Exhibit 10.19
AMENDED AND RESTATED CEO EMPLOYMENT
AGREEMENT
Thomas W. Weisel
Thomas Weisel Partners Group, Inc.
One Montgomery Street, 37th Floor
San Francisco, California 94104
December 15, 2008
Dear Thom:
On February 1, 2006, you entered into an
EMPLOYMENT AGREEMENT with Thomas Weisel Partners Group, Inc., a
Delaware corporation (“ TWPG Inc. ” and,
together with its subsidiaries and affiliates and its and their
respective predecessors and successors, the “ Firm
”), which set forth the terms and conditions of your
employment with the Firm, and that agreement was amended on
September 12, 2007 (as amended, the “ Prior Agreement
”).
You and the Firm wish to amend and
restate the Prior Agreement in its entirety, pursuant to the terms
and conditions set forth in this EMPLOYMENT AGREEMENT (this “
Agreement ”), and this Agreement sets forth the
ongoing terms and conditions of your employment with the
Firm.
1.
Employment
TWPG Inc. does hereby employ you and you do
hereby accept employment as Chief Executive Officer of TWPG
Inc. You shall have all the duties, responsibilities and
authority normally attendant to the office of Chief Executive
Officer of the Firm, and you shall render services consistent with
such positions on the terms set forth herein. As Chief
Executive Officer of the Firm, you shall report solely and directly
to the Board. In addition, you shall have such other
executive and managerial powers and duties with respect to the Firm
as may reasonably be assigned to you by the Board, to the extent
consistent with your position and status as set forth
above. In no event shall your duties, responsibilities
and authority be less than those initially performed by you as
Chief Executive Officer. All other employees of the Firm
shall report to you, either directly or through such other
personnel as the Board or you may designate. Subject to
the discretion of the Board, you may also be designated as Chairman
of the Board.
You agree to devote substantially all of your
business time, labor, skill and energies to the business and
affairs of the Firm during the Employment Period, subject to
periods of vacation and sick leave to which you are
entitled. Except as otherwise provided below, during the
Employment Period, you will not render any business, commercial or
professional services to any individual or any entity that is not
part of the Firm. However, you may serve on corporate,
civic or charitable boards, manage personal investments, deliver
lectures or fulfill speaking engagements, so long as these
activities do not significantly interfere with your performance of
your responsibilities under this Agreement and any service on a
corporate, civic or charitable board is pre-approved by the
Board. The Firm has discussed with you the activities
that you are conducting at the time of this Agreement and agrees
that these activities, as well as any substitute activities that
are similar in nature and scope, will not significantly interfere
with your responsibilities under this Agreement.
2.
Term of Employment
Subject to Section 8, the term of your
employment commenced on the original effective date of the Prior
Agreement and shall end on December 31, 2009 (such period, the
“ Initial Employment Period ”). After
the Initial Employment Period your term of employment shall be
automatically extended for successive two-year periods, subject to
Section 8 and unless otherwise agreed in writing by you and
the Firm 90 days prior to the end of such
periods. References in this Agreement to “ your
employment ” are to your employment under this
Agreement.
3.
Board Membership
During the Employment Period, TWPG Inc. shall
take all reasonable action to cause you to be appointed or elected
to the Board, and to serve as Chairman of the Board, subject to any
applicable laws, rules and regulations and any corporate governance
policies and practices of TWPG Inc. In the event that,
in the reasonable judgment of the Board, based on its consideration
of applicable legal, regulatory or corporate governance (including
stock exchange) requirements, the Board determines that the Firm
should split the function of Chairman of the Board and Chief
Executive Officer, you may be replaced as Chairman of the Board
(but not as Chief Executive Officer) without it being considered a
termination of your employment hereunder or otherwise a breach by
TWPG Inc. of this Agreement.
4.
Location
In connection with your employment by the Firm,
you shall be based at the headquarters of TWPG Inc. in San
Francisco, California, except for travel reasonably required for
the Firm’s business.
