exv10w1



 






Exhibit 10.1




PARTNERS’ EQUITY AGREEMENT




Dated as of




February 7, 2006




 






By and Between




THOMAS WEISEL PARTNERS GROUP, INC.




and




THE PARTNERS




 









 





	 	 	 	 	 	 	 
	 	 	 	 	Page
	 

	 	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	RESTRICTIONS ON TRANSFER	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.01

	 	General Restrictions on Transfer
	 	 	2	 
	Section 1.02

	 	Legends
	 	 	2	 
	Section 1.03

	 	Permitted Transferees
	 	 	2	 
	Section 1.04

	 	Restrictions on Transfers by Shareholders
	 	 	3	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	REGISTRATION RIGHTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.01

	 	Demand Registration
	 	 	4	 
	Section 2.02

	 	Piggyback Registration
	 	 	7	 
	Section 2.03

	 	Lock-Up Agreements
	 	 	8	 
	Section 2.04

	 	Registration Procedures
	 	 	8	 
	Section 2.05

	 	Indemnification by the Company
	 	 	12	 
	Section 2.06

	 	Indemnification by Participating Shareholders
	 	 	12	 
	Section 2.07

	 	Conduct of Indemnification Proceedings
	 	 	13	 
	Section 2.08

	 	Contribution
	 	 	14	 
	Section 2.09

	 	Participation in Public Offering
	 	 	15	 
	Section 2.10

	 	Other Indemnification
	 	 	15	 
	Section 2.11

	 	Cooperation by the Company
	 	 	15	 
	Section 2.12

	 	No Transfer of Registration Rights
	 	 	15	 
	Section 2.13

	 	Underwritten Offering Committee
	 	 	15	 
	Section 2.14

	 	Term of Registration Rights
	 	 	16	 
	Section 2.15

	 	Other Agreements
	 	 	16	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	SHAREHOLDER COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.01

	 	Confidential Information
	 	 	16	 
	Section 3.02

	 	Noncompetition
	 	 	17	 
	Section 3.03

	 	Nonsolicitation of Clients
	 	 	18	 
	Section 3.04

	 	Nonsolicitation of Employees
	 	 	18	 
	Section 3.05

	 	Transfer of Client Relationships
	 	 	18	 
	Section 3.06

	 	Prior Notice Required
	 	 	19	 
	Section 3.07

	 	Shareholder Covenants Generally
	 	 	19	 
	Section 3.08

	 	Damages
	 	 	19	 
	Section 3.09

	 	Arbitration
	 	 	20	 
	Section 3.10

	 	Compensation
	 	 	20	 






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	 	 	 	 	Page
	 

	 	ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.01

	 	Binding Effect; Assignability; Benefit
	 	 	21	 
	Section 4.02

	 	Notices
	 	 	21	 
	Section 4.03

	 	Waiver; Amendment; Termination
	 	 	22	 
	Section 4.04

	 	Fees and Expenses
	 	 	22	 
	Section 4.05

	 	Governing Law
	 	 	22	 
	Section 4.06

	 	Jurisdiction
	 	 	22	 
	Section 4.07

	 	WAIVER OF JURY TRIAL
	 	 	23	 
	Section 4.08

	 	Specific Enforcement
	 	 	23	 
	Section 4.09

	 	Counterparts; Effectiveness
	 	 	23	 
	Section 4.10

	 	Entire Agreement
	 	 	23	 
	Section 4.11

	 	Captions
	 	 	23	 
	Section 4.12

	 	Severability
	 	 	23	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	DEFINITIONS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.01

	 	Definitions
	 	 	24	 
	 
	Exhibit A:

	 	Joinder Agreement to Partners’ Equity Agreement	 	 	 	 






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PARTNERS’ EQUITY AGREEMENT




          This PARTNERS’ EQUITY AGREEMENT (this “Agreement”), dated as of February 7, 2006, is
entered into by and between Thomas Weisel Partners Group, Inc., a Delaware corporation (the
“Company”) and the individuals listed on the signature page hereof (each, a
“Shareholder”). “Shareholder” shall mean, if such person shall have “Transferred” any of
his or her “Company Securities” to any of his or her respective “Permitted Transferees” (as such
terms are defined below), such person and such Permitted Transferees, taken together, and any
right, obligation or action that may be exercised or taken at the election of such person may be
taken at the election of such person and such Permitted Transferees. Capitalized terms used have
the meanings set forth in Article V.




W I T N E S S E T H:




          WHEREAS, pursuant to the Plan of Reorganization and Merger Agreement (the “Reorganization
Agreement”), dated as of October 14, 2005, by and among the Company, Thomas Weisel Partners
Group LLC (“TWPG LLC”) and TWPG Merger Sub LLC, the Company has agreed to succeed to the
businesses of TWPG LLC through reorganization transactions (the “Reorganization”)
involving, among others, the merger of TWPG Merger Sub LLC with and into TWPG LLC;




          WHEREAS, In connection with the Reorganization, the Shareholders will exchange his or her
interests in TWPG LLC for Common Shares (as defined below);




          WHEREAS, the parties hereto acknowledge that each Shareholder, as a result of his or her
relationship with TWPG LLC, has obtained knowledge of the Confidential Information (as defined
below), and that the Company’s future businesses rely, to a significant extent, upon such
Confidential Information and the goodwill of TWPG LLC in general;




          WHEREAS, the parties hereto acknowledge that, following consummation of the Reorganization, as
provided in and subject to the terms and conditions of this Agreement, the Shareholders may sell or
dispose of certain of his or her Company Securities (as defined below), and receive substantial
benefits as a result of the Reorganization.




          WHEREAS, the parties hereto desire to enter into this Agreement to govern certain of their
rights, duties and obligations after consummation of the Reorganization;




          NOW, THEREFORE, in consideration of the covenants and agreements contained herein and in the
Reorganization Agreement, the parties hereto agree as follows:




 









 








ARTICLE I




RESTRICTIONS ON TRANSFER




          Section 1.01 General Restrictions on Transfer. (a) Each Shareholder understands and
agrees that the Company Securities received by him or her pursuant to the Reorganization Agreement
have not been registered under the Securities Act and are restricted securities under the
Securities Act and the rules and regulations promulgated thereunder. Each Shareholder agrees that
he or she shall not Transfer any Company Securities (or solicit any offers in respect of any
Transfer of any Company Securities), except in compliance with the Securities Act, any other
applicable securities or “blue sky” laws, and the terms and conditions of this Agreement.




               (a) Any attempt to Transfer any Company Securities otherwise than in compliance with this
Agreement shall be null and void, and the Company shall not, and shall cause any transfer agent not
to, give any effect in the Company’s stock records to such attempted Transfer.



          Section 1.02 Legends. (a) In addition to any other legend that may be required under
the Reorganization Agreement or otherwise, each certificate for Company Securities issued to the
Shareholders shall bear a legend in substantially the following form:




THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY FOREIGN OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE PARTNERS’ EQUITY AGREEMENT, DATED AS
OF FEBRUARY ___, 2006, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM THOMAS
WEISEL PARTNERS GROUP, INC. OR ANY SUCCESSOR THERETO.



               (b) If any Company Securities shall cease to be Registrable Securities under clause (i) or
clause (ii) of the definition thereof, the Company, upon the written request of the holder thereof,
shall issue to such holder a new certificate evidencing such Company Securities without the first
sentence of the legend required by Section 1.02(a) endorsed thereon. If any Company Securities
cease to be subject to any and all restrictions on Transfer set forth in this Agreement, the
Company, upon the written request of the holder thereof, shall issue, or cause to be issued, to
such holder a new certificate evidencing such Company Securities without the second sentence of the
legend required by Section 1.02(a) endorsed thereon.



          Section 1.03 Permitted Transferees. Notwithstanding anything to the contrary in this
Agreement, a Shareholder may at any time Transfer any or all of his or




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her Company Securities to one or more of his or her Permitted Transferees without the consent
of the Company so long as (a) such Permitted Transferee has agreed in writing to be bound by the
terms of this Agreement pursuant to a Joinder Agreement in the form of Exhibit A attached hereto,
and (b) the Transfer to such Permitted Transferee is in compliance with the Securities Act and any
other applicable securities or “blue sky” laws.




