeking any injunctive relief to which we may be entitled for a breach of the
non-competition or non-solicitation provisions.
A copy of
the form of the Pledge Agreement is included as an exhibit to our Annual Report
on Form 10-K. See “Where You Can Find More Information” above.
Westwind Equity
Agreement
Persons and Shares
Covered
. We have entered into an equity agreement with
substantially all of the persons who were shareholders of Westwind prior to our
acquisition of Westwind. We refer to this agreement as the “WW Equity
Agreement.” The shares covered by the WW Equity Agreement include all shares of
our common stock and all Exchangeable Shares acquired in exchange for the shares
of Westwind that the parties to the WW Equity Agreement held when we acquired
Westwind (and shares of our common stock received in exchange for Exchangeable
Shares). The shares of stock covered by the WW Equity Agreement are referred to
below as “covered shares.” In this section, Westwind shareholders refers to
those shareholders party to the WW Equity Agreement.
Transfer
Restrictions
. Except as described below, each Westwind
shareholder has agreed, among other things, to maintain sole beneficial
ownership of and not to transfer his or her covered shares until February 7,
2011.
Exceptions to Transfer
Restrictions
. Parties to the WW Equity Agreement generally
would be able to transfer their shares pursuant to demand registration rights
described below under “— Demand Registration Rights” beginning after February 7,
2009, subject to the requirement that from February 7, 2009 until February 7,
2010, no more than 1,401,822 shares of Thomas Weisel Partners common stock may
be sold and from February 7, 2010 to February 7, 2011, no more than 1,401,822
shares may be sold (less the number of shares sold during the preceding one year
period), which we refer to as the public offering limitation. In addition, if we
register any securities for sale in an underwritten public offering, each
Westwind shareholder would have “piggyback registration rights” that would
provide each such shareholder the right to include covered shares consisting of
Thomas Weisel Partners common stock in the registration, subject to specified
exceptions. In addition to customary cutbacks as well as the public offering
limitation set forth above, the Westwind shareholder would not be entitled to
transfer more than twenty percent of his, her or its covered shares during the
twelve month period following the closing date of the transaction.
Our
Underwritten Offering Committee may, acting reasonably, approve requests by a
Westwind shareholder to transfer covered shares to certain permitted transferees
such as family members, family trusts or corporations and certain charitable
organizations; provided that these transferees will be subject to the same
transfer restrictions under the WW Equity Agreement.
In
addition, upon the termination of a Westwind shareholder’s employment due to his
or her death or disability, such Westwind shareholder or his or her heirs or
estate will be permitted to sell covered shares in compliance with applicable
securities laws, regardless of when such termination of employment
occurred.
Notwithstanding
the exceptions to transfer described above, transfer restrictions will not
terminate with respect to covered shares that have been pledged to us as
security in connection with the shareholder covenants described below until
those shareholder covenants expire.
All
transfer restrictions applicable to a Westwind shareholder under the WW Equity
Agreement terminate upon a change in control of us.
Compliance with Securities
Laws
. In addition to the restrictions set forth above,
Westwind shareholders will need to comply with applicable securities laws in
connection with any transfer of Thomas Weisel Partners common stock or
Exchangeable Shares covered by the WW Equity Agreement.
Dividends
. To the
extent dividends are paid on covered shares while the Westwind shareholder
remains subject to the transfer restrictions of the WW Equity Agreement, the
Westwind shareholder will be entitled to such dividends.
Voting
. Each
Westwind shareholder is entitled to full voting rights with respect to his or
her covered shares.
Confidentiality
. Each
Westwind shareholder is required to protect and use “confidential information”
in accordance with the restrictions placed by us on its use and
disclosure.
Noncompetition
. Each Westwind
shareholder has agreed that during his or her employment period and during his
or her applicable post-termination non-compete and non-solicit period, which is
described below, he or she may not:
·
|
form,
or acquire a 5% or greater ownership, voting or profit participation
interest in, any competitive enterprise;
or
|
·
|
associate
with any competitive enterprise and in connection with such association
engage in, or directly or indirectly manage or supervise personnel engaged
in, any activity (i) which is similar or substantially related to any
activity in which that shareholder was engaged, in whole or in part, at
our firm, (ii) for which that shareholder had direct or indirect
managerial or supervisory responsibility at our firm or (iii) which calls
for the application of the same or similar specialized knowledge or skills
as those utilized by that shareholder in his or her activities at our
firm, at any time during the one-year period immediately prior to the date
of termination (or, in the case of an action taken during the employment
period, during the one-year period immediately prior to that
action).
|
When we
refer to a “competitive enterprise,” we are referring to any business enterprise
that engages in, or owns or controls a significant interest in any entity that
engages in, financial services such as investment banking, public or private
finance, financial advisory services, private investing, merchant banking, asset
or hedge fund management, securities brokerage, sales, lending, custody,
clearance, settlement or trading.
A
Westwind shareholder’s applicable post-termination non-compete and non-solicit
period will range from 12 months to 36 months following the date the Westwind
shareholder ceases to be employed by us (with each shareholder required to give
90 days’ notice of termination), with the exact length of the period determined
by the relative seniority of the Westwind shareholder and his or her equity
ownership interest in Westwind prior to the transaction, as well as the length
of the period that has elapsed since the closing of the
transaction.
Nonsolicitation
. Each
Westwind shareholder also has agreed that during his or her employment period
and the applicable post-termination non-compete and non-solicit period, he or
she may not, directly or indirectly, in any manner:
·
|
solicit
any client with whom that Westwind shareholder worked, or whose identity
became known to him or her in connection with his or her employment with
our firm, to transact business with a competitive enterprise or reduce or
refrain from doing any business with our
firm;
|
·
|
interfere
with or damage any relationship between our firm and any client or
prospective client; or
|
·
|
solicit
any of our employees to resign, apply for or accept employment with, any
competitive enterprise.
|
Transfer of Client
Relationships
. Each Westwind shareholder is required, upon
termination of his or her employment, to take all actions and do all things
reasonably requested by us during a 90-day cooperation period to maintain for us
the business, goodwill and business relationships with our clients with which he
or she worked.
Liquidated
Damages
. In the case of any breach of the confidentiality,
noncompetition or nonsolicitation provisions or the provisions related to the
transfer of client relationships during the term of the agreement, the breaching
Westwind shareholder will be liable for liquidated damages. The liquidated
damages amount for each Westwind shareholder will be equal to 50% of the total
amount of consideration paid to that Westwind shareholder in exchange for his,
her or its Westwind shares, less any amount paid to us by that Westwind
shareholder in connection with that shareholder’s indemnification obligation
under the arrangement agreement, other than for certain excluded losses under
the arrangement agreement. The liquidated damages obligation of each Westwind
shareholder generally is secured by Thomas Weisel Partners common stock and
Exchangeable Shares representing 50% of the total amount of consideration
received by that Westwind shareholder in respect of his or her Westwind shares
in connection with the transaction.
Severance
. The WW
Equity Agreement provides that if we terminate a Westwind shareholder without
cause, as defined in the WW Equity Agreement, we would be obligated to pay the
shareholder, in a lump sum, an amount equal to the excess, if any, of (A) the
product of (x) the amount of base salary and bonus paid to that shareholder for
the twelve months ending before notice of termination and (y) the number of
years comprising the then-applicable post-termination and non-compete and
non-solicit period and (z) 0.5, over (B) any severance amounts to which the
shareholder is otherwise entitled either pursuant to an employment agreement,
firm policy or applicable law.
Demand Registration
Rights
. The WW Equity Agreement provides for demand
registration rights. Under those rights, at any time following February 7, 2009,
a Westwind shareholder party to the agreement will be entitled to require us to
effect the registration of all or a portion of that shareholder’s registrable
securities (generally shares of Thomas Weisel Partners common stock issued to a
Westwind shareholder in exchange for his, her or its Westwind shares (including
shares issuable upon exchange of Exchangeable Shares) but not including those
shares of Thomas Weisel Partners common stock that have been sold pursuant to an
effective registration statement or that have been sold pursuant to Rules 145 or
144 under the Securities Act of 1933, as amended, or that may be sold pursuant
to Rule 145(d)(3) or Rule 144(k)). We will not be obligated to effect a demand
registration unless, among other things, the total number of shares of
registrable securities requested to be included in the demand registration is
equal to or greater than 15% of the total number of shares of Thomas Weisel
Partners common stock (including shares deliverable upon exchange of
Exchangeable Shares) issued in connection with the transaction.
We are
not required to effect more than three registrations in response to these demand
registration rights under the agreement in any twelve month period. In addition,
we are not obligated to effect a demand registration within 120 days of a
piggyback registration effected pursuant to the agreement or a demand
registration effected pursuant to our partners’ equity agreement. We may
postpone the filing of a registration statement for up to 90 days if our Board
of Directors determines that it is not in our best interest to disclose any
material non-public information or a significant business opportunity or if,
prior to receiving a demand registration request, we have determined to proceed
with a public offering. We generally will pay expenses, except for underwriters’
discounts and commissions, incurred in connection with the registration rights
under the WW Equity Agreement.
Only
those shareholders that (x) continue to be actively engaged in the business of
our firm, (y) that have suffered a termination of employment by the firm without
cause or resulting from a disability or (z) are permitted transferees will be
entitled to registration rights.
Each
shareholder receiving Exchangeable Shares has or will agree that it may not
exercise its exchange, redemption or similar rights with respect to its
Exchangeable Shares at any time when the exchangeable share registration
statement is not effective, provided that we must maintain the effectiveness of
the exchangeable share registration statement for a minimum of at least 180 days
in each annual period beginning February 7, 2009.
Term and
Amendment
. The WW Equity Agreement will be in effect until the
later of the fifth anniversary of the closing of the transaction and the date
that is six months following the date on which all of the Exchangeable Shares
have been exchanged for Thomas Weisel Partners common stock. A Westwind
shareholder seeking a waiver from the WW Equity Agreement generally requires our
consent, and the WW Equity Agreement may be amended only with approval of our
Board of Directors.
Westwind Pledge
Agreements
Each of
the Westwind shareholders that received Exchangeable Shares or shares of Thomas
Weisel Partners common stock in the transaction has entered into a pledge
agreement with us that will secure the liquidated damages provisions in the WW
Equity Agreement entered into in connection with the Westwind transaction and
the indemnification obligations under the arrangement agreement by a pledge of
an amount of shares of Thomas Weisel Partners common stock or Exchangeable
Shares equal to 50% of the total value of the consideration received by that
shareholder in exchange for his or her Westwind common shares and Class A common
shares. These pledges of Thomas Weisel Partners common stock and/or Exchangeable
Shares will terminate on the earliest to occur of:
·
|
the
death of the relevant shareholder;
|
·
|
the
expiration of the applicable non-compete and non-solicit period described
above;
|
·
|
payment
in cash or other satisfaction by the shareholder of all liquidated
damages; or
|
provided,
that no shares will
be released from the pledge before the first anniversary of the closing of the
transaction.
The
liquidated damages provisions in the WW Equity Agreement are in addition to the
forfeiture of any equity-based awards that may occur as a result of the breach
of any non-competition or non-solicitation provisions contained in those awards.
The liquidated damages and pledge arrangements do not preclude us from seeking
any injunctive relief to which we may be entitled for a breach of the
confidentiality, non-competition, non-solicitation or transfer of client
relationship provisions in the case of a willful or intentional breach that
causes material harm to us.
Compensation Discussion and Analysis
This
compensation discussion and analysis relates to the compensation paid to or
earned by the executive officers listed below for their 2008 service. These
executive officers consist of our principal executive officer, our principal
financial officer and our other three most highly compensated executive officers
who were serving as executive officers on December 31, 2008. In addition, our
former Chief Financial Officer David A. Baylor, who was employed with us during
part of 2008, is also included. As noted above, these officers are collectively
referred to as our “named executive officers” in this proxy
statement.
