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EXHIBIT 10.1
EXECUTION COPY
SUPPORT AGREEMENT
SUPPORT AGREEMENT (this "Agreement"), dated as of August 23, 2000,
between The MONY Group Inc., a Delaware corporation ("Parent"), and the
undersigned shareholders (the "Shareholders," each a "Shareholder") of The
Advest Group, Inc., a Delaware corporation (the "Company").
WHEREAS, as of the date hereof, each of the Shareholders own
(either beneficially or of record) that number of shares of common stock, par
value $.01 per share, of the Company, including all associated preferred share
purchase rights ("Company Common Stock"), as set forth opposite such
Shareholder's name on Schedule A attached hereto (all such shares and any shares
of Common Stock hereafter acquired by the Shareholders prior to the termination
of this Agreement being referred to herein as the "Shares");
WHEREAS, concurrently herewith, Parent, MONY Acquisition Corp., a
Delaware corporation ("Merger Sub") and the Company are entering into an
Agreement and Plan of Merger (as such Agreement may hereafter be amended from
time to time, the "Merger Agreement"), pursuant to which, upon the terms and
subject to the conditions thereof, the Company shall be merged with and into
Merger Sub, and the separate corporate existence of the Company shall thereupon
cease (the "Merger"). Merger Sub shall be the Surviving Corporation (as defined
in the Merger Agreement) in the Merger, and will be a wholly owned subsidiary of
Parent; and
WHEREAS, as a condition to the willingness of Parent to enter into
the Merger Agreement, Parent has requested that the Shareholders agree, and, in
order to induce Parent to enter into the Merger Agreement, the Shareholders have
agreed, to the terms and provisions hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
1.1 VOTING OF SHARES. Until the termination of this Agreement
in accordance with Section 4.12 hereof, each Shareholder hereby agrees as
follows:
(a) The Shareholder shall, including by initiating a
written consent solicitation if requested by Parent, vote (or cause to be voted)
the Shares in favor of the Merger, the approval and adoption of the Merger
Agreement and the approval of the other transactions contemplated by the Merger
Agreement and the Option Agreement (as defined in the Merger Agreement), at any
meeting of shareholders of the Company called to vote upon such matters or at
any adjournment thereof or in any other circumstances upon which a vote, consent
or other approval (including by written consent) with respect to such matters is
sought (the "Special Meeting").
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(b) The Shareholder shall not take any action to revoke
or terminate, or permit to be revoked or terminated, any trust for which the
Shareholder serves as trustee, or take any other action which would restrict,
limit or frustrate the Shareholder's right to vote the Shares, including on
behalf of such trust, in accordance with this Agreement.
1.2 GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY. (a)
The Shareholder hereby irrevocably grants to, and appoints, Parent and Michael
I. Roth, Richard Daddario and Kenneth M. Levine, in their respective capacities
as officers of Parent, and any individual who shall hereafter succeed to any
such office of Parent, and each of them individually, the Shareholder's proxy
and attorney-in-fact (with full power of substitution), for and in the name,
place and stead of the Shareholder, to vote the Shares, or grant a consent or
approval in respect of the Shares, in favor of adoption of the Merger Agreement.
(b) The Shareholder represents that any proxies
heretofore given in respect of the Shares are not irrevocable, and that all such
proxies are hereby revoked. The Shareholder hereby affirms that the irrevocable
proxy set forth in this Section 1.2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law.
1.3 RESTRICTIONS ON TRANSFER AND CONVERSION. (a) Until the
close of business on the date of the Special Meeting, the Shareholder will not
(i) sell, assign, transfer, pledge or otherwise dispose of or transfer any of
its Shares, (ii) deposit its Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares or grant any proxy with
respect thereto, or (iii) enter into any contract, option or other arrangement
or undertaking with respect to the direct or indirect acquisition or sale,
assignment, transfer or other disposition of any Shares; provided, however, that
the Shareholder may make bona fide gifts of Shares, and may make transfers of
Shares into one or more trusts for estate or tax planning purposes, so long as
the recipient of such gift, or such trust, as applicable, enters into an
agreement with Parent substantially identical to this Agreement.
(b) If, at the time the Merger Agreement is submitted
for approval to the shareholders of the Company, the Shareholder is an
"affiliate" of the Company for purposes of Rule 145 under the Securities Act of
1933, as amended, the Shareholder shall deliver to Parent on or prior to the
Closing Date (as defined in the Merger Agreement) a written agreement
substantially in the form attached as Exhibit A to the Merger Agreement.