          Section 1.04 Restrictions on Transfers by Shareholders. (a) Subject to Sections
1.04(b), 1.04(c) and 1.04(d), a Shareholder shall not Transfer any of his or her Company Securities
until after the fifth anniversary of the Closing Date, except to one or more of his or her
Permitted Transferees in accordance with Section 1.03; provided that, to the extent that at
the time of any proposed Transfer, in the reasonable judgment of the Underwritten Offering
Committee, the Shareholder continues to be actively engaged in the businesses of the Firm, his or
her Company Securities may be released from the restrictions on Transfers set forth in this Section
1.04(a) to permit that:





               (i) up to one-third of the Company Securities of such Shareholder may be Transferred
at any time after the third anniversary of the Closing Date (it being understood that, for
purposes of this clause, any Company Securities Transferred by such Shareholder pursuant to
Section 1.04(b)(i) on or prior to the third anniversary shall be included in calculating
the one-third permitted to be Transferred hereunder); and




               (ii) up to an additional one-third of the Company Securities of such Shareholder may
be Transferred at any time after the fourth anniversary of the Closing Date (it being
understood that, for purposes of this clause, any Company Securities Transferred by such
Shareholder pursuant to Section 1.04(b)(i) after the third anniversary but on or prior to
the fourth anniversary shall be included in calculating the additional one-third permitted
to be Transferred hereunder).



          (b) Notwithstanding the provisions of Section 1.04(a), a Shareholder may Transfer any of his
or her Company Securities as follows:





               (i) in a Public Offering in connection with the exercise of his or her rights under
Article II subject to the limitations set forth therein;




               (ii) following the termination of the employment of such Shareholder by the Company
due to the Shareholder’s death or disability, in a Transfer that meets all of the
requirements of Rule 144; or




               (iii) subject to the approval of the Underwritten Offering Committee, in a Transfer
with or without consideration of any kind (A) to a spouse, lineal descendant, sibling or
parent of the Shareholder (each, a “Family Member”), (B) a trust that is for the
exclusive benefit of such Shareholder and/or one or more Family Members and/or any
institution qualified as tax exempt under Section 501(c)(3) of the Code (“Charitable
Organization”) or (C) any



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Charitable Organization; provided, however, that in each case any such transferee
shall have agreed in writing to be bound by the terms of this Agreement pursuant to a
Joinder Agreement in the form of Exhibit A attached hereto, and such Transfer is in
compliance with the Securities Act and any other applicable securities or “blue sky” laws).




              (c) The restrictions on Transfers set forth in Section 1.04(a) shall not terminate with
respect to any Company Securities that have been pledged to the Company as security in connection
with the Shareholder Covenants until such time as the Shareholder Covenants shall have expired.




              (d) The restrictions on Transfers set forth in Section 1.04(a) shall terminate automatically
upon a Change of Control.



ARTICLE II




REGISTRATION RIGHTS




          Section 2.01 Demand Registration. (a) The Company shall give prompt notice to each
Shareholder (so long as such Shareholder is an Eligible Shareholder) of each Window Period, which
notice shall specify the Maximum Share Number. If at any time during a Window Period or at any
time following the fifth anniversary of the Closing Date, the Company shall receive a request from
the Shareholder (the “Requesting Shareholder”) that the Company effect the registration
under the Securities Act of all or any portion of such Requesting Shareholder’s Registrable
Securities, and specifying the intended method of disposition thereof, then the Company shall
promptly give notice of such requested registration (each such request shall be referred to herein
as a “Demand Registration”) to the Other Shareholders. The Company shall use its
commercially reasonable efforts to effect, subject to the provisions of Section 2.01(f), the
registration under the Securities Act of the Registrable Securities for which the Requesting
Shareholders have requested registration under this Section 2.01 and all other Registrable
Securities of the same class as those requested to be registered by the Requesting Shareholders
that any Other Shareholders with rights to request registration under Section 2.02 (all such Other
Shareholders, together with the Requesting Shareholders, the “Registering Shareholders”)
have requested the Company to register by request received by the Company within five (5) Business
Days after such Other Shareholders receive the Company’s notice of the Demand Registration, all to
the extent necessary to permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered, provided that,





               (i) subject to Section 2.01(d), the Company shall not be obligated to effect more than
two Demand Registrations in any twelve-month period,




               (ii) the Company shall not be obligated to effect a Demand Registration unless the
aggregate number of shares of the Registrable



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Securities requested to be included in such Demand Registration equals or exceeds 5%
of the Common Shares outstanding at the time the request for the Demand Registration is
made,




               (iii) the Company shall not be obligated to include in such registration a number of
Registrable Securities of the Shareholder which exceeds such Shareholder’s Pro Rata Portion
(unless any Other Shareholder who is an Eligible Shareholder shall choose not to
participate in such registration up to the full amount of such Other Shareholder’s Pro Rata
Portion, in which case each Registering Shareholder may choose to increase the number of
Registrable Securities to be included in such registration by his or her Pro Rata Portion
of the Shortfall subject to the provisions of Section 2.01(e)),




               (iv) the Company shall not be required to effect the registration of Registrable
Securities in excess of the Maximum Share Number (the limitations in clauses (ii), (iii)
and (iv) of this Section 2.01(a), collectively, the “Public Offering Limitations”),




               (v) in no event shall the Company be required to effect a Demand Registration from any
Requesting Shareholder unless such Requesting Shareholder at the time the request is made
(x) continues to be actively engaged in the businesses of the Firm (in the reasonable
judgment of the Underwritten Offering Committee), (y) has suffered a termination of
employment by the Firm resulting from a disability or (z) is a Permitted Transferee (a
Shareholder who fulfills the criteria in clauses (x)-(z) of this Section 2.01(a)(v), an
“Eligible Shareholder”), and




               (vi) The Company shall not be required to effect a Demand Registration within 180 days
of a Piggyback Registration effected pursuant to Section 2.02.



               (b) Promptly after the expiration of the five (5) Business-Day period referred to in Section
2.01(a), the Company will notify all Registering Shareholders of the identities of the other
Registering Shareholders and the number of shares of Registrable Securities requested to be
included therein. At any time prior to the effective date of the registration statement relating
to such registration, the Requesting Shareholder may revoke such request, without liability to any
of the other Registering Shareholders, by providing a notice to the Company revoking such request.
A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation
arose out of the fault of the Company (in which case the Company shall be obligated to pay all
Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder
reimburses the Company for all Registration Expenses in connection with such revoked request.



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               (c) The Company shall be liable for and pay all Registration Expenses in connection with any
Demand Registration, regardless of whether such Registration is effected, except as set forth in
Section 2.01(b).



               (d) A Demand Registration shall not be deemed to have occurred:




               (i) unless the registration statement relating thereto has become effective under the
Securities Act; provided that such registration statement shall not be considered a Demand
Registration if, after such registration statement becomes effective, such registration
statement is interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court; or




               (ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such
that less than 66 2/3% of the Registrable Securities of the Registering Shareholders sought
to be included in such registration are included.



               (e) If a Demand Registration involves an underwritten Public Offering and the managing
underwriter advises the Company and the Registering Shareholders that, in its view, the number of
shares of Registrable Securities requested to be included in such registration (including any
securities that the Company proposes to be included or are otherwise contractually required to be
included that are not Registrable Securities under this Agreement) exceeds the largest number of
shares that can be sold without having an adverse effect on such offering, including the price at
which such shares can be sold (the “Maximum Offering Size”), the Company shall include in
such registration, in the priority listed below, up to the Maximum Offering Size:





               (i) first, so much of the Company Securities proposed to be registered for the account
of the Company as would not cause the offering to exceed the Maximum Offering Size,




               (ii) second, all Registrable Securities requested to be included in such registration
by the Registering Shareholders who are Eligible Shareholders and all Company Securities
contractually required to be registered for the account of any other Persons (allocated, if
necessary for the offering not to exceed the Maximum Offering Size, pro rata among such
Holders and such other Persons on the basis of the relative number of Registrable
Securities or such other Company Securities so requested to be included in such
registration by each such Registering Shareholder and such other Person), and




               (iii) third, any Company Securities proposed, but not contractually required, to be
registered for the account of any other Persons with such priorities among them as the
Company may determine.