·
|
Thomas
W. Weisel, our Chairman and Chief Executive
Officer
|
·
|
Lionel
F. Conacher, our President and Chief Operating
Officer
|
·
|
Shaugn
Stanley, our Chief Financial
Officer
|
·
|
David
A. Baylor, our former Chief Financial
Officer
|
·
|
Bradford
Raymond, our Co-Director of Investment
Banking
|
·
|
Anthony
V. Stais, our Head of Trading
|
This
compensation discussion and analysis describes all of the material elements of
our compensation of our named executive officers for their 2008 services and
includes, as it relates to our named executive officers, a discussion of (i) the
objectives of our compensation policies and practices and what they are designed
to reward, (ii) each element of 2008 compensation and why we utilize that
element, (iii) how we determine the amount of each compensation element and (iv)
how each compensation element and our decisions regarding that element fit into
our overall compensation objectives and affect decisions regarding other
elements.
What are the
objectives of our compensation policies and practices for our named executive
officers? What are they designed to reward?
Our
compensation policies and practices for named executive officers are intended
to:
·
|
Incentivize
and reward the achievement of financial and operational performance, while
taking into account the risks associated
therewith;
|
·
|
Align
the interests of our named executive officers and those of our
shareholders; and
|
·
|
Assist
in retaining the employment of our named executive
officers.
|
In
addition, where applicable, our compensation practices take into account factors
other than financial returns and risks, such as adherence to our Code of Conduct
and Ethics and other employee policies.
What are the
elements of 2008 compensation for our named executive officers? Why do we use
these elements?
In 2008
there were seven elements of compensation for our named executive
officers:
·
|
Year-End
Cash Bonus (to be paid in February
2009)
|
·
|
Annual
Equity Incentive Plan Award (granted in February
2008)
|
·
|
Performance-Based
Cash and Stock Awards (granted in June
2008)
|
·
|
Mid-Year
Incentive Program Equity Incentive Plan Awards (granted in August
2008)
|
·
|
Mid-Year
Bonus (granted in August 2008)
|
·
|
Other
Awards and Amounts (including certain termination-related
amounts)
|
Base Salary
. In 2008 all of
our named executive officers received an annual salary payable in equal
installments on a semi-monthly basis.
Year-End Cash
Bonus.
In February 2009 we expect to pay our named executive
officers a year-end cash bonus with respect to their 2008 service. Our
Compensation Committee, at its sole discretion, will determine the amount of
each named executive officer’s year-end cash bonus at the beginning of 2009
based on 2008 performance. Pursuant to the terms of his employment agreement,
Mr. Conacher is guaranteed a minimum bonus of $2.2 million for 2008. The bonus
amounts that are discretionary may be as low as zero or instead be a significant
amount.
Annual Equity Incentive Plan
Award.
In February 2008, at the same time we paid our 2007
year-end cash bonuses, we made retention-based stock awards in the form of
Restricted Stock Units granted pursuant to our Equity Incentive Plan. These
retention-based awards will be earned over a four-year service period that began
on February 8, 2008 and vest in four equal installments on the first, second,
third and fourth anniversaries of the grant date. These Equity Incentive Plan
awards are intended to align the recipients’ interests with those of our
shareholders and to act as a device for retaining the recipients within our
employment during the vesting period. In 2006, 2007 and 2008 we determined to
use Restricted Stock Units as the form of equity award to grant to named
executive officers (as opposed to, for example, option awards) due to the fact
that we believe that Restricted Stock Units directly align the interests of our
named executive officers with our shareholders as well as the fact that
Restricted Stock Units are the form of equity award commonly utilized by
competitors in our industry.
Performance-Based
Awards.
In June 2008, the Compensation Committee determined to
grant short-term performance-based cash and stock awards for a performance
period beginning on April 1, 2008 and ending on December 31, 2008 to certain of
our executive officers, including Messrs. Weisel, Conacher, Raymond and
Stais. Under the terms of the performance-based awards, recipients
are entitled to receive cash and stock awards with an aggregate value based on
the attainment of one or more performance metrics that relate to our adjusted
firm net income or departmental revenues or operating income. A target
performance award was established for each recipient based on achievement of
targeted performance goals with respect to the performance metrics, although (i)
there are no pre-established minimum aggregate award amounts, (ii) awards
amounts will not exceed the target performance award and (iii) award amounts
will vary based on meeting the performance target or underperforming with
respect to the target. The aggregate value of any recipient’s award calculated
in accordance with the terms of the award may be reduced, in the discretion of
the Compensation Committee, by up to 40%.
The
performance metric applicable to Mr. Weisel and Mr. Conacher under their
respective performance-based cash and stock awards was adjusted firm net
income. Adjusted firm net income is defined in the performance-based
awards as the sum of:
·
|
pre-tax
non-GAAP net income for such period calculated by adding to pre-tax net
income for such period (a) non-cash expense for such period associated
with our initial grant of restricted stock units made in connection with
our initial public offering, (b) non-cash expense for such period
associated with the amortization of intangible assets acquired as a result
of our acquisition of Westwind on January 2, 2008, (c) the pre-tax impact
during such period of all other charges for restructuring, extraordinary
items, discontinued operations, non-recurring items and the cumulative
effect of accounting changes required by GAAP and (d) an adjustment amount
of $15 million; and
|
·
|
the
expense associated with similar performance-based awards made to all
executive officers.
|
Adjusted
firm net income is a non-GAAP financial measure whose nearest comparable GAAP
measure is pre-tax net income.
Mr.
Raymond’s award was based on adjusted firm net income and investment banking
operating income. Investment banking operating income refers to
revenue generated by and/or allocated to the investment banking department
during the performance period, less expenses incurred by the investment banking
department (such as transaction costs, market data costs and other costs that
are controllable by the investment banking department), but not including firm
overhead costs allocable to the investment banking department.
Mr.
Stais’ award was based on adjusted firm net income and equities operating
income. Equities operating income refers to revenue generated by
and/or allocated to the research, trading and sales departments during the
performance period less expenses incurred by such department (such as
clearing costs, transaction costs, market data costs and other costs that are
controllable by such department), but not including firm overhead costs
allocable to such departments.
Our
Compensation Committee determined to provide the performance-based cash and
stock awards to better align the compensation of those executives, including
Messrs. Weisel, Conacher, Raymond and Stais, with the performance of those
aspects of our company over which they have responsibility. In the
case of Messrs. Weisel and Conacher, we determined to tie their respective
performance-based awards to adjusted firm net income, as we believe that measure
provides an indicator of our ability to generate returns on our operations and
fund future growth. With respect to Messrs. Raymond and Stais, we
determined to base their respective performance-based awards in part on adjusted
firm net income, in order to tie part of their respective awards to the broader
performance of our company, as well as in part on investment banking operating
income, in the case of Mr. Raymond, and equities operating income, in the case
of Mr. Stais, to tie part of their respective awards to the financial
performance of the portions of our company over which each has primary
responsibility.
The
performance-based awards will be paid in the form of cash and Restricted Stock
Units or a functionally equivalent equity award with an aggregate value of the
total performance award. The portion of the award to be paid in Restricted Stock
Units (and the terms and method of valuing such Restricted Stock Units for such
purpose) will be determined in the same manner as approved by the Compensation
Committee with respect to 2008 year-end cash bonuses and Annual Equity Incentive
Awards, subject to the Compensation Committee’s ability to utilize a different
manner of allocation in the event that the Compensation Committee determines
that there is not sufficient common stock capacity within the Equity Incentive
Plan at the date the performance award vests. As of November 30,
2008, we do not believe that any of the performance targets will not be met and
that no performance award will be earned by any of the individuals named
above.
Mid-Year Incentive Program Equity
Incentive Plan Awards.
In August 2008, our Compensation
Committee determined to grant both long-term, performance-based and
retention-based stock awards in the form of Restricted Stock Units pursuant to
our Equity Incentive Plan. This mid-year incentive program was
designed to provide incentives to certain of our executive officers and other
employees to remain at the company during an unprecedented time in the
investment banking industry and to better align their compensation with specific
mid-term company performance goals.
Pursuant
to the terms of the performance-based awards, recipients’ awards will vest on
the third anniversary of the grant date if all or a combination of the following
performance criteria are fully or partially satisfied for the 12-month
performance period of July 1, 2010 through June 30, 2011: average GAAP revenue
per employee of zero to $1,000,000; GAAP net income margin of 0% to 10%; and
GAAP return on equity of 0% to 20%. Each award vests one-third with respect to
each performance measure, with the amount of the award vesting with respect to
each performance measure equal to the percentage satisfaction of the particular
measure. The named executive officers receiving
performance-based awards under this portion of the program were Shaugn Stanley –
75,000 units; Bradford Raymond – 125,000 units; and Anthony Stais – 75,000
units.
Pursuant
to the terms of the retention-based awards, recipients’ awards are subject only
to time vesting. These awards will be earned over a three-year
service period that began in August 2008 and vest on August 6,
2011. The named executive officers receiving retention-based awards
under this portion of the program were Bradford Raymond – 25,000 units and
Anthony Stais – 25,000 units.
Mid-Year Bonus.
In
August 2008, we made mid-year bonus payments in the form of Restricted Stock
Units granted pursuant to our Equity Incentive Plan to certain of our officers
and employees, including Mr. Conacher pursuant to the terms of his employment
agreement. The mid-year bonus payment made to Mr. Conacher is in
partial satisfaction of his guaranteed 2008 bonus. The mid-year bonuses were
implemented, in part, to facilitate the transition to the firm’s compensation
regime of former Westwind employees, who previously received quarterly bonus
awards under Westwind’s compensation regime. These awards will be
earned over a three-year service period that began in August 2008 and vest in
three equal installments on the first, second and third anniversaries of the
grant date.
Other Awards and
Amounts.
We provided benefits to our named executive officers,
which included paying certain term life insurance premiums, medical, dental and
vision plan premiums and long-term/short-term disability insurance premiums. In
addition, in connection with his departure, we made a lump sum payment to Mr.
Baylor.
On
January 2, 2008 we announced the completion of our acquisition of Westwind and
announced that, in connection with the integration of Westwind, we would more
closely align the compensation practices of Thomas Weisel Partners and Westwind
with one another and with industry practice by discontinuing the payment of
mid-year retention bonuses. As a result, we accelerated the payment of amounts
that would have been paid in July 2008 as mid-year cash retention bonuses to
become part of our 2007 year-end cash bonuses. As a result of this acceleration,
the compensation amounts reported for 2007 included, in addition to the 2007
year-end cash bonuses that would otherwise have been paid, both (i) the mid-year
cash retention bonus paid in July 2007 and (ii) the accelerated payment of
amounts that would have been paid in July 2008 as a mid-year cash retention
bonus (and that would have been reported in 2008 compensation) had we not
discontinued our practice of paying mid-year retention bonuses.
In
February 2008, we paid 2007 year-end cash bonuses to certain employees who
joined the firm in January 2008 as a result of the Westwind transaction,
including Mr. Conacher. The amounts paid were equal to the amount
that such employees would have received from Westwind as a 2007 year-end
bonus.
How do we
determine the amount of each compensation element for our named executive
officers?
Base Salary.
As a
general matter we pay a $200,000 annual salary to each of our executive officers
and each of our named executive officers is a party to an employment agreement
with us specifying a $200,000 annual base salary. Further information regarding
these employment agreements is set forth above under “—Executive Officer
Employment and Other Agreements.” Our practice has been, and continues to be,
that with respect to our Chief Executive Officer and other executives, base
salary should, in a normal economic environment, constitute only a moderate
portion of their overall compensation, while performance-based bonuses and
Equity Incentive Plan awards should, in a normal economic environment,
constitute the most significant portion of annual compensation.
