exv4w4






Exhibit 4.4






CERTIFICATE OF DESIGNATIONS

OF THE

% SERIES       [CONVERTIBLE] PREFERRED STOCK

(Par Value $0.01 Per Share)




OF




THOMAS WEISEL PARTNERS GROUP, INC.




 






     Pursuant to Section 151 of the General Corporation Law of the State of Delaware


 






          The undersigned duly authorized officer of Thomas Weisel Partners Group, Inc., a corporation
organized and existing under the General Corporation Law of the State of Delaware (the “Company”),
in accordance with the provisions of Section 103 thereof, and pursuant to Section 151 thereof, DOES
HEREBY CERTIFY:




          That the Certificate of Incorporation of the Company provides that the Company is authorized
to issue 10,000,000 shares of Preferred Stock, par value $0.01 per share, issuable in series by the
Board of Directors (the “Board”) of the Company. The Company has authorized and reserved for
issuance 1 share of Special Voting Preferred Stock (“Special Voting Preferred Stock”); and




          That pursuant to the authority conferred upon the Board by the Certificate of Incorporation of
the Company, the Board on                     , 200___, approved the creation, issuance and the voting powers of
shares of Preferred Stock to be issued in one or more series as determined by a duly authorized
committee of the Board, and, on                     , ___200___ such duly authorized committee of the Board
adopted the following resolution creating a series of      shares of Preferred Stock
designated as set forth below:




          RESOLVED, that pursuant to the authority expressly granted to and vested in the Board by
provisions of the Certificate of Incorporation of the Company[, as amended] (the “Certificate of
Incorporation”) and the General Corporation Law of the State of Delaware, the issuance of a series
of Preferred Stock, which shall consist of                      shares of the                      shares of Preferred
Stock which the Company now has authority to issue, be, and the same hereby is, authorized, and
this committee of the Board hereby fixes the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the powers, designations,
preferences and relative, participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, set forth in the Certificate of Incorporation which may be
applicable to the Preferred Stock) authorized by this resolution as follows:




     1. Designation and Rank. The designation of such series of Preferred Stock authorized
by this resolution shall be ___% Series • [Convertible] Preferred Stock (the



 









 







“Series • Preferred
Stock”). The maximum number of shares of Series • Preferred Stock shall be Shares of the Series •
Preferred Stock shall have a liquidation preference of $                      per share. The Series •
Preferred Stock shall rank prior to the Company’s Common Stock and to all other classes and series
of equity securities of the Company now or hereafter authorized, issued or outstanding (the Common
Stock and such other classes and series of equity securities collectively may be referred to herein
as the “Junior Stock”), other than any classes or series of equity securities of the Company
ranking on a parity with (the “Parity Stock”) or senior to (the “Senior Stock”) the Series •
Preferred Stock as to dividend rights and rights upon liquidation, winding up or dissolution of the
Company. The Series • Preferred Stock shall be junior to all outstanding debt of the Company.
[The Series • Preferred Stock shall be [senior to] [on a parity with] the Series • Preferred Stock
as to both payments of dividends and distribution of assets upon liquidation, dissolution and
winding up of the Company.] The Series • Preferred Stock shall be subject to creation of Senior
Stock, Parity Stock and Junior Stock to the extent not expressly prohibited by the Company’s
Certificate of Incorporation.



     2. [Cumulative Dividends;] Priority.



          (a) Payment of Dividends. The holders of record of shares of Series • Preferred Stock
shall be entitled to receive, when, as, and if declared by the Board, out of funds legally
available therefor, [cumulative] cash dividends at the rate of ___% per annum per share, which
shall accrue from the original issue date and be payable quarterly in arrears on the first day of
[March, June, September and December] in each year, commencing on                     , ___, or, if such day
is a non-business day, on the next business day (each of such dates, a “Dividend Payment Date”).
Each declared dividend shall be payable to holders of record as they appear on the stock books of
the Company at the close of business on such record dates, not more than 60 calendar days preceding
the payment dates therefor, as are determined by the Board or a duly authorized committee thereof
(each of such dates, a “Record Date”). Quarterly dividend periods (each a “Dividend Period”) shall
commence on and include the first day of [March, June, September and December] of each year and
shall end on and include the date next preceding the next following Dividend Payment Date.