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               (f) Upon notice to each Requesting Shareholder, the Company may defer the filing of a
registration statement pursuant to this Section 2.01 for a reasonable period of time not exceeding
90 days if (i) at the time the Company receives the request for such Demand Registration, there is
(A) material non-public information regarding the Company which, in the judgment of the Board, is
not in the Company’s best interest to disclose and which the Company is not otherwise required to
disclose or (B) there is a significant business opportunity (including, but not limited to, the
acquisition or disposition of assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer or other similar transaction) available to the Company which, in the
judgment of the Board, is not in the Company’s best interest to disclose; or (ii) prior to
receiving the request for such Demand Registration, the Company has determined to effect an
offering in connection with which equity securities of the Company are sold to an underwriter or
underwriters for reoffering to the public pursuant to an effective registration statement under the
Securities Act, and the Company has determined to proceed with such offering.



          Section 2.02 Piggyback Registration. (a) If the Company proposes to register any of
the equity securities issued by it under the Securities Act (other than a registration relating to
Common Shares issuable upon exercise of employee stock options or in connection with any employee
benefit or similar plan of the Company or in connection with a direct or indirect acquisition by
the Company of another Person on Form S-8 or S-4, or any successor or similar forms), whether or
not for sale for its own account, the Company shall each such time give notice at least ten (10)
Business Days prior to the anticipated filing date of the registration statement relating to such
registration to each Shareholder (so long as such Shareholder is then an Eligible Shareholder),
which notice shall set forth such Shareholder’s rights under this Section 2.02 and shall offer such
Shareholder the opportunity to include in such registration statement the number of Registrable
Securities of the same class or series as those proposed to be registered as such Shareholder may
request (a “Piggyback Registration”), subject to the provisions of Section 2.02(b) and the
Public Offering Limitations. Upon the request of such Shareholder (if such Shareholder is then an
Eligible Shareholder) made within five (5) Business Days after the receipt of notice from the
Company (which request shall specify the number of Registrable Securities intended to be registered
by such Shareholder), the Company shall use its commercially reasonable efforts to effect the
registration under the Securities Act of all Registrable Securities that the Company has been so
requested to register by all such other Shareholders, to the extent necessary to permit the
disposition of the Registrable Securities so to be registered, provided that (i) if such
registration involves an underwritten public offering, all such Shareholders requesting to be
included in the Company’s registration must sell their Registrable Securities to the underwriters
selected by the Company on the same terms and conditions as apply to the Company or the Requesting
Shareholders, as applicable, and (ii) if, at any time after giving notice of its intention to
register any Company Securities pursuant to this Section 2.02(a) and prior to the effective date of
the registration statement filed in connection with such registration, the Company shall determine
for any reason not to register such securities, the Company shall give notice to





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all such Shareholders and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration. No registration effected under this
Section 2.02 shall relieve the Company of its obligations to effect a Demand Registration to the
extent required by Section 3.01. The Company shall pay all Registration Expenses in connection
with each Piggyback Registration.




          (b) If a Piggyback Registration involves an underwritten Public Offering (other than any
Demand Registration, in which case the provisions with respect to priority of inclusion in such
offering set forth in Section 2.01(e) shall apply) and the managing underwriter advises the Company
that, in its view, the number of Shares that the Company and such Shareholders intend to include in
such registration exceeds the Maximum Offering Size, the Company shall include in such
registration, in the following priority, up to the Maximum Offering Size:





     (i) first, so much of the Company Securities proposed to be registered for the account
of the Company as would not cause the offering to exceed the Maximum Offering Size, and




     (ii) second, all Registrable Securities requested to be included in such registration
by any Shareholders who are Eligible Shareholders pursuant to Section 2.02 and all
securities contractually required to be registered for the account of any other Persons
(allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata
among such Shareholders and such other Persons on the basis of the relative number of
Registrable Securities or such other Company Securities so requested to be included in such
registration by each such Shareholder and such other Person), and




     (iii) third, any Company Securities proposed, but not contractually required, to be
registered for the account of any other Persons with such priorities among them as the
Company shall determine.



     Section 2.03 Lock-Up Agreements. If any registration of Registrable Securities shall
be effected in connection with a Public Offering, each Shareholder shall not offer to sell,
contract to sell, or otherwise sell, dispose of, loan, pledge or grant any rights with respect to
any Common Shares, any options or warrants to purchase any Common Shares, or any securities
convertible into or exchangeable for any Common Shares now owned or hereafter acquired directly by
such Shareholder or with respect to which such Shareholder has or hereafter acquires the power of
disposition (except as part of such Public Offering) during the period beginning on the effective
date of the applicable registration statement until the earlier of (i) such time as the Company and
the managing underwriter shall agree and (ii) 215 days (such period, the “Lock-Up Period” for the
applicable registration statement).



     Section 2.04 Registration Procedures. Whenever a Shareholder requests that any
Registrable Securities be registered pursuant to Section 2.01 or 2.02, subject to the provisions of
such Sections, the Company shall use its commercially



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reasonable efforts to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof as quickly as practicable and, in
connection with any such request:



          (a) The Company shall prepare and file with the SEC a registration statement on any form for
which the Company then qualifies or that counsel for the Company shall deem appropriate and which
form shall be available for the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its commercially reasonable
efforts to cause such filed registration statement to become and remain effective for a period of
not less than 180 days (or such shorter period in which all of the Registrable Securities of the
Registering Shareholders included in such registration statement shall have actually been sold
thereunder).




          (b) Prior to filing a registration statement or prospectus or any amendment or supplement
thereto, the Company shall, if requested, furnish to each participating Shareholder and each
underwriter, if any, of the Registrable Securities covered by such registration statement copies of
such registration statement as proposed to be filed, and thereafter, to the extent such documents
are not publicly available on the SEC’s EDGAR website, the Company shall furnish to such
Shareholder and each underwriter, without charge, at least one conformed copy of each registration
statement and each amendment thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent
requested by such Shareholder (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the SEC. The Shareholder shall have the right to
request that the Company modify any information contained in such registration statement, amendment
and supplement thereto pertaining to such Shareholder and the Company shall use its commercially
reasonable efforts to comply with such request; provided, however, that the Company shall not have
any obligation so to modify any information if the Company reasonably expects that doing so would
cause the prospectus to contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading.




          (c) After the filing of the registration statement, the Company shall (i) cause the related
prospectus to be supplemented by any required prospectus supplement, and, as so supplemented, to be
filed pursuant to Rule 424 under the Securities Act, (ii) comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance with the intended methods of
disposition by the Registering Shareholders thereof set forth in such registration statement or
supplement to such prospectus and (iii) promptly notify each Registering Shareholder holding
Registrable Securities covered by such registration statement of any stop order issued or
threatened by the SEC or any state securities commission and take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered.




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          (d) The Company shall use its commercially reasonable efforts to (i) register or qualify the
Registrable Securities covered by such registration statement under such other securities or “blue
sky” laws of such jurisdictions in the United States as any Registering Shareholder holding such
Registrable Securities reasonably (in light of such Shareholder’s intended plan of distribution)
requests and (ii) cause such Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the business and operations
of the Company and do any and all other acts and things that may be reasonably necessary or
advisable to enable such Shareholder to consummate the disposition of the Registrable Securities
owned by such Shareholder; provided that the Company shall not be required to (A) qualify generally
to do business in any jurisdiction where it would not otherwise be required to qualify but for this
Section 2.04(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.




          (e) The Company shall immediately notify each Registering Shareholder holding such Registrable
Securities covered by such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and promptly prepare and make available to each such
Shareholder and file with the SEC any such supplement or amendment.




          (f) The Company shall select an underwriter or underwriters in connection with any Public
Offering. In connection with any Public Offering, the Company shall enter into customary
agreements (including an underwriting agreement in customary form) and take such all other actions
as are reasonably required in order to expedite or facilitate the disposition of such Registrable
Securities in any such Public Offering, including the engagement of a “qualified independent
underwriter” in connection with the qualification of the underwriting arrangements with the NASD.