Year-End Cash
Bonus.
We manage our aggregate compensation and benefits
expense in relation to our net revenues (excluding investment gains and losses
attributable to investments in partnerships and other securities), our available
cash and the need to retain key employees.
Our
effort to balance the competing demands of retaining key employees by rewarding
performance, preserving the firm’s cash and maintaining an appropriate ratio of
compensation and benefits expense to our net revenue is the most significant
factor in determining the aggregate amount of the year-end bonuses we will pay
to our employees, including our named executive officers, with respect to
service in 2008.
Certain
2008 compensation and benefits expense will not be subject to a year-end
discretionary determination, for example:
·
|
base
salary amounts agreed at the beginning of or during 2008 and paid
throughout the course of 2008;
|
·
|
formula-
and commission-based amounts agreed at the beginning of or during 2008,
including target amounts payable under our performance-based cash and
stock awards;
|
·
|
guaranteed
compensation amounts agreed to at the beginning of or during 2008 in
connection with hiring or retaining specified
individuals;
|
·
|
discretionary
compensation amounts paid prior to the end of 2008 which, as a result,
were non-discretionary as of the end of
2008;
|
·
|
equity
award expense for equity awards granted prior to the end of 2008;
and
|
We will
take into account aggregate amounts attributable to year-end non-discretionary
amounts in determining the aggregate amount available for discretionary 2008
year-end bonus payments for all officers and employees. This aggregate amount
will be one of the significant factors that impacts the amount of year-end bonus
we determine to pay to our named executive officers. With respect to our named
executive officers, in 2008 the only year-end non-discretionary compensation and
benefits expenses were (i) base salary expense, (ii) equity award expense for
equity awards granted prior to the end of 2008, (iii) benefits expense; (iv)
certain amounts paid to Mr. Baylor; and (v) certain guaranteed bonus expenses
payable to Mr. Conacher.
In
addition to the aggregate amount available for discretionary 2008 year-end bonus
payments, we take several other factors into consideration in determining the
amount of discretionary year-end bonus payments to each of our professionals,
including our named executive officers. Our compensation consultants, Towers
Perrin, will provide our management and our Compensation Committee with
information regarding compensation practices at competitors of ours (as
described below). This analysis assists management and our Compensation
Committee in understanding the competitive marketplace for the talent that we
believe is critical for our success.
With
respect to our named executive officers, our Compensation Committee reviews
management- and consultant-prepared analyses in ratifying year-end bonus
amounts. With respect to each of the members of our executive committee, which
includes all of our named executive officers, except for Mr. Baylor, our
compensation consultant, Towers Perrin, will provide information regarding
compensation of comparable executives at competitor firms. In addition, with
respect to our Chief Executive Officer, during 2008 our Compensation Committee
together with management and our compensation consultant, developed a set of
financial and non-financial metrics to utilize as one factor in evaluating his
2008 performance, although specific targets were not established in advance. The
financial metrics included: net revenue, pre-tax income, shareholder return,
return on equity, earnings per share and market share and other investment
banking league table metrics. The non-financial metrics included: strategic
goals, resource management, growth and maintenance of our brand, vision and
culture and certain tactical matters. Finally, the history of our firm as a
partnership and the integrated nature of all of our business activities were
taken into account. Following the determination of 2008 year-end bonuses, we
will provide additional disclosure regarding the determination of those amounts
in our Proxy Statement relating to our Annual Meeting of Stockholders for
2009.
As
described above, our management and our Compensation Committee have each
utilized the services of Towers Perrin. Towers Perrin is a management consulting
firm focused on providing global advisory and data services to the financial
services industry and their professionals are experienced in acting as outside
consultants to financial services firms and also have in-house experience with
various financial services firms. Our decision and our Compensation Committee’s
decision to utilize Towers Perrin in 2008 were each based on Towers Perrin's
experience and expertise as well as the experience of our management in
utilizing Towers Perrin's services in the past.
Annual Equity Incentive Plan
Award.
Annual Equity Incentive Plan awards are intended to
align the recipients’ interests with those of our shareholders and to act as a
device for retaining the recipients within our employment during the vesting
period. We take several factors into consideration in determining the amount of
each recipient’s annual Equity Incentive Plan award, including individual
performance, our financial results and competitive factors. Our compensation
consultants, Towers Perrin, provided our management and our Compensation
Committee with information regarding compensation practices at competitors of
ours. This information assists management and our Compensation Committee in
understanding the competitive marketplace for the talent that we believe is
critical for our success. Given that our Compensation Committee has the
opportunity to interact with our compensation consultant, Towers Perrin,
independent of management and that our compensation consultant and its
affiliates do not perform a significant amount of services for us that are not
related to advising us and our Board of Directors regarding compensation
practices, our Compensation Committee did not determine that it was necessary to
retain an additional compensation consultant that would exclusively report to
the Compensation Committee.
Performance-Based
Awards.
As described above, Mr. Weisel and Mr. Conacher’s June
2008 performance-based awards are based on adjusted firm net income, Mr.
Raymond’s performance-based award is based on adjusted firm net income and
target investment banking operating income and Mr. Stais’ performance-based
award is based on adjusted firm net income and target equities operating income.
The target adjusted firm net income for Messrs. Weisel and Conacher for the
April 1, 2008 to December 31, 2008 performance period is
$19,849,000. The target adjusted firm net income for Mr. Raymond for
the April 1, 2008 to December 31, 2008 performance period is $19,849,000 and the
target investment banking operating income is $33,195,000. The target
adjusted firm net income for Mr. Stais for the April 1, 2008 to December 31,
2008 performance period is $19,849,000 and the target equities operating income
is $35,351,000. In establishing the target performance metrics for
each of Messrs. Weisel, Conacher, Raymond and Stais, the Compensation Committee
sought to choose targets that were aligned with the our 2008 firm-wide plan and
that were reasonably attainable during the performance period. In
determining the amount of each award, the Compensation Committee took into
account each executive officer’s overall expected compensation package, the
portion of the executive officer’s total compensation that is expected to be in
cash and the portion that is expected to be in the form of equity, the vesting
schedule of each executive officer’s outstanding equity.
As
described above, although award amounts may not exceed the target performance
award, they could be lower based on a failure to meet the target performance
measure or in the event the Compensation Committee exercises its discretion to
reduce the amount of the award by up to 40%. In particular, the
amount of Mr. Weisel’s actual award is equal to 14.107% of net adjusted income
for the performance period, subject to the Compensation Committee’s discretion
to reduce the amount of the award by up to 40%, and with a maximum amount
payable equal to $2,800,000. Mr. Conacher’s actual award is also
equal to 14.107% of net adjusted income for the performance period, subject to
the Compensation Committee’s discretion to reduce the amount of the award by up
to 40%, and with a maximum amount payable equal to $2,800,000. Under
the terms of Mr. Conacher’s performance-based award, Mr. Conacher would be
entitled to receive cash and stock awards only in the event that such amounts
exceeded his 2008 guaranteed bonus. Mr. Raymond’s actual award is
equal to the sum of 2.141% of net adjusted income for the performance period
plus 1.28% of investment banking operating income for the performance period,
subject to the Compensation Committee’s discretion to reduce the amount of the
award by up to 40%, and with a maximum amount payable equal to $850,000. Mr.
Stais’ actual award is equal to the sum of 2.015% of net adjusted income for the
performance period plus 1.132% of equities operating income for the performance
period, subject to the Compensation Committee’s discretion to reduce the amount
of the award by up to 40%, and with a maximum amount payable equal to
$800,000. In exercising its discretion to reduce the amount of an
award, it is expected that the Compensation Committee would take into account
the individual performance of an individual, as well as the historical and
expected future performance of the company and the amounts available for
compensation of other executive officers and employees, among other
things.
Mid-Year Incentive Program Equity
Incentive Plan Awards.
In choosing the specific performance
measures and ranges of performance goals under the August 2008 incentive
program, the Compensation Committee chose ranges that it believed to be
reasonably attainable during the 2010 and 2011 performance period. In
determining the amount of awards to be provided to each executive officer under
the incentive program, the Compensation Committee reviewed each executive
officer’s outstanding equity awards and vesting schedules, whether and to what
extent the executive had participated in the June 2008 performance-based
awards. The Compensation Committee also considered compensation
practices at competitors of ours, as described above.
Mid-Year Bonus
. As
described above, we made mid-year bonuses, in part, to assist in the transition
of former Westwind employees, including Mr. Conacher, to our compensation
regime. Westwind had historically paid quarterly bonuses while we
have historically relied on year-end bonuses to compensate our
employees. Once the integration of Westwind has been completed, we
anticipate that the mid-year bonus will be discontinued.
Other Awards and
Amounts.
We have historically provided a benefit to certain
executive officers, including our named executive officers, of paying certain
term life insurance premiums, medical, dental and vision plan premiums and
long-term/short-term disability insurance premiums. In 2008 we continued this
practice, as we believe that these are customary benefits provided to senior
officers of companies like ours and these aspects of compensation are not
material in relation to overall compensation paid to named executive
officers.
How does each
compensation element and our decisions regarding that element fit into our
overall compensation objectives and affect decisions regarding other
elements?
Overall,
each of our compensation elements affects decisions regarding other compensation
elements due to the fact that, as described above, in 2008 our efforts with
respect to compensation and benefits expense was to balance the competing
demands of retaining key employees by rewarding performance, preserving the
firm’s cash and maintaining an appropriate ratio of compensation and benefits
expense to our net revenues. One result of this policy is that the
decision to pay compensation in the form of one of our compensation elements
often reduces the amount available to be paid under other compensation elements
and, therefore, our decisions with respect to any one compensation element
necessarily effect decisions regarding other compensation elements.
Base Salary.
Our
decision to maintain base salaries for our named executive officers at $200,000
per annum fits into our overall compensation objectives because it results in
bonus payments being the majority of annual compensation paid to each named
executive officer. This has the effect of making most of the annual compensation
paid to named executive officers in a normal economic environment highly
dependent on the factors that we utilize in determining bonuses, such as our
overall financial and operational performance.
Year-End
Bonus.
Numerous factors affect our decisions regarding
year-end bonuses. The most significant factors, however, are an individual’s
performance balanced against our financial performance and the compensation
practices of our competitors. As a result, our decisions regarding year-end
bonuses fit into our overall compensation objectives by being an incentive and
reward for achieving financial and operational performance and by aligning the
interests of our named executive officers with those of our
shareholders.
Annual Equity Incentive Plan
Award.
As in the case with our year-end bonus numerous factors
affect our decisions regarding annual Equity Incentive Plan awards. The most
significant factors, however, are our financial performance, the compensation
practices of our competitors and the importance of retaining key professionals.
As a result, our decisions regarding annual Equity Incentive Plan awards fit
into our overall compensation objectives by not only acting as a device for
retaining the recipients within our employment during the vesting period, but
also by being an incentive and reward for achieving financial and operational
performance and by aligning the interests of our named executive officers with
those of our shareholders.
Performance-Based
Awards
. Numerous factors affected our decisions to make
performance-based awards to Messrs. Weisel, Conacher, Raymond and Stais in June
2008. The most significant factors, however, were our financial
performance, the compensation practices of our competitors and the importance of
retaining and incentivizing key professionals by aligning their compensation
with the performance of those aspects of our company which they have
responsibility.
Mid-Year Incentive Program Equity
Incentive Plan Awards. Numerous factors affected our decisions
regarding the mid-year incentive
program Equity Incentive Plan
Awards. The most significant factors were the need to retain and
incentive our executive officers in certain functional areas, especially in
light of events impacting our industry, compensation practices of our
competitors, and our financial performance.
