Form of Indemnification
Agreement
This
Indemnification Agreement (this “Agreement”) is made as
of _________, 200___by and between Thomas Weisel Partners Group,
Inc., a Delaware corporation (the “Company”), and
_______________(the “Individual”).
WHEREAS,
the Company and the Individual recognize the difficulty in
obtaining directors’ and officers’ liability insurance,
the cost of such insurance and the limited scope of coverage of
such insurance;
WHEREAS,
the Company and the Individual further recognize the substantial
increase in corporate litigation in general, subjecting officers
and directors to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely
limited; and
WHEREAS,
the Company desires to attract and retain the services of highly
qualified individuals, such as the Individual, to serve as officers
and directors of the Company and to indemnify its officers and
directors so as to provide them with the maximum protection
permitted by law.
NOW,
THEREFORE, the Company and the Individual hereby agree as
follows:
1.
Indemnification; Presumptions .
(a) The
Company shall defend, indemnify and hold harmless the Individual
from any Losses or Expenses arising from any Claim relating to, or
arising in whole or in part out of, any Covered Event actually and
reasonably incurred by the Individual to the fullest extent
permitted by applicable law on the date hereof, or to such greater
extent as applicable law may thereafter permit or
authorize.
(b) The
termination of any Claim by judgment, order, settlement, conviction
or upon a plea of nolo contendre or its equivalent, shall not, of
itself, create a presumption that the Individual did not act in
good faith and in a manner reasonably relied to be in or not
opposed to the best interests of the Company, and with respect to
any criminal Claim, that Individual had reason to believe his or
her conduct was unlawful.
“
Claim ” means (a) any threatened, pending or
completed action, suit, proceeding or arbitration or other
alternative dispute resolution mechanism, or (b) any inquiry,
hearing or investigation, whether conducted by the Company or any
other Person, that Individual in good faith believes might lead to
the institution of any such action, suit, proceeding or arbitration
or other alternative dispute resolution mechanism, in each case
whether civil, criminal, administrative or other (whether or not
the claims or allegations therein are groundless, false or
fraudulent) and includes, without limitation,
those brought
by or in the name of the Company or any director or officer of the
Company.
“
Company Agent ” means any Person serving as a
director, officer, partner, employee, agent, trustee or fiduciary
of the Company, any Subsidiary or any Other Enterprise.
“
Covered Event ” means any event or occurrence on or
after the date of this Agreement related to the fact that the
Individual is or was a Company Agent or related to anything done or
not done by the Individual in any such capacity, and includes,
without limitation, any such event or occurrence (a) arising
from performance of the responsibilities, obligations or duties
imposed by ERISA or any similar applicable provisions of state or
common law, or (b) arising from any merger, consolidation or
other business combination involving the Company, any Subsidiary or
any Other Enterprise, including without limitation any sale or
other transfer of all or substantially all of the business or
assets of the Company, any Subsidiary or any Other
Enterprise.
“
Expenses ” includes attorneys’ fees and all
other costs, travel expenses, fees of experts, transcript costs,
filing fees, witness fees, telephone charges, postage, copying
costs, delivery services fees and other expenses and obligations of
any nature whatsoever paid or incurred in connection with
investigating, prosecuting or defending, being a witness in or
participating in (including on appeal), or preparing to prosecute
or defend, be a witness in or participate in any Claim, for which
the Individual is or becomes legally obligated to pay.
“
Loss ” means any amount which the Individual is
legally obligated to pay as a result of any Claim, including,
without limitation (a) all judgments, penalties and fines, and
amounts paid or to be paid in settlement, and (b) all
interest, assessments and other charges paid or payable in
connection therewith.
“
Other Enterprise ” means any corporation (other than
the Company or any Subsidiary), partnership, joint venture,
association, employee benefit plan, trust or other enterprise or
organization for which the Individual acts as a Company Agent at
the request of the Company or any Subsidiary. The Individual shall
be deemed to be acting as a Company Agent of an Other Enterprise at
the request of the Company with respect to any Other Enterprise in
which the Company or any Subsidiary has an investment as to which
the Individual shall act as a Company Agent from time to time. The
Individual shall be deemed to be acting as a Company Agent of an
Other Enterprise at the request of the Company, if the Individual
acts as a Company Agent of an Other Enterprise at the written or
oral request of the Board of Directors of the Company or of any
Subsidiary by which the Individual is employed from time to time,
or at the written or oral request of an Executive Officer of the
Company or of any Subsidiary by which the Individual is employed
from time to time, or if the Individual acts as a Company Agent of
an Other Enterprise by reason of being requested, elected, hired or
retained to succeed to or assume the responsibilities of a Person
who previously acted as a Company Agent of an Other Enterprise at
the request of the Company.
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“
Person ” means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government (or any
subdivision, department, commission or agency thereof), and
includes without limitation any “person”, as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended.
“
Subsidiary ” means any entity of which securities or
other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing
similar functions are now or hereafter owned, directly or
indirectly, by the Company.
3.
Expenses; Indemnification Procedure .
(a)
Advancement of Expenses . Expenses incurred in defending a
civil or criminal action, suit or proceeding by the Individual, if
the Individual is determined to be entitled to indemnification
pursuant to Section 1 hereof, shall be paid by the Company in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the Individual to
repay such amount if it shall ultimately be determined that the
Individual is not entitled to be indemnified by the Company as
authorized by this Agreement (the “Undertaking”);
provided, however, that the Company shall not be required to
advance expenses to the Individual in connection with any
proceeding (or part thereof) initiated by the Individual unless the
proceeding was authorized in advance by the Board of Directors of
the Company; and provided further that no advance shall be made by
the Company to the Individual in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, if a
determination is reasonably and promptly made (i) by a
majority vote of disinterested directors or (ii) by
independent legal counsel in a written opinion, that the facts
known to the decision-making party at the time such determination
is made demonstrate clearly and convincingly that the Individual
acted in bad faith or in a manner that the Individual did not
believe to be in or not opposed to the best interests of the
Company. The Individual shall be entitled to receive interim
payments of expenses pursuant to this Section 3(a) unless and until
such defense may be finally adjudicated by court order or judgment
from which no further right of appeal exists.
(b)
Notice/Cooperation by the Individual . The Individual shall,
as a condition precedent to his or her right to be indemnified
under this Agreement, give the Company notice in writing as soon as
practicable of any claim made against the Individual for which
indemnification will or could be sought under this Agreement.
Notice to the Company shall be directed to the Chief Executive
Officer of the Company at its principal executive offices (or such
other address as the Company shall designate in writing to the
Individual). In addition, the Individual shall give the Company
such information and cooperation as it may reasonably
require.
(c)
Procedure . Any indemnification and advances determined
proper in accordance with this Agreement shall be made no later
than 45 days after such determination. If a claim under this
Agreement, under any statute, or under any provision of the
Company’s Certificate of Incorporation or By-laws providing
for indemnification,
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is not paid in
full by the Company within 45 days after such determination,
the Individual may, but need not, at any time thereafter bring an
action against the Company to recover the unpaid amount of the
claim and, subject to Section 14 of this Agreement, the
Individual shall also be entitled to be paid for the expenses
(i
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