          (g) Upon execution of confidentiality agreements in form and substance reasonably satisfactory
to the Company, the Company shall make available for inspection by any Registering Shareholder and
any underwriter participating in any disposition pursuant to a registration statement being filed
by the Company pursuant to this Section 2.04 and any attorney, accountant or other professional
retained by any such Shareholder or underwriter (collectively, the “Inspectors”), all
financial and other records, pertinent corporate documents and properties of the Company
(collectively, the “Records”) as shall be reasonably necessary or desirable to enable them
to exercise their due diligence responsibility, and cause the Company’s officers, directors and
employees to supply all information reasonably requested by any Inspectors in connection with such
registration statement. Records that the Company determines, in good faith, to be confidential and
that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless
(i) disclosure of such information is required by court or


-10-









 







administrative order or is necessary to respond to inquiries of regulatory authorities; (ii)
disclosure of such information, in the opinion of counsel to such Person, is required by law; (iii)
such information becomes generally available to the public other than as a result of a disclosure
or failure to safeguard by such Person or (iv) such information becomes available to such Person
from a source other than the Company and such source is not known by such Person to be bound by a
confidentiality agreement with the Company. The Shareholder agrees that information obtained by it
as a result of such inspections shall be deemed confidential and shall not be used by it or its
Affiliates as the basis for any market transactions in the Company Securities unless and until such
information is made generally available to the public. The Shareholder further agrees that, upon
learning that disclosure of such Records is required by court or administrative order or necessary
to respond to inquiries of regulatory authorities, it shall give prompt notice to the Company in
advance of such disclosure and allow the Company to undertake appropriate action to prevent
disclosure of the Records deemed confidential.




          (h) The Company shall furnish to each Registering Shareholder and to each such underwriter, if
any, a signed counterpart, addressed to such Shareholder or underwriter, of a comfort letter or
comfort letters from the Company’s independent public accountants, in form and substance as are
customary in connection with underwritten public offerings.




          (i) The Company may require each such Registering Shareholder promptly to furnish in writing
to the Company such information regarding the distribution of the Registrable Securities as the
Company may from time to time reasonably request and such other information as may be legally
required in connection with such registration.




          (j) The Shareholder agrees that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Section 2.04(e), such Shareholder shall forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Shareholder’s receipt of the copies of the supplemented or
amended prospectus contemplated by Section 2.04(e), and, if so directed by the Company, such
Shareholder shall deliver to the Company all copies, other than any permanent file copies then in
such Shareholder’s possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. If the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained effective (including
the period referred to in Section 2.04(a)) by the number of days during the period from and
including the date of the giving of notice pursuant to Section 2.04(e) to the date when the Company
shall make available to such Shareholder a prospectus supplemented or amended to conform with the
requirements of Section 2.04(e).




          (k) The Company shall use its commercially reasonable efforts to list all Registrable
Securities covered by such registration statement on any securities




-11-









 







exchange or quotation system on which any of the Registrable Securities are then listed or
traded.




          (l) The Company shall have appropriate officers of the Company (i) prepare and make
presentations at any “road shows” and before analysts and rating agencies, as the case may be, (ii)
take other actions to obtain ratings for any Registrable Securities and (iii) otherwise use their
commercially reasonable efforts to cooperate as reasonably requested by the underwriters in the
offering, marketing or selling of the Registrable Securities.




     Section 2.05 Indemnification by the Company. The Company agrees to indemnify and hold
harmless each Registering Shareholder holding Registrable Securities covered by a registration
statement, its officers, directors, employees, partners and agents, and each Person, if any, who
controls such Shareholder (within the meaning of Section 15 of the Securities Act) from and against
any and all losses, claims, damages, liabilities and expenses (including reasonable expenses of
investigation and reasonable attorneys’ fees and expenses) (“Damages”) arising out of or
relating to any untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or arising out of or relating to any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such Damages are caused by or related to any such untrue
statement or omission or alleged untrue statement or omission so made based upon information
furnished in writing to the Company by such Shareholder or on such Shareholder’s behalf expressly
for use therein; provided that, with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, or in any prospectus, as the case may be,
the indemnity agreement contained in this paragraph shall not apply to the extent that any Damages
result from the fact that a current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) was not sent or given to the Person asserting any such Damages at
or prior to the written confirmation of the sale of the Registrable Securities concerned to such
Person if it is determined that the Company has provided such prospectus to such Shareholder and it
was the responsibility of such Shareholder to provide such Person with a current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be) and such current copy
of the prospectus (or such amended or supplemented prospectus, as the case may be) would have cured
the defect giving rise to such Damages. The Company also agrees to indemnify any underwriters of
the Registrable Securities, their officers and directors and each Person who controls such
underwriters (within the meaning of Section 15 of the Securities Act) on substantially the same
basis as that of the indemnification of the Shareholders provided in this Section 2.05.



     Section 2.06 Indemnification by Participating Shareholders. Each Shareholder holding
Registrable Securities included in any registration statement agrees



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to indemnify and hold harmless the Company, its officers, directors, agents and employees and
each Person who controls the Company (within the meaning of Section 15 of the Securities Act) to
the same extent as the foregoing indemnity from the Company to such Shareholder, but only (i) with
respect to information furnished in writing by such Shareholder or on such Shareholder’s behalf
expressly for use in any registration statement or prospectus relating to the Registrable
Securities, or any amendment or supplement thereto, or any preliminary prospectus or (ii) to the
extent that any Damages result from the fact that a current copy of the prospectus (or such amended
or supplemented prospectus, as the case may be) was not sent or given to the Person asserting any
such Damages at or prior to the written confirmation of the sale of the Registrable Securities
concerned to such Person if it is determined that it was the responsibility of such Shareholder to
provide such Person with a current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) and such current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) would have cured the defect giving rise to such loss,
claim, damage, liability or expense. The Shareholder also agrees to indemnify and hold harmless
underwriters of the Registrable Securities, their officers and directors and each Person who
controls such underwriters (within the meaning of Section 15 of the Securities Act) on
substantially the same basis as that of the indemnification of the Company provided in this Section
2.06. As a condition to including Registrable Securities in any registration statement filed in
accordance with Article II, the Company may require that it shall have received an undertaking
reasonably satisfactory to it from any underwriter to indemnify and hold it harmless to the extent
customarily provided by underwriters with respect to similar securities.



     Section 2.07 Conduct of Indemnification Proceedings. If any proceeding (including any
governmental investigation) shall be instituted involving any Person in respect of which indemnity
may be sought pursuant to this Article II, such Person (an “Indemnified Party”) shall
promptly notify the Person against whom such indemnity may be sought (the “Indemnifying
Party”) in writing and the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Party, and shall assume the
payment of all fees and expenses, provided that the failure of any Indemnified Party so to notify
the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except
to the extent that the Indemnifying Party is materially prejudiced by such failure to notify. In
any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such
counsel or (ii) in the reasonable judgment of such Indemnified Party representation of both parties
by the same counsel would be inappropriate due to actual or potential differing interests between
them. It is understood that, in connection with any proceeding or related proceedings in the same
jurisdiction, the Indemnifying Party shall not be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at any time for all
such Indemnified Parties, and that all such fees and expenses shall be reimbursed as they



-13-









 







are incurred. In the case of any such separate firm for the Indemnified Parties, such firm
shall be designated in writing by the Indemnified Parties. The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its written consent, but if settled
with such consent, or if there be a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment. Without the prior written consent
of the Indemnified Party, no Indemnifying Party shall effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability arising out of such
proceeding.



     Section 2.08 Contribution. If the indemnification provided for in this Article II is
unavailable to the Indemnified Parties in respect of any Damages, then each such Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Damages (i) as between the Company and the
Registering Shareholder holding Registrable Securities covered by a registration statement, on the
one hand, and the underwriters, on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and such Shareholder on the one hand and the underwriters
on the other, from the offering of the Registrable Securities or, if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits but also the relative fault of the Company and such Shareholder, on the one hand, and of
such underwriters, on the other, in connection with the statements or omissions that resulted in
such Damages, as well as any other relevant equitable considerations and (ii) as between the
Company, on the one hand, and such Shareholder, on the other, in such proportion as is appropriate
to reflect the relative fault of the Company and of such Shareholder in connection with such
statements or omissions, as well as any other relevant equitable considerations. The relative
benefits received by the Company and such Shareholder, on the one hand, and such underwriters, on
the other, shall be deemed to be in the same proportion as the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses) received by the
Company and such Shareholder bear to the total underwriting discounts and commissions received by
such underwriters, in each case as set forth in the table on the cover page of the prospectus. The
relative fault of the Company and such Shareholder, on the one hand, and of such underwriters, on
the other, shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and such Shareholder or by such underwriters. The
relative fault of the Company, on the one hand, and of such Shareholder, on the other, shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by such party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.



