Exhibit 10.1
PRESIDENT EMPLOYMENT
AGREEMENT
Lionel F.
Conacher
80 Rowanwood
Avenue
Toronto, Canada
M4W1Y9
July 27, 2009
Dear
Lionel:
This is your EMPLOYMENT AGREEMENT (this “
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
”). This Agreement sets forth the terms and
conditions of your employment with the Firm.
1.
Employment
TWPG Inc. does hereby employ you and you do
hereby accept employment as President and Chief Operating Officer
of TWPG Inc. You shall have all the duties, responsibilities and
authority normally attendant to the office of President of the
Firm, and you shall render services consistent with such position
on the terms set forth herein. As President of the Firm, you shall
report solely and directly to the Chief Executive Officer. 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 Chairman and Chief Executive Officer, to the extent
consistent with your position and status as set forth above,
including being a member of the Firm’s Executive Committee
and Underwritten Offering Committee and having principal
responsibility for corporate development, including mergers and
acquisitions and the integration of any acquisitions TWPG Inc. may
undertake. All employees of the Firm other than the
Chairman and Chief Executive Officer and employees of the
Firm’s asset management group shall report to you, either
directly or through such business unit heads as the Chairman and
Chief Executive Officer or you may designate. If the Firm should
create a Compensation Committee during the Employment Period, you
shall immediately become (and remain) a member.
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
Chairman and Chief Executive Officer. 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 7, the term of this
employment agreement will commence on January 1, 2010 and shall end
on December 31, 2012 (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 7 and unless
otherwise agreed in writing by you and the Firm 90 days prior to
the end of such periods (including, for purposes of clarity, the
Initial Employment Period). References in this Agreement to “
your employment” are to your employment under this
Agreement.
3.
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.
4.
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. That bonus will be paid in a form
consistent with the other members of the Executive Committee,
including the mix of cash and equity participation, in accordance
with the schedule currently in use by TWPG Inc. as of the date of
this Agreement.
(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, including without
limitation the Third Amended and Restated Thomas Weisel Partners
Group, Inc. Equity Incentive Plan in accordance with the terms of
any such plan.
(d)
Reimbursement of Fees . Upon presentation by you
of invoices reflecting same, the Firm will reimburse you for
reasonable attorneys’ fees incurred in connection with the
review of this President Employment Agreement.
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 (waiving any eligibility conditions or pre-existing
condition exclusions). The Firm agrees to provide you with service
credit and participation (including pension accruals) under your
current Canadian pension plans or comparable U.S. plans established
by the Firm.
6.
Other Employee Benefits
(a)
Vacation . You will be entitled to paid annual vacation
during the Employment Period consistent with the Firm’s
vacation policy for Officers of the Firm.
(b)
Reimbursement of Business Expenses . You will be reimbursed
for all reasonable travel, entertainment and other business
expenses incurred by you at a level comparable to that which is
reimbursable to other senior executives of the Firm, subject to the
Firm’s normal policies and practices for senior executives
(including appropriate documentation requirements). You will also
be reimbursed for expenses actually incurred by you in connection
with any relocation you experience in connection with your
employment hereunder, at a level comparable to that provided to
similarly situated senior executives of comparable
employers.
(c)
Facilities . During the Employment Period, you will be
provided with office space, facilities, electronic equipment,
secretarial support and other business and personal services
consistent with your position.
7.
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 7(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 7(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
Arrangement Agreement, the Equity Agreement, the Pledge Agreement,
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 7(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.
(4) If
termination is “ for Cause ” as set forth under
Subsection A, D, E, or F above in this Section 7(b), the Firm must
provide you with written notice of the event constituting Cause,
and at least a thirty (30) day period to cure (if
curable).
(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 appointed
or reappointed as a member of the Firm’s Executive Committee
and Underwritten Offering Committee).
(B) Any
failure by TWPG Inc. to provide you with the 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 and make payments to you pursuant
to 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 4(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.
(G) Any
failure of a Surviving Company (as defined in Section 10(c) of this
Agreement) to assume ownership of and responsibility for this
Agreement.
(2) To
terminate your employment “ for Good Reason ,”
Good Reason must have occurred and you must comply with Section
7(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
7(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 a 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 7(d), any of
your incapacity due