5.
Compensation
(a)
Base Salary . During the Employment Period,
subject to your continued employment hereunder, you shall be paid
an annualized base salary (the “ Base Salary ”)
of U.S. $200,000, payable in semi-monthly
installments. Your base salary shall be reviewed
annually by the Firm, and may be increased (but not decreased) at
each such annual review.
(b)
Annual Bonus . During the Employment Period,
subject to your continued employment hereunder, you may be awarded
an annual bonus (the “ Bonus ”) pursuant to the
Thomas Weisel Partners Group, Inc. Bonus Plan.
(c)
Equity Compensation . During the Employment
Period, subject to your continued employment hereunder, you shall
be eligible to participate in all equity incentive plans for senior
executives of the Firm as may be in effect from time to time, in
accordance with the terms of any such plan.
6.
Employee Benefit Plans
During the Employment Period, subject to your
continued employment hereunder, you shall be eligible to
participate in each employee retirement and welfare benefit plan
and program of the type made available to the Firm’s
employees generally, and senior executives specifically, in
accordance with their terms and as such plans and programs may be
in effect, which may include from time to time, without limitation,
savings, profit-sharing and other retirement plans or programs,
401(k), medical, dental, flexible spending account,
hospitalization, short-term and long-term disability and life
insurance plans.
7.
Other Employee Benefits
(a)
Vacation . You will be entitled to paid annual
vacation during the Employment Period (totaling at least four weeks
in each calendar year) on a basis that is at least as favorable as
that provided to you as of the date of this Agreement.
(b)
Reimbursement of Business Expenses . You will be
reimbursed for all reasonable travel, entertainment and other
business expenses incurred by you in performing your
responsibilities under this Agreement, subject to the Firm’s
normal policies and practices (including appropriate documentation
requirements) for senior executives.
(c)
Facilities . During the Employment Period, you
will be provided with office space, facilities, secretarial support
and other business and personal services consistent with your
position on a basis that is at least as favorable as that provided
to you as of the date of this Agreement; provided, however ,
that such support and services shall be subject to periodic review
and modification by the Compensation Committee in its sole
discretion.
8.
Early Termination of Your Employment
(a)
No Reason Required . You or TWPG Inc. may
terminate your employment at any time for any reason, or for no
reason, subject to compliance with Section 8(e).
(b)
Termination by TWPG Inc. for Cause .
(1) TWPG
Inc. may terminate your employment under any of the following
circumstances, and such termination shall be considered “for
Cause”:
(A) Your
continued and willful failure to perform substantially your
responsibilities to the Firm under this
Agreement. “ Cause ” does not,
however, include any such failure after TWPG Inc. gives you a
Termination Notice without Cause, or you give the Firm a
Termination Notice for Good Reason, in each case in accordance with
Section 8(e).
(B) Your
willful engagement in illegal conduct, fraud, embezzlement or gross
misconduct, in each case, that causes financial or reputational
harm to the Firm.
(C) Your
commission or conviction of, or plea of guilty or nolo
contendere to, a felony.
(D) Your
willful and material breach or violation of (i) this
Agreement, the Partners’ Equity Agreement, the Pledge
Agreement or any other written agreement between you and the Firm,
or (ii) the code of conduct and ethics of TWPG Inc. or any
other Firm policy in respect of insider trading, hedging or
confidential information.
(E) Your
willful attempt to obstruct or willful failure to cooperate with
any investigation authorized by the Board or any governmental or
self-regulatory entity.
(F) Your
disqualification or bar by any governmental or self-regulatory
authority from serving in the capacity contemplated by this
Agreement or your loss of any governmental or self-regulatory
license that is reasonably necessary for you to perform your
responsibilities to the Firm under this Agreement, if (i) the
disqualification, bar or loss continues for more than 90 days
and (ii) during that period the Firm uses its good faith
efforts to cause the disqualification or bar to be lifted or the
license replaced. While any disqualification, bar or
loss continues during your employment, you will serve in the
capacity contemplated by this Agreement to whatever extent legally
permissible and, if your employment is not permissible, you will be
placed on leave (which will be paid to the extent legally
permissible).