-14-









 





     The Company and each Shareholder agree that it would not be just and equitable if contribution
pursuant to this Section 2.08 were determined by pro rata allocation (even if the underwriters were
treated as one entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Party as a result of the Damages referred to in the
immediately preceding paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent misrepresentation. The
contribution agreement contained in this Section 2.08 is in addition to any liability that the
Indemnifying Parties may have to the Indemnified Parties.



     Section 2.09 Participation in Public Offering. No Person may participate in any
Public Offering hereunder unless such Person (i) agrees to sell such Person’s securities on the
basis provided in any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required under the terms of
such underwriting arrangements and the provisions of this Agreement in respect of registration
rights.



     Section 2.10 Other Indemnification. Indemnification similar to that specified herein
(with appropriate modifications) shall be given by the Company and each Registering Shareholder
participating therein with respect to any required registration or other qualification of
securities under any federal or state law or regulation or governmental authority other than the
Securities Act.



     Section 2.11 Cooperation by the Company. If a Shareholder shall transfer any
Registrable Securities pursuant to Rule 144, the Company shall cooperate, to the extent
commercially reasonable, with such Shareholder and shall provide to such Shareholder such
information as such Shareholder shall reasonably request.



     Section 2.12 No Transfer of Registration Rights. None of the rights of a Shareholder
under this Article II shall be assignable by such Shareholder to any Person acquiring Securities in
any Public Offering or pursuant to Rule 144.



     Section 2.13 Underwritten Offering Committee. The Shareholder acknowledges that the
Board has the power, at any time, to alter the composition, mandate and authority of the
Underwritten Offering Committee. The Shareholder has been informed by the Company that the
Underwritten Offering Committee (i) shall initially include Thomas W. Weisel, who will chair the
committee, and (ii) shall act with the unanimous approval of the members of the committee.



-15-









 





     Section 2.14 Term of Registration Rights. The Company agrees that, subject to Section
4.03(b), the rights of a Shareholder with respect to the registration rights granted pursuant to
this Agreement shall remain in effect, subject to the terms and conditions hereof, so long as there
are Registrable Securities issued and outstanding.



     Section 2.15 Other Agreements. Following the Closing Date, the Company agrees that:



          (a) it will file the reports required to be filed by the Company under the Exchange Act, so as
to enable a Shareholder to sell Registrable Securities pursuant to Rule 144;




          (b) it shall cooperate with such Shareholder in connection with any sale or other disposition
by such Shareholder of any Registrable Securities pursuant to Rule 144;




          (c) it will take such action as such Shareholder may reasonably request, to the extent
required from time to time to enable such Shareholder to sell its Registrable Securities without
registration under the Securities Act within the limitation of the exemptions provided by Rule 144,
including providing any legal opinions; and




          (d) upon the request of such Shareholder, it shall deliver to such Shareholder a written
certification of a duly authorized officer as to whether it has complied with such requirements.




ARTICLE III




SHAREHOLDER COVENANTS




     Section 3.01 Confidential Information. In the course of involvement in the Firm’s
activities or otherwise, each Shareholder has obtained or may obtain confidential information
concerning the Firm’s businesses, strategies, operations, financial affairs, organizational and
personnel matters (including information regarding any aspect of the Shareholder’s tenure as a
Managing Director of the Company or of the termination of such employment), policies, procedures
and other non-public matters, or concerning those of third parties. Such information
(“Confidential Information”) may have been or be provided in written or electronic form or
orally. In consideration of, and as a condition to, continued access to Confidential Information,
and without prejudice to or limitation on any other confidentiality obligations imposed by
agreement or by law, each Shareholder hereby undertakes to use and protect Confidential Information
in accordance with any restrictions placed on its use or disclosure. Without limiting the
foregoing, except as authorized by the Firm or as required by law, each Shareholder may not
disclose or allow disclosure of any Confidential Information, or of any information derived
therefrom, in whatever form, to any person unless such person is a director, officer, partner,
employee, attorney or agent of the Firm and, in such Shareholder’s reasonable good faith judgment,
has a need to know the Confidential Information or



-16-









 




information derived therefrom in furtherance of the business of the Firm. The foregoing
obligations will survive, and remain binding and enforceable notwithstanding, any termination of a
Shareholder’s employment and any settlement of the financial rights and obligations arising from a
Shareholder’s employment. Without limiting the foregoing, the existence of, and any information
concerning, any dispute between a Shareholder and the Firm shall constitute Confidential
Information except that a Shareholder may disclose information concerning such dispute to the
arbitrator that is considering such dispute, or to such Shareholder’s legal counsel (provided that
such counsel agrees not to disclose any such information other than as necessary to the prosecution
or defense of the dispute).




     Section 3.02 Noncompetition. (a) In view of each Shareholder’s importance to the
Firm, each Shareholder hereby agrees that the Firm would likely suffer significant harm from such
Shareholder’s competing with the Firm during such Shareholder’s Employment Period (as defined in
the Employment Agreement) and for some period of time thereafter. Accordingly, each Shareholder
hereby agrees that such Shareholder will not, without the written consent of the Company, during
the Employment Period and for twelve months following the Date of Termination:




     (i) form, or acquire a 5% or greater equity ownership, voting or profit participation
interest in, any Competitive Enterprise; or




     (ii) associate (including, but not limited to, association as an officer, employee,
partner, director, consultant, agent or advisor) with any Competitive Enterprise and in
connection with such association engage in, or directly or indirectly manage or supervise
personnel engaged in, any activity




     (1) which is similar or substantially related to any activity
in which such Shareholder was engaged, in whole or in part, at the
Firm,




     (2) for which such Shareholder had direct or indirect
managerial or supervisory responsibility at the Firm, or




     (3) which calls for the application of the same or similar
specialized knowledge or skills as those utilized by such
Shareholder in such Shareholder’s activities at the 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 such action), and,
in any such case, irrespective of the purpose of the activity or whether
the activity is or was in furtherance of advisory, agency, proprietary or
fiduciary business of either the Firm or the Competitive Enterprise.



-17-









 






(By way of example only, this provision precludes an “advisory” investment
banker from joining a leveraged-buyout firm or a research analyst from
becoming a proprietary trader or joining a hedge fund, in each case
without the written consent of the Company)



          (b) For purposes of the Shareholder Covenants, a “Competitive Enterprise” is a
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 (for anyone other than such Shareholder and members of such
Shareholder’s family), merchant banking, asset or hedge fund management, securities brokerage,
sales, lending, custody, clearance, settlement or trading.




          (c) For purposes of the Shareholder Covenants, “Date of Termination” means such
Shareholder’s Date of Termination (as defined in the Employment Agreement).




     Section 3.03 Nonsolicitation of Clients. (a) Each Shareholder hereby agrees that
during the Employment Period and for twelve months following the Date of Termination, such
Shareholder will not, in any manner, directly or indirectly, (1) Solicit a Client to transact
business with a Competitive Enterprise or to reduce or refrain from doing any business with the
Firm or (2) interfere with or damage (or attempt to interfere with or damage) any relationship
between the Firm and a Client.



          (b) For purposes of the Shareholder Covenants, the term “Solicit” means any direct or
indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising,
encouraging or requesting any person or entity, in any manner, to take or refrain from taking any
action.




          (c) For purposes of the Shareholder Covenants, the term “Client” means any client or
prospective client of the Firm to whom such Shareholder provided services, or for whom such
Shareholder transacted business, or whose identity became known to such Shareholder in connection
with such Shareholder’s relationship with or employment by the Firm.




     Section 3.04 Nonsolicitation of Employees. Each Shareholder hereby agrees that during
the Employment Period and for twelve months following the Date of Termination, such Shareholder
will not, in any manner, directly or indirectly, Solicit any person who is an Employee to resign
from the Firm or to apply for or accept employment with any Competitive Enterprise.