          The amount of dividends payable per share for each full Dividend Period shall be computed by
dividing by four the amount determined by applying the ___% annual dividend rate to the
$                     liquidation preference of such share. Dividends on the Series • Preferred Stock shall
accrue day by day. Dividends shall be cumulative. The initial quarterly dividend payable on
                    , ___ and the amount of any dividend payable for any other period shorter than a full
Dividend Period shall be computed on the basis of a 360-day year composed of twelve 30-day months
and the actual number of days elapsed in such period.




          (b) Priority as to Dividends. No full dividends shall be declared or paid or set
apart for payment on Preferred Stock of any series ranking, as to dividends, on
a parity with or junior to the Series • Preferred Stock for any period unless full dividends
for the immediately preceding Dividend Period on the Series • Preferred Stock




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(including any
accumulation in respect of unpaid dividends from prior Dividend Periods) have been or
contemporaneously are declared and paid (or declared and a sum sufficient for the payment thereof
set apart for such payment). When dividends are not paid in full (or declared and a sum sufficient
for such full payment is not so set apart) upon the Series • Preferred Stock and any other
Preferred Stock ranking on a parity as to dividends with the Series • Preferred Stock, dividends
declared upon shares of Series • Preferred Stock and such other Preferred Stock ranking on a parity
as to dividends shall be declared pro rata, so that the amount of dividends declared per share on
the Series • Preferred Stock and such other Preferred Stock shall bear in all cases to each other
the same ratio that accrued dividends for the then-current Dividend Period per share on the shares
of Series • Preferred Stock (including any accumulation in respect of unpaid dividends for prior
Dividend Periods) and accrued dividends, including required or permitted accumulations, if any, of
such other Preferred Stock, bear to each other.




          Unless full dividends on the Series • Preferred Stock have been declared and paid or set apart
for payment for the immediately preceding Dividend Period (including any accumulation in respect of
unpaid dividends for prior Dividend Periods) (i) no cash dividend or other distribution (other than
in shares of Junior Stock) shall be declared or paid or set aside for payment on the Junior Stock,
(ii) the Company may not, directly or indirectly, repurchase, redeem or otherwise acquire any
shares of its Junior Stock (or any moneys paid to or made available for a sinking fund for the
redemption of any shares except by conversion into or exchange for Junior Stock) and (iii) the
Company may not, directly or indirectly, repurchase, redeem or otherwise acquire any shares of
Series • Preferred Stock or Parity Stock (or any moneys paid to or made available for a sinking
fund for the redemption of any shares of any such stock) otherwise than pursuant to a pro rata
offer to purchase or a concurrent redemption of all, or a pro rata portion, of the outstanding
shares of Series • Preferred Stock and Parity Stock (except by conversion into or exchange for
Junior Stock).




          The Company shall not permit any subsidiary of the Company to purchase or otherwise acquire
for consideration any shares of stock of the Company if, under the preceding paragraph, the Company
would be prohibited from purchasing or otherwise acquiring such shares at such time and in such
manner.




     3. [Redemption.



          (a) General. The shares of the Series • Preferred Stock will not be redeemable prior
to                     , 20___. At any time on or after                     , 20___, subject to the applicable
restrictions set forth in this Section 3 and applicable law, the shares of Series Preferred Stock
may be redeemed, in whole or in part, at the election of the Company, upon notice as provided in
Section 3(b) hereof, by resolution of its Board of Directors, at any time or from time to time, at
the redemption price of $                     per share, plus, in each case, an amount equal to all accrued and
unpaid dividends to the date fixed for redemption.




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          If less than all the outstanding shares of Series • Preferred Stock are to be redeemed, the
Company will select those to be redeemed pro rata, by lot or by a substantially equivalent method.
On and after the redemption date, dividends shall cease to accrue on the shares of Series •
Preferred Stock called for redemption, and they shall be deemed to cease to be outstanding,
provided that the redemption price (including any accrued and unpaid dividends to the date fixed
for redemption) has been duly paid or provided for.