Mid-Year
Bonus
. Numerous factors affect our decisions regarding
mid-year bonuses. The most significant factors, however, are an individual’s
performance balanced against our financial performance. As described
above, in general mid-year bonuses are a transitional accommodation to former
Westwind employees as they migrate to our compensation regime
Compensation Committee Report
The
members of the Compensation Committee have reviewed and had the opportunity to
discuss with management the Compensation Discussion and Analysis set forth above
and have unanimously recommended to the Board of Directors that the Compensation
Discussion and Analysis be included in this proxy statement.
Members of the Compensation
Committee
: Mr. Barger (Chairman), Mr. Koogle and Mr. Irby.
OTHER MATTERS
Other Business
The Board of Directors does not
currently intend to bring any other business before the Special Meeting and, to
the knowledge of the Board of Directors, no other matters other than those
indicated above are to be brought before the Special Meeting. If,
however, any other matter properly comes before the Special Meeting, the proxy
holders will, in their discretion, vote on it in accordance with their own best
judgment.
Shareholder Proposals for 2009 Annual Meeting of
Shareholders
Shareholders
who, in accordance with the SEC’s Rule 14a-8, wish to present proposals for
inclusion in the proxy materials to be distributed by us in connection with our
2009 Annual Meeting of Shareholders must have submitted their proposals to our
Secretary on or before December 12, 2008. As the rules of the SEC make clear,
simply submitting a proposal does not guarantee its inclusion.
In
accordance with Section 1.11(b) of our By-Laws, for a matter not included in our
proxy materials to be properly brought before the 2009 Annual Meeting of
Shareholders, a shareholder’s notice of the matter the shareholder wishes to
present must be delivered to our Secretary & General Counsel at One
Montgomery Street, 37th Floor, San Francisco, California 94104 as
follows:
(i) If
the 2009 Annual Meeting is scheduled to take place within 30 days before or
after the first anniversary date of the 2008 Annual Meeting, such notice shall
be delivered not less than 90 days nor more than 120 days prior to the first
anniversary date of the 2008 Annual Meeting;
(ii) If,
and only if, the 2009 Annual Meeting is not scheduled to take place within 30
days before or after the first anniversary date of the 2008 Annual Meeting, such
notice shall be delivered before the close of business on the later of (a) the
date ninety days prior to the date of the 2009 Annual Meeting or (b) the tenth
day following the date on which the date for the 2009 Annual Meeting is first
publicly announced or disclosed.
Assuming
that the 2009 Annual Meeting occurs within 30 days before or after the first
anniversary date of the 2008 Annual Meeting, any such notice given by or on
behalf of a shareholder pursuant to these provisions of our By-Laws (and not
pursuant to SEC’s Rule 14a-8) must be received no earlier than January 19, 2009
and no later than February 18, 2009.
Important Notice Regarding Availability of Proxy Materials
for the Shareholder Meeting to be Held on February 9, 2009
Pursuant
to new SEC rules, we have elected to provide access to our proxy materials by
sending you this full set of proxy materials and by notifying you of the
availability of our proxy materials on the Internet.
Copies of this proxy statement and
the form of proxy are available at our website at
www.tweisel.com
and upon written request and without
charge to any shareholder by writing to: General Counsel, One Montgomery Street,
Suite 3700, San Francisco, California 94014.
For directions on how to
attend the meeting and vote in person, please contact our General Counsel’s
Office at Thomas Weisel Partners Group, Inc., One Montgomery Street, San
Francisco, CA 94104 or by telephone at (415) 364-2500.
Householding
The SEC
has adopted rules that permit companies and intermediaries (such as banks and
brokers) to satisfy the delivery requirements for proxy statements with respect
to two or more stockholders sharing the same address by delivering a single
proxy statement addressed to those stockholders. This practice, known as
“householding,” is designed to reduce the volume of duplicate information and
reduce printing and postage costs.
If you
and others who share your mailing address own our common stock in street name,
meaning through bank or brokerage accounts, you may have received a notice that
your household will receive only one proxy statement from each company whose
stock is held in such accounts. Unless you responded that you did not want to
participate in householding, you were deemed to have consented to it and a
single copy of our proxy statement has been sent to your address.
We will
promptly deliver separate copies of our proxy statement at the request of any
stockholder who is in a household that participates in the householding of our
proxy materials. You may send your request (or a request to have only a single
copy of our proxy statement delivered to your address) by mail to our General
Counsel’s office at Thomas Weisel Partners Group, Inc., One Montgomery Street,
San Francisco, CA 94104 or by telephone at (415) 364-2500.
By Order
of the Board of Directors,
Mark P.
Fisher
Secretary
January
5, 2009
ANNEX A
Proposed
Third Amended and Restated
Thomas
Weisel Partners Group, Inc. Equity Incentive Plan
Section
1.
Purpose.
The
purposes of this Equity Incentive Plan (the “PLAN”) are to attract, retain and
motivate key employees and directors of and consultants and advisors to Thomas
Weisel Partners Group, Inc. (the “COMPANY”) and its Subsidiaries and Affiliates
and to align the interests of key employees, directors, consultants and advisors
with shareholders with equity-based compensation and enhanced opportunities for
ownership of shares of the Company’s common stock.
Section
2.
Definitions
. The
following terms used in the Plan and any agreement entered into pursuant to the
Plan shall have the meaning set forth below:
“AFFILIATE”
means (i) any Person that directly, or through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Company or
(ii) any entity in which the Company has a significant equity interest, as
determined by the Committee.
“AWARD”
means any Option, award of Restricted Stock or Restricted Stock units,
Performance Award, Other Stock-Based Award, or any other right, interest or
grant relating to Shares or other property granted pursuant to the
Plan.
“AWARD
AGREEMENT” means any written agreement, contract or other instrument or document
evidencing any Award, which may, but need not be (as determined by the
Committee) executed or acknowledged by a Participant as a condition to receiving
an Award or the benefits under an Award.
“BOARD”
or “BOARD OF DIRECTORS” means the Board of Directors of the
Company.
“CHANGE
IN CONTROL” means
(a) the
consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Company or the sale or other
disposition of all or substantially all of the assets of the Company to an
entity that is not an affiliate that, in each case, requires shareholder
approval under the laws of the Company’s jurisdiction of organization, unless
immediately following such transaction: (i) more than 50% of the total voting
power of the surviving entity or the entity that directly or indirectly has
beneficial ownership of 95% of the voting securities eligible to elect directors
of the surviving entity (a “Parent Entity”), if applicable, is represented by
securities of the Company that were outstanding immediately prior to the
transaction (or securities into which the Company’s securities were converted or
exchanged in such transaction) and such voting power among the holders thereof
is in substantially the same proportion as the voting power of such securities
among the holders thereof immediately prior to such transaction; (ii) no person
(other than any employee benefit plan (or any related trust) sponsored or
maintained by the surviving entity or the Parent Entity), is or becomes the
beneficial owner, directly or indirectly, of securities of the Parent Entity
(or, if there is no Parent Entity, the surviving entity) representing 20% of the
total voting power of the securities then outstanding generally eligible to vote
for the election of directors of the Parent Entity (or, if there is no Parent
Entity, the surviving entity); and (iii) at least a majority of the members of
the board of directors (including directors whose election or nomination was
approved by at least two-thirds of the incumbent directors of the Board) of the
Parent Entity (or, if there is no Parent Entity, the surviving entity) were
members of the Board at the time of the Board’s approval of the execution of the
initial agreement providing for the transaction;
(b) any
event that results in the directors of the Board as of the effective date of the
Plan (including directors whose election or nomination was approved by at least
two-thirds of the incumbent directors of the Board) failing to constitute at
least a majority of the Board; or
(c) the
shareholders of the Company approve a plan of complete liquidation or
dissolution of the Company;
provided, however, that for purposes of
(a)(iii) and (b) above no individual initially elected or nominated as a
director of the Board as a result of an actual or threatened election contest
with respect to directors or as
a result of any other actual or
threatened solicitation of proxies or consents by or on behalf of any person
other than the Board shall be included in the calculation of
incumbency.
Notwithstanding
(a)(ii) above, a Change in Control shall not be deemed to occur solely because
any person acquires beneficial ownership of more than 20% of the total voting
power of securities then outstanding generally eligible to vote for the election
of directors of the Parent Entity (or, if there is no Parent Entity, the
surviving entity) as a result of the acquisition of securities by the Company
which reduces the number of such securities outstanding; provided,
that
if after such
acquisition by the Company such person becomes the beneficial owner of
additional securities then outstanding generally eligible to vote for the
election of directors of the Parent Entity (or, if there is no Parent Entity,
the surviving entity) that increases the percentage of such securities
beneficially owned by such person, a Change in Control of the Company shall then
occur.
“CODE”
means the Internal Revenue Code of 1986, as amended.
“COMMITTEE”
means the Compensation Committee of the Board, or any successor to such
committee, or any other committee of our Board appointed or designated by the
Board, in each case, composed of no fewer than two directors each of whom is a
“non-employee director” within the meaning of Rule 16b-3 of the Securities
Exchange Act of 1934, as amended, and an “outside director” within the meaning
of Section 162(m) of the Code and the regulations promulgated
thereunder.
“COVERED
EMPLOYEE” means an individual who is both (i) a “covered employee” within the
meaning of Section 162(m)(3) of the Code, or any successor provision thereto and
(ii) expected by the Committee to be the recipient of compensation (other than
“qualified performance based compensation” as defined in Section 162(m) of the
Code) in excess of $1,000,000 for the tax year of the Company with regard to
which a deduction in respect of such individual’s Award would be
allowed.
“DISABILITY”
means the disability of a Participant (i) such that the Participant is
considered disabled under any long term disability plan of the Company, or
otherwise (ii) as determined by the Committee in its sole
discretion.
“ELIGIBLE
PERSON” means any full time or part time employee (including an officer or
director who is also an employee), consultant or advisor of the Company or any
Affiliate selected by the Committee. Other than for awards of Incentive Stock
Options, “Eligible Person” shall also include any individual to whom an offer of
employment has been extended, a member of the Board or a member of the board of
directors of a Subsidiary. References to “employment” and related terms in the
Plan shall include the provision of services in any capacity.
“FAIR
MARKET VALUE” means, with respect to a Share as of any date, (i) the closing
sale price per Share, as reported on NASDAQ, or, if different, the principal
securities exchange or market on which the Shares are then traded, on such date,
or, if no sale of Shares is reported for that date, on the last preceding date
on which there was a sale of Shares on NASDAQ or such principal securities
exchange or market and (ii), if the Shares are not then traded on any securities
exchange or market, the fair market value thereof as determined in good faith by
the Committee.
“INCENTIVE
STOCK OPTION” means any Option that is intended to qualify for special federal
income tax treatment pursuant to Sections 421 and 422 of the Code (or a
successor provision thereof) and which is so designated in the applicable Award
Agreement. Under no circumstances shall any Option that is not specifically
designated as an Incentive Stock Option be considered an Incentive Stock
Option.
“INITIAL
PUBLIC OFFERING” means the consummation of initial offering of Shares of the
Company to the public.
“NON-QUALIFIED
STOCK OPTION” means an Option that is not an Incentive Stock
Option.
“OPTION”
means an option to purchase a Share or Shares granted under the
Plan.
“OTHER
STOCK-BASED AWARD” means an Award granted pursuant to Section 9 of the
Plan.
“PARTICIPANT”
means a person who has been granted an Award under the Plan which remains
outstanding, including a person who is no longer an Eligible
Person.
“PERFORMANCE
AWARD” means an Award granted pursuant to Section 10 of the Plan.
“PERFORMANCE
PERIOD” means the period of at least nine months established by the Committee at
the time any Performance Award is granted or at any time thereafter during which
any performance goals specified by the Committee with respect to such Award are
measured.
“PERSON”
means an individual, corporation, partnership, association, trust, limited
liability company or any other entity or organization, including a government or
political subdivision or an agency, unit or instrumentality
thereof.