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(c) The Shareholder agrees to tender to Merger Sub,
within 10 business days after the date hereof (or, in the event the Shares are
acquired subsequent to the date hereof within 10 business days after the date of
such acquisition), any and all certificates representing the Shares in order
that Merger Sub may inscribe upon such certificates a legend in accordance with
subsection (d) below, provided, however, that no such legend shall be required
to be inscribed if (i) the Shareholder holds all of the Shares in one brokerage
account at one brokerage firm (the "Firm") and (ii) the Shareholder and the Firm
acknowledge and agree in writing with the Parent that (A) the foregoing clause
(i) accurately reflects the holding of all of the Shares and (B) the Shares will
not be transferred, and the Shareholder and the Firm will take all actions to
ensure that the Shares will not be transferred, in violation of this Agreement.
(d) The Company will inscribe upon any Certificate (as
defined in the Merger Agreement) representing the Shares tendered by a
Shareholder for such purpose the following legend: THE SHARES OF COMMON STOCK,
PAR VALUE $0.01 PER SHARE, OF THE COMPANY REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A SUPPORT AGREEMENT DATED AS OF AUGUST 23, 2000, AND ARE SUBJECT TO
THE TERMS THEREOF. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE COMPANY.
ARTICLE II
Each Shareholder represents and warrants to Parent as follows:
2.1 AUTHORITY. The Shareholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Shareholder and constitutes a valid and binding obligation of
the Shareholder enforceable against the Shareholder in accordance with its
terms. If the Shareholder is a natural person and is married, and the Shares
constitute community property or otherwise require spousal or other approval for
this Agreement to be legal, valid and binding, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Shareholder's spouse, enforceable against such spouse in
accordance with its terms. No trust of which the Shareholder is a trustee
requires the consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated hereby.
2.2 THE SHARES. The Shareholder is the record and beneficial
owner of or is trustee of a trust that is the record holder of, and whose
beneficiaries are the beneficial owners of, and has good and marketable title
to, the Shares, free and clear of any liens, claims, encumbrances or security
interests whatsoever. The Shareholder does not own, of record or beneficially,
any shares of capital stock of the Company other than as set forth on Schedule A
hereto. The Shareholder has the sole right to vote the Shares, and none of such
Shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such Shares, except as contemplated by
this Agreement.
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2.3 NO VIOLATION. Neither the execution and delivery by the
Shareholder of this Agreement nor the consummation by the Shareholder of the
transactions contemplated hereby in accordance with the terms hereof, will: (i)
conflict with, or result in a breach of any provision of the Certificate of
Incorporation or Bylaws (or other comparable organizational documents, if any)
of the Shareholder, if applicable; (ii) violate, conflict with, result in a
breach of any provision of, constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under, any trust
agreement, loan or credit agreement, bond, note, mortgage, indenture, lease or
other contract, agreement, obligation, commitment, arrangement, understanding,
instrument, permit, concession, franchise, license, statute, law, ordinance,
rule, regulation, judgment, order, notice or decree, applicable to the
Shareholder or to the Shareholder's property or assets, including the Shares;
(iii) other than the expiration or termination of the waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and
informational filings with the Securities and Exchange Commission, require any
filing with, or permit, authorization, consent or approval of, any Federal,
state or local government or any court, tribunal, administrative agency or
commission or other governmental and regulatory authority or agency, domestic or
foreign, or (iv) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Shareholder or any of the Shareholder's properties
or assets, including the Shares.
ARTICLE III
3.1 NO SOLICITATION. Prior to the Effective Time (as defined in
the Merger Agreement), (a) no Shareholder in its capacity as a shareholder of
the Company shall, or shall permit any agents and representatives (including,
without limitation, any investment banker, attorney or accountant retained by
it) to, initiate, solicit or encourage, directly or indirectly, any inquiries or
the making or implementation of any proposal or offer (including, without
limitation, any proposal or offer to the Company's shareholders) with respect to
an Alternative Proposal (as defined in the Merger Agreement) or with respect to
any tender offer for or solicitation of proxies with respect to any shares of
Company Common Stock, or engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions with, any person
relating to an Alternative Proposal or relating to any tender offer for or
solicitation of proxies with respect to any shares of Company Common Stock, or
otherwise facilitate any effort or attempt to make or implement an Alternative
Proposal or any tender offer for or solicitation of proxies with respect to any
shares of Company Common Stock and (b) each Shareholder will notify Parent
immediately in writing if any such inquiries or proposals are received by, any
such information is requested from, or any such negotiations or discussions are
sought to be initiated or continued with, that Shareholder in that Shareholder's
capacity as a shareholder of the Company.