     Section 3.05 Transfer of Client Relationships. (a) During the Coverage Period, each
Shareholder hereby agrees to take all actions and do all such things as may be reasonably requested
by the Firm from time to time to maintain for the



-18-









 







Firm the business, goodwill, and business relationships with any of the Firm’s Clients with
whom such Shareholder worked during the term of such Shareholder’s employment.



          (b) For purposes of the Shareholder Covenants, the term “Coverage Period” means the
90-day period beginning on the date on which notice of such Shareholder’s termination of employment
is delivered to or by the Firm, or in the case of termination for Cause or on account of Extended
Absence (each as defined in the Employment Agreement), the 90-day period beginning on the Date of
Termination.




     Section 3.06 Prior Notice Required. Each Shareholder hereby agrees that prior to
accepting employment with any other person or entity during the Employment Period or during the
twelve months following the Date of Termination, such Shareholder will provide such prospective
employer with written notice of the provisions of this Agreement, with a copy of such notice
delivered simultaneously to the General Counsel of the Company.



     Section 3.07 Shareholder Covenants Generally. (a) Each Shareholder’s covenants as
set forth in Sections 3.01 through 3.06 of this Agreement are from time to time referred to herein
as the “Shareholder Covenants.” If any of the Shareholder Covenants is finally held to be
invalid, illegal or unenforceable (whether in whole or in part), such Shareholder Covenant shall be
deemed modified to the extent, but only to the extent, of such invalidity, illegality or
unenforceability and the remaining Shareholder Covenants shall not be affected thereby;
provided, however, that if any of the Shareholder Covenants is finally held to be
invalid, illegal or unenforceable because it exceeds the maximum scope determined to be acceptable
to permit such provision to be enforceable, such Shareholder Covenant will be deemed to be modified
to the minimum extent necessary to modify such scope in order to make such provision enforceable
hereunder.



          (b) Each Shareholder understands that the Shareholder Covenants may limit such Shareholder’s
ability to earn a livelihood in a business similar to the business of the Firm.




          (c) Each Shareholder acknowledges that a violation on such Shareholder’s part of any of the
Shareholder Covenants would cause irreparable damage to the Firm. Accordingly, each Shareholder
agrees that the Firm will be entitled to injunctive relief for any actual or threatened violation
of any of the Shareholder Covenants in addition to any other remedies it may have.




     Section 3.08 Damages. (a) Each Shareholder acknowledges that such Shareholder’s
compliance with the Shareholder Covenants is an important factor to the continued success of the
Firm’s operations and its future prospects. Each Shareholder and the Company agree that if at any
time such Shareholder were to breach any of the Shareholder Covenants, the damages to the Firm
would be material, but that the amount of such damages would be uncertain and not readily
ascertainable. Accordingly, each Shareholder and the Company agree that if such Shareholder
breaches any of the



-19-









 







Shareholder Covenants at any time, such Shareholder shall forfeit to the Company that number
of his or her Company Securities that remain subject to the restrictions on Transfer under Section
1.04(a) of this Agreement at such time (it being understood that, for purposes of this Section
3.08, any Transfers otherwise permitted under Section 1.04(b) at such time shall be prohibited with
respect to the Shareholder), with a Fair Market Value at such time equal to the dollar amount (the
“Liquidated Damages”) communicated to such Shareholder by the Company on or prior to the
date hereof and, if the Fair Market Value of his or her Company Securities that remain subject to
the restrictions on Transfer under Section 1.04(a) of this Agreement at such time is less than the
Liquidated Damages, a cash payment by such Shareholder to the Company equal to such difference.



          (b) Each Shareholder and the Company agree that the Liquidated Damages are reasonable in
proportion to the probable damages likely to be sustained by the Firm if such Shareholder breaches
at any time any of the Shareholder Covenants, that the amount of actual damages to be sustained by
the Firm in the event of such breach is incapable of precise estimation and that such forfeiture is
not intended to constitute a penalty or punitive damages for any purposes. The forfeiture by such
Shareholder of his or her Company Securities or any cash payment by such Shareholder as the
Liquidated Damages will not be construed as a release or waiver by the Company of the right to
prevent the continuation of any such violation of such Shareholder Covenants in equity (including
injunctive relief) or otherwise.




          (c) Each Shareholder acknowledges and agrees that such Shareholder’s obligations under this
Section 3.08 will be full recourse obligations and will be secured pursuant to the Pledge
Agreement.




          (d) Each Shareholder acknowledges and agrees that the Liquidated Damages pursuant to this
Section 3.08 shall be in addition to, and not in lieu of, any required forfeitures of awards that
may be granted to such Shareholder in the future under one or more of the Company’s compensation
and benefit plans.




     Section 3.09 Arbitration. Any dispute, controversy or claim between a Shareholder and
the Firm arising out of or relating to or concerning the provisions of the Shareholder Covenants,
the Pledge Agreement, any agreement between a Shareholder and the Company relating to or arising
out of such Shareholder’s employment with the Firm or otherwise concerning any rights, obligations
or other aspects of such Shareholder’s employment relationship in respect of the Firm
(“Employment Related Matters”) shall be finally settled by arbitration in New York City
before, and in accordance with the rules then obtaining of, the NASD or, if the NASD declines to
arbitrate the matter, the AAA in accordance with the commercial arbitration rules of the AAA.



     Section 3.10 Compensation. Each Shareholder hereby acknowledges that the Company
intends to maintain the Company’s total compensation and benefits



-20-









 







expense, including that payable to the Shareholders as employees but excluding equity awards
to be made in connection with the initial public offering of Common Shares, at between 55% and 58%
of its net revenues in each fiscal year, beginning in 2006 (although the Company retains the
ability to change this rate in the future). Compensation and benefits expense will include, among
other things, all salaries, bonus and other compensation (both cash and non-cash) paid by the
Company and its subsidiaries to their employees.



ARTICLE IV




MISCELLANEOUS




     Section 4.01 Binding Effect; Assignability; Benefit. (a) This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective heirs, successors,
legal representatives and permitted assigns. A Shareholder shall cease to be bound by the terms
hereof when such Shareholder ceases to own beneficially any Company Securities (other than (i) the
provisions of Sections 2.05, 2.06, 2.07, 2.08 and 2.10 applicable to such Shareholder with respect
to any offering of Registrable Securities completed before the date such Shareholder ceased to own
any Company Securities; (ii) Article III and (iii) Sections 4.02, 4.04, 4.05, 4.06, 4.07 and 4.08).



          (b) Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or
by reason hereof shall be assignable by any party hereto pursuant to any Transfer of Company
Securities or otherwise, except that any Permitted Transferee acquiring Company Securities shall
(unless already bound hereby) execute and deliver to the Company an agreement to be bound by this
Agreement in the form of Exhibit A hereto and shall thenceforth be a “Shareholder”.




          (c) Nothing in this Agreement, expressed or implied, is intended to confer on any Person other
than the parties hereto, and their respective heirs, successors, legal representatives and
permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this
Agreement.




     Section 4.02 Notices. All notices, requests and other communications to any party
shall be in writing and shall be delivered in person, mailed by certified or registered mail,
return receipt requested, or sent by facsimile transmission,



	 	 	 	 	 
	 	 	if to the Company to:
	 
	 	 	 	 
	 

	 	 	 	Thomas Weisel Partners Group, Inc.
	 

	 	 	 	One Montgomery Street
	 

	 	 	 	San Francisco, CA 94104
	 

	 	 	 	Attention: General Counsel
	 

	 	 	 	fax: (415) 364-2694






-21-









 






	 	 	 	 	 
	 	 	with a copy to:

 
	 

	 	 	 	Sullivan & Cromwell LLP
	 

	 	 	 	1870 Embarcadero Road
	 

	 	 	 	Palo Alto, CA 94303
	 

	 	 	 	Attention: Scott D. Miller, Esq.
	 

	 	 	 	fax: (650) 461-5700
	 
	 	 	 	 
	 	 	if to a Shareholder, to the last known address
of such Shareholder set forth in the records
maintained by the Company.