“RESTRICTED
STOCK” means an award of shares which are subject to certain
restrictions.
“RETIREMENT”
means termination of employment on or after the date the Participant has (i)
attained age 65 and completed at least six years of service following the
Company’s Initial Public Offering or (ii) completed at least twenty years of
service with the Company or its predecessors; provided that with respect to
Awards granted prior to May 23, 2007 “Retirement” means termination of
employment on or after the date the Participant has (i) attained age 65 and
completed at least two years of service following the Company’s Initial Public
Offering or (ii) completed at least twelve years of service with the Company or
its predecessors.
“SHARE”
means a share of common stock of the Company, par value $0.01.
“SUBSIDIARY”
means a corporation, limited liability company, partnership or other entity
where 50% or more of its outstanding voting securities or other equity interests
is owned directly or indirectly by the Company at the time an Award is issued
under the Plan.
“SUBSTITUTE
AWARD” means an Award granted in assumption of, or in substitution for, an
outstanding equity award previously granted by a business or entity all or a
portion of which is acquired by the Company or any Affiliate or with which the
Company or an Affiliate combines.
Section
3.
Administration
. (a)
The Plan will be administered by the Committee. Subject to and consistent with
the provisions of the Plan, the Committee will have full power and authority, in
its discretion, and without limitation, to: (i) select Eligible Persons to
become Participants; (ii) determine the type and number of Awards to be granted
to each Participant; (iii) determine the number of Shares to be covered by each
Award; (iv) determine the dates on which Awards may be exercised and on which
the risk of forfeiture or deferral period relating to Awards shall lapse or
terminate, and the acceleration of any such dates; (v) determine the expiration
date of any Award; (vi) determine whether, to what extent, and under what
circumstances an Award may be settled, or the exercise price of an Award may be
paid, in cash, Shares, other Awards, or other property or canceled, forfeited or
suspended and the method or methods by which an Award may be settled, canceled,
forfeited or suspended; (vii) determine any other terms and conditions of, and
all other matters relating to, Awards; (viii) prescribe Award Agreements (such
Award Agreements need not be identical for each Participant) and amendments
thereto; (ix) construe, interpret and implement the Plan and the respective
Award Agreements entered into pursuant to the Plan; (x) correct any defect,
supply any omission and reconcile any inconsistency in the Plan; and (xi) make
all other determinations necessary or advisable for administering the Plan. All
decisions and determinations of the Committee with respect to the administration
and interpretation of the Plan shall be final, conclusive, and binding upon all
persons interested in the Plan, including Participants, beneficiaries, and other
persons claiming rights from or through a Participant, and
shareholders.
(b) To the fullest extent permitted by
law, each member and former member of the Committee and each person to whom the
Committee delegates or has delegated authority under this Plan shall have no
liability to any Person for any action taken, failure to act or determination
made in good faith with respect to this Plan or an Award and shall be entitled
to indemnification by the Company against and from any loss, liability,
judgment, damage, cost (including attorneys’ fees) and reasonable expense
incurred by such member, former member or other person by reason of any action
taken, failure to act or determination made in good faith under or with respect
to this Plan or an Award. The foregoing right of indemnification shall not be
available to such Committee member or delegate to the extent that a court of
competent jurisdiction in a final judgment or other final adjudication, in
either case, not subject to further appeal, determines that the acts or
omissions of him or her giving rise to the indemnification claim resulted from
such person’s bad faith, fraud or willful criminal act or omission. The
foregoing right of indemnification shall not be exclusive of any other rights
of
indemnification to
which such Committee member or delegate may be entitled under the Company’s
Certificate of Incorporation or By-laws, as a matter of law, or otherwise, or
any other power that the Company may have to indemnify such persons or hold them
harmless.
Section
4.
Shares Subject to the
Plan
. (a) Shares to be issued under the Plan may consist, in whole or in
part, of authorized and unissued Shares, treasury Shares, Shares purchased by
the Company in the open market, Shares purchased in the open market by one or
more trusts established for the benefit of Participants or otherwise. Subject to
adjustment made in accordance with Section 12 of the Plan, the maximum number of
Shares that may be issued under the Plan will not exceed 17,150,000 Shares.
Notwithstanding the foregoing and subject to adjustment as provided in Section
12 of the Plan, no Covered Employee may be granted Awards under the Plan in any
calendar year that relate to more than 1,000,000 Shares. The Committee may
direct that any stock certificate evidencing Shares issued pursuant to the Plan
shall bear a legend setting forth such restrictions on transferability as may
apply to such Shares pursuant to the Plan.
(b)
Shares subject to an Award (other than a Substitute Award) that is canceled,
expired, forfeited, settled in cash or otherwise terminated without a delivery
of Shares to the Participant will again be available for Awards, and Shares
withheld in payment of the exercise price or taxes relating to an Award and
Shares equal to the number surrendered in payment of any exercise price or taxes
relating to an Award shall be deemed to constitute Shares not delivered to the
Participant and shall be deemed to again be available for Awards under the Plan.
Shares underlying Substitute Awards shall not reduce the number of Shares
available for delivery under the Plan.
Section
5.
Eligibility
. Awards
may be granted only to Eligible Persons who are selected to be Participants by
the Committee in accordance with the provisions of the Plan. Holders of
equity-based awards granted by a business or entity all or a portion of which is
acquired by the Company or any Affiliate or with which the Company or an
Affiliate combines are eligible to receive Substitute Awards
hereunder.
Section
6.
Options
. The
Committee is authorized to grant Options to Participants on the following terms
and conditions and with such additional terms and conditions, not inconsistent
with the provisions of the Plan, as the Committee shall determine in its sole
discretion.
(a)
Exercise Price
. The exercise
price of each Option granted under the Plan shall be determined by the Committee
and shall not be less than the Fair Market Value of a Share on the date of grant
of such Option and, once determined and established, shall not be changed or
reset by the Committee, except as provided in Section 12 of this
Plan.
(b)
Term and Termination of
Options
. The term of each Option, together with the effect of termination
of employment or service by a Participant on such term, will be determined by
the Committee, but in no event will an Option be exercisable, either in whole or
in part, after the expiration of ten years from the date of grant of such
Option.
(c)
Exercise of Option
. Each
Option shall be exercisable at such times and subject to such terms and
conditions as the Committee may, in its discretion, specify in the applicable
Award Agreement or thereafter (subject to the rights of a Participant provided
under Section 17 hereof); provided that each Option granted after the date of
the Initial Public Offering to any Participant (i) that is not a non-employee
director of the Company shall become exercisable and vested ratably (on a
monthly, quarterly, annual or other basis as (as the Committee may determine))
over no less than a period of three years and (ii) that is a non-employee
director of the Company shall become exercisable and vested ratably (on a
monthly, quarterly, annual or other basis as (as the Committee may determine))
over no less than a period of three years, unless such Option is granted as part
of such non-employee director’s regular annual compensation paid in accordance
with the Company’s director compensation policy. Unless the applicable Award
Agreement otherwise provides, an Option may be exercised from time to time as to
all or part of the shares as to which such Award is then exercisable (but, in
any event, only for whole shares).
Section 7.
Incentive Stock
Options
. In accordance
with rules and procedures established by the Committee, the aggregate Fair
Market Value (determined as of the time of grant) of the Shares with respect to
which Incentive Stock Options held by any Participant which are exercisable for
the first time by such Participant
during any calendar year under the Plan
(and under any other benefit plans of the Company or any Subsidiary) shall not
exceed $100,000 or, if different, the maximum limitation in effect at the time
of grant under Section 422 of the Code, or any successor provision, and any
regulations promulgated thereunder. Incentive Stock Options shall be granted
only to participants who are employees of the Company or a Subsidiary of the
Company, but, to the extent required under Section 422 of the Code, an Incentive
Stock Option may not be granted under the Plan to an employee who, at the time
the option is granted, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of his or her employer corporation or of
its parent or subsidiary corporations (as such ownership may be determined for
purposes of Section 422(b)(6) of the Code) unless (i) at the time such Incentive
Stock Option is granted the option exercise price is at least 110% of the Fair
Market Value of the shares subject thereto and (ii) the Incentive Stock Option
by its terms is not exercisable after the expiration of five (5) years from the
date granted.
Section
8.
Restricted Stock and
Restricted Stock Unit Awards
. The Committee is authorized to grant
Restricted Stock and/or Restricted Stock units to Participants.
(a) The
Awards granted under this Section 8 shall be subject to such restrictions as the
Committee may impose (including, without limitation, any limitation on the right
to vote Shares underlying Restricted Stock and Restricted Stock units or the
right to receive any dividend, other right or property), which restrictions may
lapse separately or in combination at such time or times, in such installments
or otherwise, as the Committee may deem appropriate; provided that each Award
granted after the date of the Initial Public Offering to any Participant (i)
that is not a non-employee director of the Company shall vest and be settled
ratably (on a monthly, quarterly, annual or other basis as (as the Committee may
determine)) over no less than a period of three years and (ii) that is a
non-employee director of the Company shall vest and be settled ratably (on a
monthly, quarterly, annual or other basis as (as the Committee may determine))
over no less than a period of three years, unless such Award is granted as part
of such non-employee director’s regular annual compensation paid in accordance
with the Company’s director compensation policy. Shares of Restricted Stock may
not be sold, assigned, transferred, pledged or otherwise encumbered or disposed
of except as specifically provided in this Plan or the applicable Award
Agreement. Unless the applicable Award Agreement provides otherwise, additional
shares of common stock or other property distributed to the Participant in
respect of shares of Restricted Stock or Restricted Stock units, as dividends or
otherwise, shall be subject to the same restrictions applicable to such
Restricted Stock or Restricted Stock units.
(b) Any
Award of Restricted Stock or Restricted Stock units may be evidenced in such
manner as the Committee may deem appropriate, including, without limitation,
book-entry registration or issuance of a stock certificate or certificates. In
the event any stock certificate is issued in respect of Shares underlying a
Restricted Stock Award, such certificate shall be registered in the name of the
Participant.
(c)
Unless the Committee shall otherwise determine, any certificate issued
evidencing shares of Restricted Stock shall remain in the possession of the
Company until such shares are free of any restrictions specified in the
applicable Award Agreement.
Section
9.
Other Stock-Based
Awards
. The Committee is authorized, subject to limitations under
applicable law, to grant to Participants such other Awards that may be
denominated or payable in, valued in whole or in part by reference to, or
otherwise based on, or related to, Shares or factors that may influence the
value of Shares, including, without limitation, convertible or exchangeable debt
securities, other rights convertible or exchangeable into Shares, purchase
rights for Shares, Awards with value and payment contingent upon performance of
the Company or business units thereof or any other factors designated by the
Committee. The Committee shall determine the terms and conditions of such
Awards. Shares delivered pursuant to an Award in the nature of a purchase right
granted under this Section 9 shall be purchased for such consideration, paid for
at such times, by such methods, and in such forms, including, without
limitation, cash, Shares, other Awards, notes, or other property, as the
Committee shall determine. Cash awards, as an element of or supplement to any
other Award under the Plan, may also be granted pursuant to this Section 9.
Other than Awards which are granted in lieu of cash consideration, (i) Awards
granted pursuant to this Section 9 that are in the nature of a Performance Award
are subject to the requirement set forth in Section 2 that the related
Performance Period
be
a period of at least nine months and (ii) Awards granted pursuant to this
Section 9 that are not in the nature of a Performance Award are subject to the
minimum vesting and settlement terms set forth in Section 6(c) and
8(a).
Section
10.
Performance
Awards
.