          (b) Notice of Redemption. Notice of any redemption, setting forth (i) the date and
place fixed for said redemption, (ii) the redemption price and (iii) a statement that dividends on
the shares of Series • Preferred Stock to be redeemed will cease to accrue and accumulate on such
redemption date shall be mailed, postage prepaid, at least 30 days but not more than 60 days prior
to said redemption date to each holder of record of the Series • Preferred Stock to be redeemed at
his or her address as the same shall appear on the books of the Company. If less than all the
shares of the Series • Preferred Stock owned by such holder are then to be redeemed, the notice
shall specify the number of shares thereof which are to be redeemed and the numbers of the
certificates representing such shares.




          If such notice of redemption shall have been so mailed and if on or before the redemption date
specified in such notice all funds necessary for such redemption shall have been set aside by the
Company separate and apart from its other funds in trust for the account of the holders of the
shares of the Series • Preferred Stock so to be redeemed (so as to be and continue to be available
therefor), then, on and after said redemption date, notwithstanding that any certificate for shares
of the Series • Preferred Stock so called for redemption shall not have been surrendered for
cancellation, the shares of the Series • Preferred Stock so called for redemption shall be deemed
to be no longer outstanding, the dividends thereon shall cease to accrue, and all rights with
respect to such shares of the Series • Preferred Stock so called for redemption shall forthwith
cease and terminate, except only the right of the holders thereof to receive out of the funds so
set aside in trust the amount payable on redemption thereof, but without interest, upon surrender
(and endorsement or assignment for transfer, if required by the Company) of their certificates.




          However, if such notice of redemption shall have been so mailed, and if prior to the date of
redemption specified in such notice all said funds necessary for such redemption shall have been
irrevocably deposited in trust for the account of the holders of the shares of the Series •
Preferred Stock to be redeemed (so as to be and continue to be available therefor) with a bank or
trust company named in such notice doing business in the City of New York and having capital
surplus and undivided profits of at least $50,000,000, thereupon and without awaiting the
redemption date, all shares of the Series • Preferred Stock with respect to which such notice shall
have been so mailed, and such deposit shall have been so made shall be deemed to be no longer
outstanding and all rights with respect to such shares of the Series • Preferred Stock shall
forthwith upon such deposit in trust cease and terminate, except only the right of the holders
thereof on or after the redemption date to receive from such deposit the amount payable upon the




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redemption, but without interest, upon surrender (and endorsement or assignment to transfer,
if required by the Company) of their certificates.




          In case the holders of shares of the Series • Preferred Stock which shall have been redeemed
shall not within two years (or any longer period if required by law) after the redemption date
claim any amount so deposited in trust for the redemption of such shares, such bank or trust
company shall, upon demand and if permitted by applicable law, pay over to the Company any such
unclaimed amount so deposited with it, and shall thereupon be relieved of all responsibility in
respect thereof, and thereafter the holders of such shares shall, subject to applicable escheat
laws, look only to the Company for payment of the redemption price thereof, but without interest
from the date of redemption.




          (c) Status of Shares Redeemed. Shares of Series • Preferred Stock redeemed, purchased
or otherwise acquired for value by the Company, shall, after such acquisition, have the status of
authorized and unissued shares of Preferred Stock and may be reissued by the Company at any time as
shares of any series of Preferred Stock other than as shares of Series • Preferred Stock.]




     4. Voting Rights.


The voting rights of the Series • Preferred Stock shall be as follows:




          [(a) General Voting Rights. Except as expressly provided hereinafter in this Section,
or as otherwise from time to time required by applicable law, the Series • Preferred Stock shall
have no voting rights.




          (b) Voting Rights Upon Dividend Arrears.




               (i) Right to Elect Directors. In the event that an amount equal to six quarterly
dividend payments on the Series • Preferred Stock shall have accrued and be unpaid, the holders of
the Series • Preferred Stock shall have the right, voting separately as a class together with
holders of shares of any Parity Stock upon which like voting rights have been conferred and are
exercisable (“Voting Parity Stock”), to elect [two] members of the Board of Directors, each
member to be in addition to the then authorized number of directors, at the next annual meeting of
stockholders and thereafter until dividends on the Series • Preferred Stock have been paid in full
for four consecutive Dividend Periods, including the last preceding Dividend Period.