For this definition of Cause, (i) no act or
omission by you will be “willful” unless it is made by
you in bad faith or without a reasonable belief that your act or
omission was in the best interests of the Firm and (ii) any
act or omission by you based on authority given pursuant to a
resolution duly adopted by the Board or on the advice of counsel
for the Firm will be deemed made in good faith and in the best
interests of the Firm.
(2) To
terminate your employment “for Cause”, the Board must
determine in good faith that Cause has occurred and TWPG Inc. must
comply with Section 8(e).
(3) TWPG
Inc. may place you on paid leave for up to 30 consecutive days
while it determines whether there is a basis to terminate your
employment for Cause. This leave will not constitute
Good Reason.
(c)
Termination by You for Good Reason .
(1) You
may terminate your employment under the following circumstances and
such termination shall be considered “for Good
Reason”:
(A) Any
material and adverse change in your title, position or duties with
the Firm (including by reason of removal or failure to be elected
or re-elected as a director, other than as stipulated in the last
sentence of Section 3 hereof).
(B) Any
failure by TWPG Inc. to provide you with authority,
responsibilities and reporting relationship as provided in
Section 1 or any material and adverse reduction in your
authority, responsibilities or reporting relationship, in each case
other than any isolated, insubstantial and inadvertent failure by
TWPG Inc. that is not in bad faith and is cured promptly on your
giving notice to TWPG Inc.
(C) The
Firm moving its principal executive offices outside the San
Francisco, California metropolitan area.
(D) A
material breach by the Firm of any of its obligations to you under
this Agreement.
(E) Any
purported termination by TWPG Inc. of your employment that is in
breach of this Agreement.
(F) Any
failure by TWPG Inc. to maintain a bonus plan and/or equity
incentive plan (and/or equivalent corporate compensation policies)
which when taken together are substantially comparable to the plans
described in Sections 5(b) and (c) above; provided that, any
reasonable period during which such a plan or policy is not
maintained and during which TWPG Inc. is in good faith seeking
board of directors or stockholder approval of the renewal or
replacement of any such plan or policy shall, during such
reasonable period, not be deemed a failure by TWPG Inc. to maintain
such a plan or policy.
(2) To
terminate your employment “for Good Reason”, Good
Reason must have occurred and you must comply with
Section 8(e). However, (A) if you do not give
a Termination Notice within 90 days after you have knowledge
that an event constituting Good Reason has occurred, the event will
no longer constitute Good Reason and (B) you must give the
Firm a 30-day period to cure after notice of the first event
constituting Good Reason under Section 8(c).
(d)
Termination on Disability or Death .
(1) TWPG
Inc. may terminate your employment upon your
Disability. For purposes of this Agreement, “
Disability ” means your absence from your
responsibilities with TWPG Inc. on a full-time basis for
180 days in any consecutive 12 months as a result of
incapacity due to mental or physical illness or
injury. If TWPG Inc. determines in good faith that your
Disability has occurred, it may give you Termination
Notice. If within 30 days of the Termination Notice
you do not return to full-time performance of your
responsibilities, your employment will terminate. If you
do return to full-time performance in that 30-day period, the
Termination Notice will be cancelled for all purposes of this
Agreement. Except as provided in this Section 8(d),
any of your incapacity due to mental or physical illness or injury
will not affect TWPG Inc.’s obligations under this
Agreement.
(2) Your
employment will terminate automatically on your death.
(e)
Advance Notice Generally Required .
(1) To
terminate your employment before the end of the Employment Period,
either you or TWPG Inc. must provide a Termination Notice to the
other. A “ Termination Notice ” is a
written notice that states the specific provision of this Agreement
on which termination is based