(a)
General
. Performance Awards
may be denominated as a cash amount, number of Shares, number of Share units
having a value equal to an identical number of Shares, or a combination thereof
and are awards which may be earned upon achievement or satisfaction of
performance conditions specified by the Committee. In addition, the Committee
may specify that any other Award shall constitute a Performance Award by
conditioning the right of a Participant to exercise the Award or have it
settled, and the timing thereof, upon achievement or satisfaction of such
performance conditions as may be specified by the Committee. The Committee may
use such business criteria and other measures of performance as it may deem
appropriate in establishing any performance conditions. In the event that a
stock certificate is issued in respect of Performance Awards, such certificates
shall be registered in the name of the Participant but shall be held by the
Company until the time the performance shares are earned.
(b)
Performance Goals Generally
.
The performance goals for such Performance Awards shall consist of one or more
business criteria and a targeted level or levels of performance with respect to
each of such criteria, as specified by the Committee consistent with this
Section 10. The Committee may determine that such Performance Awards shall be
granted, exercised and/or settled upon achievement of any one performance goal
or that two or more of the performance goals must be achieved as a condition to
grant, exercise and/or settlement of such Performance Awards. Performance goals
may differ for Performance Awards granted to any one Participant or to different
Participants.
(c)
Business Criteria
. Without
limitation of the use of other criteria, one or more of the following business
criteria for the Company, on a consolidated basis, and/or for specified
subsidiaries or affiliates or other business units of the Company may be used by
the Committee in establishing performance goals for such Performance Awards: (i)
earnings per share, (ii) return on average common equity, (iii) pre-tax income,
(iv) pre-tax operating income, (v) net revenues, (vi) net income, (vii) profits
before taxes, (viii) book value per share, (ix) stock price, (x) earnings
available to common shareholders, (xi) ratio of compensation and benefits to net
revenues and (xii) execution and origination of assignments directly related to
the individual covered employee. Such targets may relate to the Company as a
whole, or to one or more units thereof, and may be measured over such periods of
at least nine months, as the Committee shall determine. The targeted level or
levels of performance with respect to such business criteria may be established
at such levels and in such terms as the Committee may determine, in its
discretion, including in absolute terms, as a goal relative to performance in
prior periods, or as a goal compared to the performance of one or more
comparable companies or an index covering multiple companies.
(d)
Settlement of Performance Awards;
Other Terms
. Settlement of Performance Awards shall be in cash, Shares,
other Awards or other property, in the discretion of the Committee. Performance
Awards will be distributed only after the end of the relevant Performance
Period. The Committee may, in its discretion, increase or reduce (subject to the
rights of a Participant provided under Section 17 hereof) the amount of a
settlement otherwise to be made in connection with such Performance Awards, but
may not exercise discretion to increase any such amount payable to a Covered
Employee in respect of a Performance Award subject to Paragraph (b) above. The
Committee shall specify the circumstances in which such Performance Awards shall
be paid or forfeited in the event of termination of employment by the
Participant.
Section
11.
Termination of
Employment
. Unless otherwise determined by the Committee or provided by
the Committee in the applicable Award Agreement, the following provisions shall
apply:
(a) Upon
a termination of employment as a result of death, Disability or
Retirement:
(i) any
Award (other than Options) then held by the Participant will be immediately
accelerated and become fully vested, exercisable and payable, and
(ii)
any Option then held by the Participant will be immediately accelerated and
become fully vested and exercisable and will expire on the earlier of (A) the
date the option would have expired had the Participant continued in such
employment and (B) one (1) year after the date such Participant’s service
ceases.
(b) Upon
termination of employment by the Company for cause (as determined by the
Committee in its sole discretion):
(i) any
Award then held by the Participant whose restrictions have not lapsed, which is
not exercisable or which is not payable will automatically be forfeited in full
and canceled by the Company upon such termination of employment,
and
(ii) any
Option then held by the Participant, to the extent exercisable, will
automatically be forfeited in full and canceled by the Company upon such
termination of employment.
(c) Upon
a termination of employment by the Company without cause (as determined by the
Committee in its sole discretion) within two years following the occurrence of a
Change in Control or (ii) upon a termination of employment by the Company
without cause (as determined by the Committee in its sole discretion) six months
prior to the occurrence of a Change in Control if, in the case of (ii), the
Committee reasonably determines in its sole discretion that such termination was
at the behest of the acquiring entity (each such termination of employment
deemed to be a termination of employment “in connection with” the occurrence of
a Change in Control):
(i) any
Award (other than Options) then held by the Participant will be immediately
accelerated and become fully vested, exercisable and payable, and
(ii) any
Option then held by the Participant will be immediately accelerated and become
fully vested, exercisable and payable and shall automatically expire on the
earlier of (A) the date the Option would have expired had the Participant
continued in such employment and (B) one year after the date such Participant’s
service ceases, or, in the case of clause (B), in the event the Committee
determines the termination was without cause at the behest of the acquiring
entity, one (1) year after the date of such determination.
(d) Upon
termination of employment for any reason other than those specified in (a), (b)
or (c) above:
(i) any
Award (other than Performance Awards) then held by the Participant whose
restrictions have not lapsed, which is not vested, which is not exercisable or
which is not payable will automatically be forfeited in full and canceled by the
Company upon such termination of employment,
(ii) any
Option then held by the Participant, to the extent exercisable, shall
automatically expire on the earlier of (A) the date the Option would have
expired had the Participant continued in such employment and (B) one hundred and
eighty (180) days (or ninety (90) days in the case of an Option that is intended
to qualify as an Incentive Stock Option) after the date the such Participant’s
service ceases, and
(iii) any
Performance Award then held by the Participant which is not then payable will be
paid in accordance with its terms, which terms may provide that the Performance
Award be forfeited.
(e)
Unless the Committee determines at any time in its sole discretion that this
Section 11(e) shall not apply, in the event the Company sells or spins off a
portion of its assets or one of its Affiliates and a Participant is determined
by the Committee to have a termination of employment as a result of such sale or
spin-off, then the Participant shall be permitted to exercise Participant’s
Options that are vested and outstanding on the effective date of such
termination until the earlier of one (1) year after such termination of
employment or the expiration of the Award.
Section 12.
Adjustment
. In the event of any extraordinary
dividend or other extraordinary distribution (whether in the form of cash,
Shares, other securities, or other property), recapitalization, forward or
reverse split, reorganization, merger, consolidation, spin-off, combination,
repurchase, share exchange, liquidation, dissolution or other similar corporate
transaction or event, then the Committee shall, in such manner as it shall deem
equitable, adjust any or all of (i) the maximum number of Shares that may be
issued under the Plan as set forth in Section 4(a) or the number and kind of
Shares which may be delivered in connection with Awards
granted thereafter, (ii) the number and
kind of Shares by which annual per person Award limitations are measured under
Section 4(a), (iii) the number and kind of Shares subject to or deliverable in
respect of outstanding Awards and (iv) the exercise price, grant price or
purchase price relating to any Award. In addition, the Committee shall, in such
manner as it shall deem equitable, make adjustments in the terms and conditions
of, and the criteria included in, Awards (including Performance Awards and
performance goals) in recognition of unusual or nonrecurring events (including,
without limitation, events described in the preceding sentence, as well as
acquisitions and dispositions of businesses and assets) affecting the Company,
any Subsidiary or Affiliate or other business unit, or the financial statements
of the Company or any Subsidiary or Affiliate, or in response to changes in
applicable laws, regulations, accounting principles, tax rates and regulations
or business conditions or in view of the Committee’s assessment of the business
strategy of the Company, any Subsidiary or Affiliate or business unit thereof,
performance of comparable organizations, economic and business conditions,
personal performance of a Participant, and any other circumstances deemed
relevant. After any adjustment made pursuant to this paragraph, the number of
shares subject to each outstanding Award shall be rounded to the nearest whole
number.
Section
13.
Change in Control
.
Subject to Section 11 of the Plan and except as otherwise provided in the
applicable Award Agreement, upon the occurrence of a Change in Control, the
Committee shall determine whether outstanding but unvested or unexercisable
Options under the Plan shall become fully vested and exercisable and whether
outstanding but unvested, unexercisable or not yet payable Awards (other than
Options) under the Plan shall become fully vested, exercisable and payable;
provided that all Awards consisting of Restricted Stock units granted in
February 2006 in connection with the Initial Public Offering shall become fully
vested upon a Change in Control. In addition, upon a Change in Control, the
Committee may determine that any or all outstanding Awards granted under the
Plan shall be canceled and terminated; provided that, in connection with such
cancellation and termination of any Award which is then vested, exercisable or
payable, the holder of such Award receives for each Share subject to such Awards
a cash payment (or the delivery of Shares, other securities or a combination of
cash, stock and securities equivalent to such cash payment) equal to the
difference, if any, between the consideration received by shareholders of the
Company in respect of a Share in connection with such transaction and the
purchase price per share, if any, under the Award multiplied by the number of
Shares subject to such Award; provided further that if such product is zero or
less, the Awards will be canceled and terminated without payment
therefor.
Section
14.
Compliance with Laws;
Transferability
. (a) The Company may, to the extent deemed necessary or
advisable by the Committee, postpone the issuance or delivery of Shares or
payment of other benefits under any Award until completion of such registration
or qualification of such Shares or other required action under any applicable
law, rule or regulation, listing or other required action with respect to any
stock exchange or automated quotation system upon which the Shares or other
securities of the Company are listed or quoted, or compliance with any other
obligation or policy of the Company, as the Committee may consider appropriate,
and may require any Participant to make such representations, furnish such
information and comply with or be subject to such other conditions as it may
consider appropriate in connection with the issuance or delivery of Shares or
payment of other benefits in compliance with applicable laws, rules, and
regulations, listing requirements, or other obligations or policies of the
Company. Nothing herein shall require the Company to list, register or qualify
the shares of common stock on any securities exchange.
(b)
Except as the Committee may otherwise determine from time to time, (i) no Award
and no right under any Award shall be assignable, alienable, saleable or
transferable by a Participant otherwise than by will or by the laws of descent
and distribution; (ii) each Award, and each right under any Award, shall be
exercisable during the Participant’s lifetime only by the Participant or, if
permissible under applicable law, by the Participant’s guardian or legal
representative; and (iii) no Award and no right under any such Award, may be
pledged, alienated, attached, or otherwise encumbered, and any purported pledge,
alienation, attachment or encumbrance thereof shall be void and unenforceable
against the Company. The provisions of this Section 14(b) shall not apply to any
Award which has been fully exercised, earned or paid, as the case may be, and
shall not preclude forfeiture of an Award in accordance with the terms
thereof.
Section 15.
Certain Tax
Provisions
. (a) The
Company and any Subsidiary or Affiliate is authorized to withhold from any Award
granted, any payment relating to an Award under the Plan, including from a
distribution of Shares, or any payroll or other payment to a Participant,
amounts of withholding and other taxes due
or potentially payable in connection
with any transaction involving an Award (including, without limitation, FICA
tax), and to take such other action as the Committee may deem advisable to
enable the Company and Participants to satisfy obligations for the payment of
withholding taxes and other tax obligations relating to any Award. This
authority shall include authority to withhold or receive Shares or other
property and to make cash payments in respect thereof in satisfaction of a
Participant’s withholding obligations, either on a mandatory or elective basis
in the discretion of the Committee. Notwithstanding any other provision of the
Plan, only the minimum amount of Shares deliverable in connection with an Award
necessary to satisfy statutory withholding requirements will be withheld. For
this purpose, Fair Market Value shall be determined as of the date on which the
amount of tax to be withheld is determined (and any fractional share amount
shall be settled in cash).
(b) If
any Participant shall make any disposition of Shares delivered pursuant to the
exercise of an Incentive Stock Option under the circumstances described in
Section 421(b) of the Code, such Participant shall notify the Company of such
disposition within ten days thereof.