               (ii) Term of Office of Directors. Any director who shall have been elected by holders
of the Series • Preferred Stock and Voting Parity Stock entitled to vote in accordance with this
subparagraph (b) shall hold office for a term expiring (subject to the earlier payment, or
declaration and setting aside for payment, of dividends on the Series • Preferred Stock for four
consecutive Dividend Periods as described below) at the next annual meeting of stockholders and
during such term may be removed at any time, either for or without cause, by, and only by, the
affirmative vote of the holders of record of a majority of the shares of the Series • Preferred
Stock and Voting



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Parity Stock present and voting, in person or by proxy, at a special meeting of such
stockholders called for such purpose, and any vacancy created by such removal may also be filled at
such meeting. A meeting for the removal of a director elected by the holders of the Series •
Preferred Stock and Voting Parity Stock and the filling of the vacancy created thereby shall be
called by the Secretary of the Company as promptly as possible and in any event within 10 days
after receipt of a request therefor signed by the holders of not less than 25% of the outstanding
shares of the Series • Preferred Stock, subject to any applicable notice requirements imposed by
law or regulation. Such meeting shall be held at the earliest practicable date thereafter,
provided that no such meeting shall be required to be held during the 90-day period preceding the
date fixed for the annual meeting of stockholders.



          Upon payment, or declaration and setting aside for payment, of dividends on the Series •
Preferred Stock for four consecutive Dividend Periods the terms of office of all directors elected
by the holders of the shares of the Series • Preferred Stock and the Voting Parity Stock pursuant
thereto then in office shall, without further action, thereupon terminate unless otherwise required
by law. Upon such termination the number of directors constituting the Board of the Company shall,
without further action, be reduced by two, subject always to the increase of the number of
directors pursuant to the foregoing provisions in the case of the future right of holders of the
shares of the Series • Preferred Stock and Voting Parity Stock to elect directors as provided
above.




               (iii) Vacancies. Any vacancy caused by the death or resignation of a director who
shall have been elected in accordance with this subparagraph (b) may be filled by the remaining
director so elected or, if not so filled, by a vote of holders of a plurality of the shares of the
Series • Preferred Stock and Voting Parity Stock present and voting, in person or by proxy, at a
meeting called for such purpose. Unless such vacancy shall have been filled by the remaining
director as aforesaid, such meeting shall be called by the Secretary of the Company at the earliest
practicable date after such death or resignation, and in any event within 10 days after receipt of
a written request signed by the holders of record of at least 25% of the outstanding shares of the
Series • Preferred Stock, subject to any applicable notice requirements imposed by law or
regulation. Notwithstanding the provisions of this paragraph, no such special meeting shall be
required to be held during the 90-day period preceding the date fixed for the annual meeting of
stockholders.



               (iv) Stockholders’ Right to Call Meeting.
If any meeting of the holders of the Series •
Preferred Stock and Voting Parity Stock required by this subparagraph (b) to be called shall not
have been called within 30 days after personal service of a written request therefor upon the
Secretary of the Company or within 30 days after mailing the same within the United States of
America by registered mail addressed to the Secretary of the Company at its principal executive
offices, subject to any applicable notice requirements imposed by law or regulation, then the
holders of record of at least 25% of the outstanding shares of the Series • Preferred Stock may
designate in writing one of their number to call such meeting at the expense of the Company, and
such meeting may be called by such person so designated upon the notice required for annual



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meetings of stockholders or such shorter notice (but in no event shorter than permitted by law
or regulation) as may be acceptable to the holders of a majority of the total number of shares of
the Series • Preferred Stock. Any holder of the Series • Preferred Stock so designated shall have
access to the Preferred Stock books of the Company for the Series • Preferred Stock for the purpose
of causing such meeting to be called pursuant to these provisions.



               (v) Quorum. At any meeting of the holders of the Series • Preferred Stock called in
accordance with the provisions of this subparagraph (b) for the election or removal of directors,
the presence in person or by proxy of the holders of a majority of the total number of shares of
the Series • Preferred Stock and Voting Parity Stock shall be required to constitute a quorum; in
the absence of a quorum, a majority of the holders present in person or by proxy shall have power
to adjourn the meeting from time to time without notice other than an announcement at the meeting,
until a quorum shall be present.