     Any and all notices or other communications or deliveries required or permitted to be provided
pursuant to this Agreement shall be in writing and shall be deemed to have been effectively given
(a) upon personal delivery to the party to be notified, (b) when sent by confirmed telex or
facsimile if sent during normal business hours of the party to be notified or, if not, then on the
next Business Day, (c) five Business Days after having been sent by registered or certified mail,
return receipt requested, postage prepaid or (d) one Business Day after deposit with a nationally
recognized overnight courier, specifying next Business Day delivery, with written verification of
receipt.



     Any Person that becomes a Shareholder shall provide its address and fax number to the Company.



     Section 4.03 Waiver; Amendment; Termination. (a) No provision of this Agreement may
be waived except by an instrument in writing executed by the party against whom the waiver is to be
effective. No provision of this Agreement may be amended or otherwise modified except by an
instrument in writing executed by the Company with approval of the Board.



          (b) This Agreement shall terminate on the tenth anniversary of the date hereof unless earlier
terminated.




     Section 4.04 Fees and Expenses. Except as otherwise provided in this Agreement, each
party hereto shall pay its own fees and expenses incurred in connection with the preparation of
this Agreement, or any amendment or waiver hereof, and the transactions contemplated hereby and all
matters related hereto.



     Section 4.05 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.



     Section 4.06 Jurisdiction. The parties hereby agree that, unless otherwise set forth
in this Agreement, any suit, action or proceeding seeking to enforce any provision of, or based on
any matter arising out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought in the United States



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District Court for the Northern District of California
or any California State court sitting in San Francisco, so long as one of such courts shall have
subject matter jurisdiction over
such suit, action or proceeding, and that any case of action arising out of this Agreement
shall be deemed to have arisen from a transaction of business in the State of California, and each
of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such court or that any such
suit, action or proceeding which is brought in any such court has been brought in an inconvenient
form. Process in any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided in Section 4.02
shall be deemed effective service of process on such party.



     Section 4.07 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.



     Section 4.08 Specific Enforcement. Each party hereto acknowledges that the remedies
at law of the other parties for a breach or threatened breach of this Agreement would be inadequate
and, in recognition of this fact, any party to this Agreement, without posting any bond, and in
addition to all other remedies that may be available, shall be entitled to obtain equitable relief
in the form of specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy that may then be available.



     Section 4.09 Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed by all of the other
parties hereto.



     Section 4.10 Entire Agreement. This Agreement and the Employment Agreement
constitutes the entire agreement among the parties hereto and supersede all prior and
contemporaneous agreements and understandings, both oral and written, among the parties hereto with
respect to the subject matter hereof and thereof.



     Section 4.11 Captions. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.



     Section 4.12 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions,



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covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated.



ARTICLE V




DEFINITIONS




     Section 5.01 Definitions. The following terms, as used herein, have the following
meanings:



     “AAA” means the American Arbitration Association.



     “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person, provided that no
securityholder of the Company shall be deemed an Affiliate of any other securityholder solely by
reason of any investment in the Company. For the purpose of this definition, the term “control”
(including, with correlative meanings, the terms “controlling”, “controlled by” and “under common
control with”), as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or otherwise.



     “Agreement” has the meaning set forth in the preamble.



     “Anniversary Period” means, at any time, the twelve-month period which commenced on
the immediately preceding anniversary of the Closing Date.



     “Board” means the board of directors of the Company.



     “Business Day” means any day except a Saturday, Sunday or other day on which
commercial banks in New York City, New York or San Francisco, California are authorized by law to
close.



     “By-laws” means the By-laws of the Company, as amended from time to time.



     “Change of 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 or that, in each case, requires shareholder approval under the laws of the Company’s
jurisdiction of organization, unless immediately following such transaction, either: (i) at least
50% of the total voting power of the surviving entity or its 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); or (ii) at least 50% of the members of the board of directors (including directors
whose



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election or nomination was approved by the incumbent directors of the Board) of the company
resulting from the transaction were members of the Board at the time of the Board’s approval of the
execution of the initial agreement providing for the transaction or
(B) the filing by any “person” or “group” (in each case within the meaning of Section 13(d)(3)
of the Exchange Act), other than the Company, of a Schedule TO or any other schedule, form or
report under the Exchange Act, disclosing that such person or group has become the direct or
indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of Company Securities
representing more than 50% of the total voting power of the Company.



     “Charitable Organization” has the meaning set forth in Section 1.04(a)(iv) of this
Agreement.



     “Charter” means the Certificate of Incorporation of the Company, as amended from time
to time.



     “Client” has the meaning set forth in Section 3.03(c) of this Agreement.



     “Closing Date” means February 7, 2006.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Common Shares” means shares of Common Stock.



     “Common Stock” means the common stock, par value $0.01 per share, of the Company and
any stock into which such Common Stock may thereafter be converted or changed.



     “Company” has the meaning set forth in the preamble.



     “Company Securities” means, with respect to a Shareholder, (i) the Common Stock, (ii)
securities convertible into or exchangeable for Common Stock, (iii) any other equity or
equity-linked security issued by the Company and (iv) options, warrants or other rights to acquire
Common Stock or any other equity or equity-linked security issued by the Company and, in each case,
beneficially owned by the Shareholder as of the Closing Date.



     “Competitive Enterprise” has the meaning set forth in Section 3.02(b) of this
Agreement.



     “Confidential Information” has the meaning set forth in Section 3.01 of this
Agreement.



     “Coverage Period” has the meaning set forth in Section 3.05(b) of this Agreement.



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     “Damages” has the meaning set forth in Section 2.05 of this Agreement.



     “Date of Termination” has the meaning set forth in Section 3.02(c) of this Agreement.



     “Demand Registration” has the meaning set forth in Section 2.01(a) of this Agreement.



     “Eligible Shareholder” has the meaning set forth in Section 2.01(a)(v) of this
Agreement.



     “Employee” means any person employed by the Firm who receives compensation, other than
a person receiving compensation in the nature of a consulting fee, a pension or a retainer.



     “Employment Agreement” means the employment agreement between a Shareholder and the
Company of even date herewith.



     “Employment Related Matters” has the meaning set forth in Section 3.09 of this
Agreement.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Fair Market Value” means, as of any date, (1) in the case of a Common Share, the
average of the daily closing prices for a Common Share on the principal securities exchange or
market on which the Common Stock is traded for the 20 consecutive Business Days (or, if such
trading has commenced less than 20 Business Days prior to the date in question, the actual number
of Business Days elapsed since the commencement of such trading) before the date in question, and
(2) otherwise, the fair market value thereof as determined in good faith by the Company. Any good
faith determination by the Company of the Fair Market Value under this Agreement will be binding on
the Shareholders.



     “Family Member” has the meaning set forth in Section 1.04 (a)(iv) of this Agreement.



     “Firm” means the Company, together with its Subsidiaries.



     “Indemnified Party” has the meaning set forth in Section 2.07 of this Agreement.



     “Indemnifying Party” has the meaning set forth in Section 2.07 of this Agreement.



     “Initial Ownership” means, with respect to a Shareholder at any time, the fraction,
the numerator of which is the number of Common Shares beneficially owned (as



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such term is defined
in Rule 13d-3 under the Exchange Act) by such Shareholder as of the Closing Date and the
denominator of which is the number of Common Shares beneficially owned by the Shareholder and all
Other Shareholders who are then Eligible Shareholders.



     “Inspectors” has the meaning set forth in Section 2.04(g) of this Agreement.



     “Liquidated Damages” has the meaning set forth in Section 3.08(a) of this Agreement.



     “Lock-Up Period” has the meaning set forth in Section 2.03 of this Agreement.



     “Maximum Offering Size” has the meaning set forth in Section 2.01(e) of this
Agreement.



     “Maximum Share Number” means, with respect to any Anniversary Period, the aggregate
number of Common Shares that the Shareholder and the Other Shareholders shall be permitted to
Transfer in a registered offering. The Maximum Share Number shall be (A) for the Anniversary
Period ending on the first anniversary of the Closing Date, 2,473,051 and (B) for each Anniversary
Period thereafter until the fifth anniversary of the Closing Date, that number of Common Shares as
the Underwritten Offering Committee shall decide in its sole discretion.