(c) If a
Participant, in connection with the acquisition of Shares under the Plan, is
permitted under the terms of the Award Agreement to make the election permitted
under Section 83(b) of the Code (i.e., an election to include in gross income in
the year of transfer the amounts specified in Section 83(b) of the Code
notwithstanding the continuing transfer restrictions) and the Participant makes
such an election, the Participant shall notify the Company of such election
within ten (10) days of filing notice of the election with the Internal Revenue
Service, in addition to any filing and notification required pursuant to
regulations issued under Section 83(b) of the Code.
Section
16.
General Provisions
. (a) Neither the Plan nor any action taken hereunder shall be construed as (i)
giving any Eligible Person or Participant the right to continue as an Eligible
Person or Participant or in the employ or service of the Company or a Subsidiary
or Affiliate, (ii) interfering in any way with the right of the Company or a
Subsidiary or Affiliate to terminate any Eligible Person’s or Participant’s
employment or service at any time (subject to the terms and provisions of any
separate written agreements), (iii) giving an Eligible Person or Participant any
claim to be granted any Award under the Plan or to be treated uniformly with
other Participants and employees, or (iv) conferring on a Participant any of the
rights of a shareholder of the Company unless and until the Participant is duly
issued or transferred Shares in accordance with the terms of an Award. Except as
expressly provided in the Plan and an Award Agreement, neither the Plan nor any
Award Agreement shall confer on any person other than the Company and the
Participant any rights or remedies thereunder.
(b) The
prospective recipient of any Award under the Plan shall not, with respect to
such Award, be deemed to have become a Participant, or to have any rights with
respect to such Award, until and unless such recipient shall have received or
executed (if execution is required) an Award Agreement or other instrument
evidencing the Award and delivered a copy thereof to the Company, and otherwise
complied with the then applicable terms and conditions.
(c) The
Committee shall have full power and authority to determine whether, to what
extent and under what circumstances any Award shall be canceled or suspended.
These powers may include cancellation or forfeiture if a Participant establishes
a relationship with a competitor of the Company or engages in activity which is
in conflict with or adverse to the interest of the Company, as determined under
the Company’s non-competition policy, as in effect from time to
time.
(d) The
Committee shall be authorized to establish procedures pursuant to which the
payment of any Award may be deferred, either automatically, or at the election
of the Committee or a Participant. Subject to the provisions of the Plan and any
Award Agreement, the recipient of the Award (including, without limitation, any
deferred Award) may, if so determined by the Committee, be entitled to receive,
currently or on a deferred basis, cash dividends, or cash payments in amounts
equivalent to cash dividends on Shares, with respect to the number of Shares
covered by the Award, as determined by the Committee, in its sole discretion,
and the Committee may provide that such amounts (if any) shall be deemed to have
been reinvested in additional Shares or otherwise reinvested. This Section 16(d)
shall not apply to any Award granted to any resident of Canada if the result of
any such deferral would be to postpone payment of such Award to a time later
than the third anniversary of the end of the calendar year in which the Award
was granted.
(e)
If any provision of this Plan is or becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction, or would disqualify the Plan or any Award
under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to the extent, but only to the extent, necessary to
conform to applicable laws or if it cannot be construed or deemed amended
without, in the determination of the Committee, materially altering the intent
of the Plan, it shall be stricken and the remainder of the Plan shall remain in
full force and effect.
(f)
Awards may be granted to employees of the Company or any Subsidiary or Affiliate
who are foreign nationals or employed outside the United States, or both, on
such terms and conditions different from those applicable to Awards to those
employees employed in the United States as may, in the judgment of the
Committee, be necessary or desirable in order to recognize differences in local
law or tax policy. The Committee also may impose conditions on the exercise or
vesting of Awards in order to minimize the Company’s obligation with respect to
tax equalization for employees of the Company or any Subsidiary or Affiliate on
assignments outside their home country.
(g) Any
and all grants of Awards and issuances of Shares under the Plan shall constitute
a special incentive payment to the Participant and shall not be taken into
account in computing the amount of salary or compensation of the Participant for
the purpose of determining any benefits under any pension, retirement,
profit-sharing, bonus, life insurance or other benefit plan of the Company or
under any agreement with the Participant, unless such plan or agreement
specifically provides otherwise. Nothing contained in the Plan shall be deemed
in any way to limit or restrict the Company from making any Award or payment to
any person under any other plan, arrangement or understanding, whether now
existing or hereafter in effect.
(h) The
section headings contained herein are for the purpose of convenience only and
are not intended to define or limit the contents of the sections.
(i)
Except as expressly provided therein, neither the Plan nor any Award Agreement
shall confer on any person other than the Company and the Participant any rights
or remedies hereunder or thereunder.
(j) The
terms of the Plan shall be binding upon and inure to the benefit of the Company
and its successors and assigns.
(k) Each
grantee of an Award recognizes and agrees that prior to being selected by the
Committee to receive an Award he or she has no right to any benefits hereunder.
Accordingly, in consideration of the grantee’s receipt of any Award hereunder,
he or she expressly waives any right to contest the amount of any Award, the
terms of any Award Agreement, any determination, action or omission hereunder or
under any Award Agreement by the Committee, the Company or the Board, or any
amendment to the Plan or any Award Agreement (other than an amendment to this
Plan or an Award Agreement to which his or her consent is expressly required by
the express terms of the Plan or an Award Agreement).
Section
17.
Effective Date; Amendment
and Termination
. (a) This Second Amended and Restated Equity Incentive
Plan shall become effective upon its approval by the shareholders of the Company
on May 19, 2008.
(b)
Unless the Plan will have been previously terminated by the Board, the Plan will
terminate ten years from the date set forth in Section 17(a). All Awards made
under the Plan prior to its termination shall remain in effect until such Awards
have been satisfied or terminated in accordance with the terms and provisions of
the Plan and the applicable Award Agreements. The Board will have the right, at
any time to suspend, amend, alter, discontinue or terminate the Plan, provided,
however that no such action shall be made without shareholder approval if such
approval is required under tax or stock exchange rules and regulations. No
termination of the Plan or action by the Board in amending or suspending the
Plan may materially impair the rights of a Participant under any outstanding
Award, without the consent of the affected Participant, except any such
amendment made to cause the Plan to comply with applicable law, stock exchange
rules and regulations or accounting or tax rules and regulations (including but
not limited to Section 409A of the Code).
(c) The Committee may waive any
conditions or rights under, amend any terms of, or amend, alter, suspend,
discontinue or terminate, any Award theretofore granted, prospectively or
retroactively, without the consent of any Participant or holder or beneficiary
of any Award; provided, however, that, notwithstanding the
foregoing in this Section 17(c), no
such action shall impair the rights of a Participant or holder or beneficiary
under any Award theretofore granted under the Plan.
Section
18.
Governing Law
. The
Plan will be governed by and construed in accordance with the law of the State
of New York, without giving effect to principles of conflict of
laws.
Proxy
Card for Holders of Common Stock
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THOMAS
WEISEL PARTNERS GROUP, INC.
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VOTE
BY INTERNET - www.proxyvote.com
Use
the Internet to transmit your voting instructions and for electronic
delivery of information up until 11:59 P.M. Eastern Time, February 6,
2009. Have your proxy card in hand when you access the web site and follow
the instructions to obtain your records and to create an electronic voting
instruction form.
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ELECTRONIC
DELIVERY OF FUTURE STOCKHOLDER COMMUNICATIONS
If
you would like to reduce the costs incurred by Thomas Weisel Partners
Group, Inc. in mailing proxy materials, you can consent to receiving all
future proxy statements, proxy cards and annual reports electronically via
e-mail or the Internet. To sign up for electronic delivery, please follow
the instructions above to vote using the Internet and, when prompted,
indicate that you agree to receive or access stockholder communications
electronically in future years.
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VOTE
BY PHONE – 1-800-690-6903
Use
any touch-tone telephone to transmit your voting instructions up until
11:59 P.M. Eastern Time, February 6, 2009. Have your proxy card in hand
when you call and then follow the instructions.
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VOTE
BY MAIL
Mark,
sign and date your proxy card and return it in the postage paid envelope
we have provided or return it to Thomas Weisel Partners Group, Inc., c/o
Broadridge, 51 Mercedes Way, Edgewood, NY
11717.
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TO VOTE,
MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
THOMAS WEISEL PARTNERS GROUP,
INC.
The
Board of Directors unanimously recommends a vote “FOR” proposal number
1.
Item 1 – To Amend the Company’s Equity Incentive
Plan
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For
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Against
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Abstain
o
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IMPORTANT:
Please sign exactly as your name appears hereon and mail it
promptly
even
though you may plan to attend the meeting. When shares are held by
joint
tenants,
both should sign. When signing as attorney, executor, administrator,
trustee
or
guardian, please give full title as such. If a corporation, please sign in
full
corporate
name by president or other authorized officer. If a partnership,
please
sign in
partnership name by a duly authorized person.
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___________________________________
Signature
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____________
Date
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__________________________________
Signature
(joint owners)
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___________
Date
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PROXY
SPECIAL
MEETING OF STOCKHOLDERS OF
THOMAS
WEISEL PARTNERS GROUP, INC.
One
Montgomery Street
San
Francisco, California 94104
This
Proxy is Solicited on Behalf of the Board of Directors of the
Company
The
undersigned stockholder hereby appoints Thomas W. Weisel, Lionel F. Conacher and
Mark P. Fisher, and each of them individually as proxies for the undersigned,
each with full power of substitution for and in the name of the undersigned, to
act for the undersigned and to vote, as designated on the reverse, all of the
shares of common stock of Thomas Weisel Partners Group, Inc. (the “Company”),
which the undersigned is entitled to vote at the Special Meeting of Stockholders
of the Company, or adjournment or postponement thereof, to be held February 9,
2009, at 8:00 a.m., Pacific Time, at One Montgomery Street, 35th Floor, San
Francisco, California 94104 to consider and act upon the matters as designated
on the reverse side. Unless otherwise specified in the boxes and space provided,
the proxies shall vote for the proposal listed on the reverse side and shall
have discretionary power to vote upon such other matters as may properly come
before the meeting or any adjournment or postponement thereof. The Board of
Directors has established the close of business on January 2, 2009, as the
record date for the determination of the stockholders entitled to notice of and
to vote at this Special Meeting of Stockholders.
Please
date, sign and mail your proxy card as soon as possible
(continued
and to be signed on the reverse side)
Voting
Card for Holders of Exchangeable Shares
VOTING
INSTRUCTION CARD
DIRECTION
GIVEN BY
REGISTERED
HOLDERS OF EXCHANGEABLE SHARES
OF
TWP
ACQUISITION COMPANY (CANADA), INC.
FOR
THE FEBRUARY 9, 2009 SPECIAL MEETING
OF
THE
STOCKHOLDERS OF THOMAS WEISEL PARTNERS GROUP, INC.
The
undersigned, having read the Notice of Special Meeting of Shareholders and Proxy
Statement regarding the special meeting (the “Special Meeting”) of common
stockholders of Thomas Weisel Partners Group, Inc. (“Thomas Weisel Partners”) to
be held at Thomas Weisel Partners’ corporate headquarters at One Montgomery
Street, 35th Floor, San Francisco, California 94104 on February 9, 2009 at 8:00
a.m. (Pacific time) and the accompanying Notice to Exchangeable Shareholders,
receipt of each of which is hereby acknowledged, does hereby instruct and direct
the Trustee, pursuant to the provisions of the Voting and Exchange Trust
Agreement (the “Agreement”) dated as of January 5, 2009, by and among Thomas
Weisel Partners, TWP Acquisition Company (Canada), Inc. (“Canadian Sub”) and the
Trustee, as follows:
(PLEASE
NOTE: IF NO DIRECTION IS MADE AND YOU SIGN BELOW, THE TRUSTEE IS HEREBY
AUTHORIZED AND DIRECTED TO VOTE FOR ITEM 1 AND AS TO ANY OTHER MATTERS THAT MAY
PROPERLY COME BEFORE THE SPECIAL MEETING TO VOTE IN ITS
DISCRETION.)