          (c) Voting Rights on Extraordinary Matters. So long as any shares of the Series •
Preferred Stock shall be outstanding and unless the consent or approval of a greater number of
shares shall then be required by law, without first obtaining the approval of the holders of at
least two-thirds of the number of shares of the Series • Preferred Stock at the time outstanding
(voting separately as a class together with the holders of shares (on a one vote per share basis)
of Voting Parity Stock) given in person or by proxy at a meeting at which the holders of such
shares shall be entitled to vote separately as a class, the Company shall not either directly or
indirectly or through merger or consolidation with any other company, (i) authorize, create or
issue, or increase the authorized or issued amount, of any class or series of stock ranking prior
to the shares of the Series • Preferred Stock in rights and preferences or (ii) approve any
amendment to (or otherwise alter or repeal) its Certificate of Incorporation (or this resolution)
which would materially and adversely change the specific terms of the Series • Preferred Stock.




          An amendment which increases the number of authorized shares of any class or series of
Preferred Stock or authorizes the creation or issuance of other classes or series of Preferred
Stock, in each case ranking junior to or on a parity with the Series • Preferred Stock with respect
to the payment of dividends and distribution of assets upon liquidation, dissolution or winding up,
or substitutes the surviving entity in a merger or consolidation, reorganization or other business
combination for the Company, shall not be considered to be such an adverse change.




          (d)
One Vote Per Share. In connection with any matter on which holders of the Series •
Preferred Stock are entitled to vote as provided in paragraphs (b) and (c) of this Section, or
any matter on which the holders of the Series • Preferred Stock are entitled to vote as one class
or otherwise pursuant to law or the provisions of the Certificate of Incorporation, each holder of
the Series • Preferred Stock shall be entitled to one vote for each share of the Series • Preferred
Stock held by such holder.]




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          [In connection with any matter on which holders of the Company’s Common Stock are entitled to
vote, each holder of the Series • Preferred Stock shall be entitled to [one vote, voting together
with such Common Stock as a single class, for each share of the Series • Preferred Stock held by
such holder].]




     5. [No] Sinking Fund. [No sinking fund will be established for the retirement or
redemption of shares of Series • Preferred Stock.] [Insert any applicable sinking fund provisions.]



     [6. Conversion. [Applicable conversion provisions, if any, to be inserted.]]



     [6.] [7.]Liquidation Rights; Priority.



          (a) In the event of any liquidation, dissolution or winding up of the affairs of the Company,
whether voluntary or involuntary, after payment or provision for payment of the debts and other
liabilities of the Company, the holders of shares of the Series • Preferred Stock shall be entitled
to receive, out of the assets of the Company, whether such assets are capital or surplus and
whether or not any dividends as such are declared,
$        per share plus an amount equal to all
accrued and unpaid dividend for prior Dividend Periods, and no more, before any distribution shall
be made to the holders of the Common Stock or any other class of stock or series thereof ranking
junior to the Series • Preferred Stock with respect to the distribution of assets. After payment
of the full amount of the liquidation preference, the holders of shares of the Series • Preferred
Stock shall not be entitled to any further participation.




          (b) Nothing contained in this Section [6] [7] shall be deemed to prevent redemption of shares
of the Series • Preferred Stock by the Company in the manner provided in Section 3. Neither the
merger nor consolidation of the Company into or with any other company, nor the merger or
consolidation of any other company into or with the Company, nor a sale, transfer or lease of all
or any part of the assets of the Company, shall be deemed to be a liquidation, dissolution or
winding up of the Company within the meaning of this Section [6] [7].




          (c) Written notice of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, stating a payment date and the place where the distributable amounts
shall be payable, shall be given by mail, postage prepaid, no less than 30 days prior to the
payment date stated therein, to the holders of record of the Series • Preferred Stock at their
respective addresses as the same shall appear on the books of the Company.




          (d) If the amounts available for distribution with respect to the Series • Preferred Stock and
all other outstanding stock of the Company ranking on a parity with the Series • Preferred Stock
upon liquidation are not sufficient to satisfy the full liquidation rights of all the outstanding
Series • Preferred Stock and stock ranking on a parity therewith, then the holders of each series
of such stock will share ratably in any such distribution of assets in proportion to the full
respective preferential amount (which




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in the case of Preferred Stock may include accumulated dividends) to which they are entitled.




          IN WITNESS WHEREOF, Thomas Weisel Partners Group, Inc. has caused this Certificate to be
signed by                     , its [                    ], and attested by                     , its [Secretary], this ___
day of                     , 20___.




	 	 	 	 	 
	 	THOMAS WEISEL PARTNERS

GROUP, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Attest:

[Name and Title]





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