ARTICLE IV
4.1 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered, mailed or transmitted, and shall be effective
upon receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return
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receipt requested) to the parties at the following addresses (or at such other
address for a party as shall be specified by like changes of address) or sent by
electronic transmission to the telecopier number specified below:
If to Parent:
The MONY Group Inc.
1740 Broadway
New York, New York 10017
Attention: General Counsel
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
Attention: Jonathan L. Freedman, Esq.
If to the Shareholders, to the address indicated on Schedule A
attached hereto for each respective Shareholder.
with copies to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019-6150
Attention: Craig M. Wasserman, Esq.
Telecopy: (212) 403-2232
and:
Day, Berry & Howard LLP
Cityplace I
Hartford, Connecticut 06103-3499
Attention: William H. Cuddy, Esq.
Telecopy: (860) 275-0343
4.2 CERTAIN EVENTS. Each Shareholder agrees that this Agreement
and the obligations hereunder shall attach to the Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such Shares
shall pass, whether by operation of law or otherwise, including such
Shareholder's heirs, guardians, administrators or successors. In the event of
any stock split, stock dividend, merger, reorganization, recapitalization or
other change in the capital structure of the Company affecting the Company
Common Stock, or the acquisition of additional shares of Company Common Stock or
other voting securities of the Company by any Shareholder, the number of Shares
listed herein shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of Company Common
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Stock or other voting securities of the Company issued to or acquired by such
Shareholder.
4.3 ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that Parent may assign its rights
hereunder to any of its direct or indirect wholly-owned subsidiaries, including
Merger Sub. Subject to the preceding sentence, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
4.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
4.5 AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
4.6 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to principles of conflicts of laws.
4.7 ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity. In addition, each of the parties hereto waives
to the fullest extent permitted by applicable law any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby. If Parent should
institute an action or proceeding seeking specific enforcement of the provisions
hereof, then each Shareholder hereby waives the claim or defense that Parent has
an adequate remedy at law and hereby agrees not to assert in any such action or
proceeding the claim or defense that such a remedy at law exists. Each
Shareholder further agrees to waive any requirements for the securing or posting
of any bond in connection with obtaining any such equitable relief.
4.8 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such
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determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
4.9 PUBLIC ANNOUNCEMENTS. Except as required by law, no
Shareholder shall issue any press release or other public statement with respect
to the transactions contemplated by this Agreement and the Merger Agreement
without the prior written consent of Parent.
4.10 HEADINGS. The headings contained in this Agreement are for
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
4.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which, taken
together, shall constitute one and the same agreement.
4.12 TERMINATION. This Agreement shall terminate automatically
immediately following the earlier of (i) termination of the Merger Agreement and
(ii) the closing of the Merger.
4.13 SHAREHOLDER CAPACITY. As of the date of this Agreement,
certain of the Shareholders are officers or directors of the Company. None of
the Shareholders makes any agreement or understanding herein in his or her
capacity as a director or officer of the Company. Each Shareholder signs solely
in his or her capacity as the record holder and beneficial owner of, or the
trustee of a trust whose beneficiaries are the beneficial owners of, such
Shareholder's securities and nothing herein shall limit or affect any actions
taken by a Shareholder in his or her capacity as an officer or director of the
Company to the extent specifically permitted by the Merger Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
THE MONY GROUP, INC.
By:
--------------------------------
Name:
Title:
PETER R. KELLOGG
By:
--------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
THE MONY GROUP, INC.
By:
--------------------------------
Name:
Title:
GRANT W. KURTZ
By:
--------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
THE MONY GROUP, INC.
By:
--------------------------------
Name:
Title:
ALLEN WEINTRAUB
By:
--------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
THE MONY GROUP, INC.
By:
--------------------------------
Name:
Title:
GEORGE A. BOUJOUKOS
By:
--------------------------------
Name:
Title:
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SCHEDULE A
<TABLE>
<CAPTION>
SHAREHOLDER SHARES OWNED
----------- ------------
<S> <C>
Peter R. Kellogg 1,564,612
c/o Spear, Leeds & Kellogg
120 Broadway
New York, NY 10271
Allen Weintraub 182,382
Grant W. Kurtz 151,316
74 Ferncliff Drive
West Hartford, CT 06107
George A. Boujoukos 84,678
90 State House Square
Hartford, CT 06103
</TABLE>