_________
THE
BOARD OF DIRECTORS OF
THOMAS
WEISEL PARTNERS GROUP, INC.
UNANIMOUSLY
RECOMMENDS YOU VOTE
“FOR”
PROPOSAL
1
_________
To
be valid, this voting instruction card must be signed and deposited in the
enclosed return envelope
or
by fax to (416) 368-2502 prior to 5:00 p.m., Eastern Time, on February 4,
2009.
(PLEASE
SELECT ONE OF A, B, C or D)
o
A.
Exercise or cause to be
exercised, whether by proxy given by the Trustee to a representative of Thomas
Weisel Partners or otherwise, the undersigned’s voting rights at the Special
Meeting, or any postponement or adjournment thereof, as follows:
(PLEASE
COMPLETE THE FOLLOWING ONLY IF YOU HAVE SELECTED ALTERNATIVE A.)
Proposal 1. To Amend Thomas Weisel Partners’
Equity Incentive Plan
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For
o
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Against
o
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Abstain
o
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To vote,
in its discretion, upon such other matters as may properly come before the
Special Meeting or any adjournment or postponement thereof.
(IF
YOU HAVE SELECTED ALTERNATIVE A, PLEASE GO DIRECTLY TO THE SIGNATURE LINE ON
THIS DOCUMENT.)
o
B.
Deliver a proxy card to the
undersigned at the Special Meeting with respect to all Exchangeable Shares of
Canadian Sub held by the undersigned on the record date for the Special Meeting
so that the undersigned may exercise personally the undersigned’s voting rights
at the Special Meeting or any postponement or adjournment thereof.
(IF
YOU HAVE SELECTED ALTERNATIVE B, PLEASE GO DIRECTLY TO THE SIGNATURE LINE ON
THIS DOCUMENT.)
o
C.
Deliver a proxy card
to ______________________________________________ to attend and act
for and on behalf of the undersigned at the Special Meeting with respect to all
the Exchangeable Shares of Canadian Sub held by the undersigned on the record
date for the Special Meeting with all the powers that the undersigned would
possess if personally present and acting thereat including the power to exercise
the undersigned’s voting rights at the Special Meeting or any postponement or
adjournment thereof.
(IF
YOU HAVE SELECTED ALTERNATIVE C, PLEASE GO DIRECTLY TO THE SIGNATURE LINE ON
THIS DOCUMENT.)
o
D.
Deliver a proxy card to any
of Thomas W. Weisel, Lionel F. Conacher or Mark P. Fisher, as representative of
management of Thomas Weisel Partners, to attend and act for and on behalf of the
undersigned at the Special Meeting with respect to all the Exchangeable Shares
of Canadian Sub held by the undersigned on the record date for the Special
Meeting with all the powers that the undersigned would possess if personally
present and acting thereat including the power to exercise the undersigned’s
voting rights at the Special Meeting or any postponement or adjournment
thereof.
(IF
YOU HAVE SELECTED ALTERNATIVE D, PLEASE GO DIRECTLY TO THE SIGNATURE LINE ON
THIS DOCUMENT.)
SIGNATURE
Executed
on this ______ day of ___________________ , 2009.
Signature:
_______________________________ Signature
(if joint owners): _______________________________
Print
Name:
______________________________ Print
Name: _______________________________
Title (if
applicable):
________________________ Title
(if applicable): _______________________________
NOTES:
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(1)
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A
shareholder has the right to appoint a person to represent him/her at the
Special Meeting by inserting in the space provided in Alternative C the
name of the person the shareholder wishes to appoint. Such person need not
be a shareholder. A shareholder may instead designate a representative of
management of Thomas Weisel Partners to exercise the shareholder’s voting
rights at the Special Meeting by selecting Alternative
D.
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(2)
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To
be valid, this voting instruction card must be signed and deposited with
CIBC Mellon Trust Company, Attn: Proxy Department, P.O. Box 721,
Agincourt, Ontario, M1S 0A1 in the enclosed return envelope or by fax to
(416) 368-2502 prior to 5:00 p.m., Eastern Time, on February 4, 2009 or,
if the Special Meeting is adjourned, 48 hours (excluding weekends and
holidays) before any adjourned Special
Meeting.
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(3)
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If
an individual, please sign exactly as your Exchangeable Shares are
registered.
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If the
shareholder is a corporation, this voting instruction card must be executed by a
duly authorized officer or attorney of the shareholder and, if the corporation
has a corporate seal, its corporate seal should be affixed. If Exchangeable
Shares are registered in the name of an executor, administrator or trustee,
please sign exactly as the Exchangeable Shares are registered. If the
Exchangeable Shares are registered in the name of the deceased or other
shareholder, the shareholder’s name must be printed in the space provided. This
voting instruction card must be signed by the legal representative with his/her
name printed below his/her signature and evidence of authority to sign on behalf
of the shareholder must be attached to this voting instruction
card.
In some
cases, Exchangeable Shares beneficially owned by a holder (a “Non-Registered
Holder”) may be registered in the name of a securities dealer or broker or other
intermediary, or clearing agency. Non-Registered Holders should, in particular,
review the section entitled “Non-Registered Holders” in the accompanying Notice
to Exchangeable Shareholders and carefully follow the instructions of their
intermediaries.
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(4)
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If
a share is held by two or more persons, each should sign this voting
instruction card.
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(5)
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If
this voting instruction card is not dated in the space provided, it is
deemed to bear the date on which it is mailed by the
shareholder.
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Meeting
Notice for Holder of Exchangeable Shares
Thomas
Weisel Partners Group, Inc.
_________
Notice
to Exchangeable Shareholders
_________
Our
records show that you are the holder of exchangeable shares (“
Exchangeable Shares
”) issued
by TWP Acquisition Company (Canada), Inc. (
“Canadian Sub
”), a Canadian
company. The Exchangeable Shares are intended to provide you with voting rights
that are substantially equivalent to those of holders of shares of common stock
of Thomas Weisel Partners Group, Inc. (“
Thomas Weisel Partners”),
the
U.S. parent of Canadian Sub, including the right to attend and exercise voting
rights at meetings of the shareholders of Thomas Weisel Partners. Thomas Weisel
Partners will be holding a Special Meeting of Shareholders (the “
Special Meeting
”) on Monday,
February 9, 2009, at 8:00 a.m., Pacific time, to:
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(1)
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Vote
on a proposal to amend the Thomas Weisel Partners Group, Inc. Equity
Incentive Plan; and
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(2)
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Conduct
any other business that properly comes before the
meeting.
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The
meeting will take place at Thomas Weisel Partners’ corporate headquarters at One
Montgomery Street, 35
th
Floor,
San Francisco, California 94104.
At the
Special Meeting, you will have voting rights, as described below, equal to the
number of Exchangeable Shares you hold. You are permitted to instruct the
Trustee under the Voting and Exchange Trust Agreement that was entered into in
connection with Thomas Weisel Partners’ acquisition of Westwind, as to how the
Trustee is to vote your Exchangeable Shares at the Special Meeting. If you do
not give voting instructions, the Trustee will not be entitled to exercise the
voting rights attached to your Exchangeable Shares. Alternatively, you may
instruct the Trustee to give you, or a person designated by you, a proxy to
exercise personally the voting rights attached to your Exchangeable Shares or a
proxy to a designated agent or other representative of management of Thomas
Weisel Partners to exercise those voting rights.
To
instruct the Trustee as to how you wish to exercise your voting rights, you must
complete, sign, date and return the enclosed voting instruction card to the
Trustee by 5:00 p.m., Eastern Time, on February 4, 2009
.
If you
wish to attend the meeting and are a holder of record of Exchangeable Shares,
you will be asked to present photo identification, such as a driver’s license,
to a representative of the Trustee who will attend the meeting. Whether or not
you plan to attend, please complete, sign, date and return the voting
instruction card in the envelope provided in order to ensure that your
Exchangeable Shares will be represented at the Special Meeting.
You have
the right to revoke any instructions to the Trustee by giving written notice of
revocation to the Trustee or by executing and delivering to the Trustee a
later-dated voting instruction card. No notice of revocation or later-dated
voting instruction card however, will be effective unless received by the
Trustee prior to 5:00 p.m., Eastern Time, on February 4, 2009.
Non-Registered
Holders
Only
registered holders of Exchangeable Shares of Canadian Sub are permitted to
instruct the Trustee as to how to vote their Exchangeable Shares at the Special
Meeting or to attend and vote at the Special Meeting in person or by proxy as
described above. You may be a beneficial owner but not a registered holder of
Exchangeable Shares (a “
Non-Registered Holder
”) if
your Exchangeable Shares are registered either:
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(1)
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in
the name of an intermediary (an “
Intermediary
”) with
whom you deal in respect of the Exchangeable Shares, such as, among
others, banks, trust companies, securities dealers or brokers and trustees
or administrators of self-administered RRSPs, RRIFs, and similar plans;
or
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(2)
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in
the name of a clearing agency (such as The Canadian Depository for
Securities Limited) of which the Intermediary is a
participant.
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The
Trustee has distributed copies of the Notice of Special Meeting of Shareholders
and Proxy Statement, dated January 9, 2009 and the Notice to Exchangeable
Shareholders (collectively, the “
Meeting Materials
”) to
Intermediaries who are required to forward these Meeting Materials to
Non-Registered Holders, unless a Non-Registered Holder has waived the right to
receive them. If you are a Non-Registered Holder who has not waived the right to
receive Meeting Materials, you will be given either:
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(1)
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a
voting instruction card, which has already been signed by the Intermediary
(typically by a facsimile, stamped signature) which is restricted as to
the number of Exchangeable Shares beneficially owned by you but which is
otherwise blank. This voting instruction card need not be signed by you.
In this case, if you wish to direct the voting of the Exchangeable Shares
held by you or attend and vote at the Special Meeting (or have another
person attend and vote on your behalf) you should properly complete the
voting instruction card and deposit it with Voting
Trustee — CIBC Mellon Trust Company, Attn: Proxy Department,
P.O. Box 721, Agincourt, Ontario M1S 0A1 or by fax to (416) 368-2502 prior
to 5:00 p.m., Eastern Time, on February 4, 2009;
or
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(2)
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a
voting instruction form which must be completed and signed by you in
accordance with the directions on the voting instruction
form.
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If you
are a Non-Registered Holder and wish to attend the meeting, you will be asked to
provide proof of ownership, such as an account statement or letter from a bank
or broker evidencing your ownership of Exchangeable Shares as of January 2,
2009, the record date for the Special Meeting, to a representative of the
Trustee who will attend the meeting.
The
purpose of these procedures is to permit you, as a Non-Registered Holder, to
direct the voting of the Exchangeable Shares you beneficially own or to attend
and vote at the Special Meeting, in person or by proxy. Non-Registered Holders
should carefully follow the instructions of their Intermediaries and their
service companies. A Non-Registered Holder generally may revoke a voting
instruction card/form given to an Intermediary at any time by written notice to
the Intermediary in a reasonable period of time prior to the Special Meeting, as
set forth in the Intermediary’s instructions.
Information
Relating to Thomas Weisel Partners
Exchangeable
Shares are exchangeable on a one-for-one basis for shares of common stock of
Thomas Weisel Partners. As a result of the substantial economic and voting
equivalency between the Exchangeable Shares and shares of common stock of Thomas
Weisel Partners, you, as a holder of Exchangeable Shares, will have a
participating interest determined by reference to Thomas Weisel Partners and not
Canadian Sub. Accordingly, it is information relating to Thomas Weisel Partners
that is relevant to you, and enclosed in this package are Thomas Weisel
Partner’s Notice of Special Meeting of Shareholders and Proxy Statement, which
we urge you to read carefully.
San
Francisco, California
January 5, 2009