     “NASD” means the National Association of Securities Dealers, Inc.



     “Other Shareholder” means any other shareholder of the Company who is party to this
Agreement.



     “Permitted Transferee” means a Person to whom Company Securities are Transferred (A)
pursuant to Section 1.04(b)(iii) or (B) by will or the laws of descent and distribution.



     “Person” means an individual, corporation, limited liability company, partnership,
association, trust or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.



     “Piggyback Registration” has the meaning set forth in Section 2.02(a) of this
Agreement.



     “Pledge Agreement” means the pledge agreement entered into between the Shareholder and
the Company of even date herewith.



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     “Pro Rata Portion” means, with respect to a Shareholder, that portion of the Maximum
Share Number calculated by multiplying the Maximum Share Number by such Shareholder’s Initial
Ownership.



     “Public Offering” means an underwritten public offering of Registrable Securities of
the Company pursuant to an effective registration statement under the
Securities Act, other than pursuant to a registration statement on Form S-4 or Form S-8 or any
similar or successor form.



     “Public Offering Limitations” has the meaning set forth in Section 2.01(a)(iv) of this
Agreement.



     “Records” has the meaning set forth in Section 2.04(g) of this Agreement.



     “Registering Shareholders” has the meaning set forth in Section 3.01(a) of this
Agreement.



     “Registrable Securities” means, with respect to a Shareholder, any Common Shares and
any securities issued or issuable in respect of such Shares by way of conversion, exchange, stock
dividend, split or combination, recapitalization, merger, consolidation, other reorganization or
otherwise; provided, however, that such Registrable Securities shall cease to be Registrable
Securities at any time when (i) a registration statement covering such Shares has been declared
effective by the SEC and such Shares have been disposed of pursuant to such effective registration
statement, (ii) such Shares are sold under circumstances in which all of the applicable conditions
of Rule 144 are met or such securities may be sold pursuant to Rule 144(k) or (iii) such Shares are
otherwise Transferred, the Company has delivered a new certificate or other evidence of ownership
for such Shares not bearing the legend required pursuant to this Agreement and such Shares may be
resold without subsequent registration under the Securities Act.



     “Registration Expenses” means any and all expenses incident to the performance of or
compliance with any registration or marketing of securities, including all (i) registration and
filing fees, and all other fees and expenses payable in connection with the listing of securities
on any securities exchange or automated interdealer quotation system, (ii) fees and expenses of
compliance with any securities or “blue sky” laws (including reasonable fees and disbursements of
counsel in connection with “blue sky” qualifications of the securities registered), (iii) expenses
in connection with the preparation, printing, mailing and delivery of any registration statements,
prospectuses and other documents in connection therewith and any amendments or supplements thereto,
(iv) security engraving and printing expenses, (v) internal expenses of the Company (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties), (vi) reasonable fees and disbursements of counsel for the Company and customary
fees and expenses for independent certified public



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accountants retained by the Company (including
the expenses relating to any comfort letters or costs associated with the delivery by independent
certified public accountants of any comfort letters requested pursuant to Section 2.04(h)), (vii)
reasonable fees and expenses of any special experts retained by the Company in connection with such
registration, (viii) reasonable fees, out-of-pocket costs and expenses of the Shareholders,
including one counsel for all of the Shareholders participating in the offering selected by the
Shareholders holding the majority of the Registrable Securities to
be sold for the account of all Shareholders in the offering, (ix) fees and expenses in
connection with any review by the NASD of the underwriting arrangements or other terms of the
offering, and all fees and expenses of any “qualified independent underwriter,” including the fees
and expenses of any counsel thereto, (x) fees and disbursements of underwriters customarily paid by
issuers or sellers of securities, but excluding any underwriting fees, discounts and commissions
attributable to the sale of Registrable Securities, (xi) costs of printing and producing any
agreements among underwriters, underwriting agreements, any “blue sky” or legal investment
memoranda and any selling agreements and other documents in connection with the offering, sale or
delivery of the Registrable Securities, (xii) transfer agents’ and registrars’ fees and expenses
and the fees and expenses of any other agent or trustee appointed in connection with such offering,
(xiii) expenses relating to any analyst or investor presentations or any “road shows” undertaken in
connection with the registration, marketing or selling of the Registrable Securities, (xiv) fees
and expenses payable in connection with any ratings of the Registrable Securities, including
expenses relating to any presentations to rating agencies and (xv) all out-of pocket costs and
expenses incurred by the Company or its appropriate officers in connection with their compliance
with Section 2.04(l).



     “Reorganization” has the meaning set forth in the recitals.



     “Reorganization Agreement” has the meaning set forth in the recitals.



     “Requesting Shareholder” has the meaning set forth in Section 2.01(a) of this
Agreement.



     “Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having
substantially the same effect as such rule.



     “SEC” means the United States Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Shareholder” has the meaning set forth in the preamble.



     “Shareholder Covenants” means the provisions contained in Sections 3.01 through 3.06
of this Agreement.



     “Shares” means Common Shares.



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     “Shortfall” means, in respect of any registration, the difference between the Maximum
Share Number and the number of Common Shares requested to be included in that registration by each
Shareholder who is an Eligible Shareholder.



     “Solicit” has the meaning set forth in Section 3.03(b) of this Agreement.



     “Subsidiary” means, with respect to any Person, 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 at the time directly or indirectly
owned by such Person.



     “Transfer” means, with respect to any Company Securities, (i) when used as a verb, to
sell, assign, dispose of, exchange, pledge, encumber, hypothecate or otherwise transfer such
Company Securities or any participation or interest therein, whether directly or indirectly, or
agree or commit to do any of the foregoing and (ii) when used as a noun, a direct or indirect sale,
assignment, disposition, exchange, pledge, encumbrance, hypothecation, or other transfer of such
Company Securities or any participation or interest therein or any agreement or commitment to do
any of the foregoing, in each case of (i) and (ii), other than a pledge by the Shareholder of his
or her Company Securities as collateral pursuant to the Pledge Agreement.



     “TWPG LLC” has the meaning set forth in the recitals.



     “Underwritten Offering Committee” means the committee designated by the Board and to
which committee the Board has delegated the power to (i) open a Window Period and (ii) approve
Transfers in accordance with Section 1.04.



     “Window Period” means such period of time, from time to time, commencing on the 180th
day following the Closing Date and ending on the fifth anniversary of the Closing Date, as the
Underwritten Offering Committee shall in its sole discretion determine, when a Shareholder will be
permitted to request Demand Registrations, subject to the provisions of Article II.



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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered as of the date and year first above written.



	 	 	 	 	 
	 	THOMAS WEISEL PARTNERS GROUP, INC.

 	 
	 	By:  	/s/ Mark Fisher
 	 
	 	 	Name:  	Mark Fisher 	 
	 	 	Title:  	General Counsel and Secretary 	 
	 



	 	 	 
	 

	[NAMES OF PARTNERS]
	 
	 	 
	 

	 	                                                            







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EXHIBIT A




JOINDER AGREEMENT TO PARTNERS’ EQUITY AGREEMENT




     This Joinder Agreement (this “Joinder Agreement”) is made as of the date written below
by the undersigned (the “Joining Party”) in accordance with the Partners’ Equity Agreement, dated
as of February ___, 2006 (the “Partners’ Equity Agreement”) by and between Thomas Weisel
Partners Group, Inc. and the individuals listed on the signature page thereto, as the same may be
amended from time to time. Capitalized terms used but not defined herein shall have the meaning
ascribed to such terms in the Partners’ Equity Agreement.



     The Joining Party hereby acknowledges, agrees and confirms that, by its, his or her execution
of this Joinder Agreement, the Joining Party shall be deemed to be a party to the Partners’ Equity
Agreement as of the date hereof and shall have all of the rights and obligations of a “Shareholder”
thereunder as if it, he or she had executed the Partners’ Equity Agreement. The Joining Party
hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the Partners’ Equity Agreement.



     IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date and
year written below.



	 	 	 	 	 
	Date:  ____________, 20__ 	[NAME OF JOINING PARTY]

 	 
	 	By:  	

 	 
	 	 	Name:  	 	 
	 	 	Title:  	



 	 

	 	
Address for Notices: