As filed with the Securities and Exchange Commission on November 1, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
The Advest Group, Inc.
(Exact name of registrant as specified in its charter)
Delaware 06-095044
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
One Commercial Plaza-280 Trumbull Street, Hartford, Connecticut 06103
(Address of Principal Executive Offices)
The Advest Group, Inc. 1995 Equity Plan
(Full title of the plan)
Lee G. Kuckro, Esq.
Secretary and General Counsel
The Advest Group, Inc.
One Commercial Plaza-280 Trumbull Street
Hartford, Connecticut 06103
(Name and address of agent for service)
(203) 525-1421
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (*) price (*) fee
Common Stock, 800,000 shs. $5.25 $4,200,000 $1,448.28
$.01 par value
*Estimated pursuant to Rule 457(c) and Rule 457(h) solely for the purpose of
calculating the registration fee, and based on the average of the high and low
prices of a share of Common Stock as reported in the consolidated reporting
system on October 26, 1994.
Total of sequentially numbered pages 24.
Exhibit index sequential page number page 7.
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to (i) 400,000 shares of Common Stock,
$.01 par value ("Common Stock"), which may be purchased by participants under
The Advest Group, Inc. 1995 Equity Plan (the "Plan") and (ii) 400,000 shares of
Common Stock which may be purchased by participants upon the exercise of
options issuable under the Plan.
Item 3. Incorporation of Documents by Reference.
The following documents filed by The Advest Group, Inc. (the "Company") with
the Securities and Exchange Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1993, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "1934 Act");
(b) The Company's quarterly reports on Form 10-Q for the quarters ended
December 31, 1993, March 31, 1994 and June 30, 1994;
(c) All other reports filed pursuant to Section 13(a) or 15(d) of the 1934
Act since the end of the fiscal year covered by the document referred to in
(a) above; and
(d) The description of the Company's Common Stock which is contained in its
registration statement on Form 8-A dated October 20, 1982, filed under the
1934 Act, and any amendment or report filed under the 1934 Act for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL"), directors and officers as well as other employees and individuals
may be indemnified against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement in connection with specified actions,
suits or proceedings, whether civil, criminal, administrative or investigative
(other than an action by or in the right of a corporation--a "derivative
action") if they acted in good faith and in a manner they reasonably believed
to be in or
<PAGE> -2-
not opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard of care is applicable in the case of
derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense of settlement
of such an action and the DGCL requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. Additionally, a corporation is required to indemnify its
directors and officers against expenses to the extent that such directors or
officers have been successful on the merits or otherwise in any action, suit or
proceeding or in defense of any claim, issue or matter therein.
Unless ordered by a court, an indemnification can be made by a corporation
only upon a determination that indemnification is proper in the circumstances
because the party seeking indemnification has met the applicable standard of
conduct as set forth in Delaware law. The indemnification provided by Section
145 of the DGCL includes the right to be paid by the corporation the expenses
incurred in defending proceedings in advance of their final disposition. Such
advance payment of expenses, however, may be made only upon delivery to the
corporation by the indemnified party of an undertaking to repay all amounts so
advanced if it shall ultimately be determined that the person receiving such
payments is not entitled to be indemnified.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred by Section
145 of the DGCL is not exclusive of any other right which any person may have
or acquire under any statute, provision of the certificate of incorporation or
bylaws, or otherwise. In addition, Section 145 of the DGCL authorizes a
corporation to maintain insurance, at its expense, to protect itself and any of
its directors, officers, employees or agents against any expense, liability or
loss, whether or not the corporation would have the power to indemnify such
person against such expense, liability or loss under the DGCL.
The Company's Certificate of Incorporation permits indemnification of
directors and officers to the full extent permitted by the DGCL. In addition,
the Company currently maintains an insurance policy insuring its officers and
directors against certain liabilities incident to their position with the
Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith:
Exhibit No. Description
4 The Advest Group, Inc. 1995 Equity Plan
5 Opinion of Day, Berry & Howard
15 Letter re unaudited interim financial information
23.1 Consent of Coopers & Lybrand
23.2 Consent of Arthur Andersen & Co.
23.3 Consent of Day, Berry & Howard (included in Exhibit 5)
24 Power of attorney (See Signature pages.)
<PAGE> -3-
Item 9. Undertakings.
A. Undertaking to Update Annually
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraph (A)(1)(i) and (A)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
B. Undertaking With Respect to Incorporating Subsequent Exchange Act
Documents By Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
<PAGE> -4-
C. Undertaking With Respect to Indemnification of Directors, Officers or
Controlling Persons
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE> -5-
Signatures
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hartford, State of Connecticut on October 27, 1994.
The Advest Group, Inc.
By Allen Weintraub
Name: (Allen Weintraub)
Title: Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby constitutes Allen Weintraub and Lee G. Kuckro and each of them
singly, such person's true and lawful attorneys, with full power to them and
each of them to sign for such person and in such person's name and capacity
indicated below, any and all amendments to this Registration Statement, hereby
ratifying and confirming such person's signature as it may be signed by said
attorneys to any and all amendments.
Signature Title Date
Allen Weintraub Chief Executive Officer, October 27, 1994
(Allen Weintraub) Chairman of the Board and
Director (Principal
Executive Officer)
Martin M. Lilienthal Senior Vice President and October 27, 1994
(Martin M. Lilienthal) Treasurer (Chief Financial
and Principal Accounting
Officer)
George A. Boujoukos Director October 27, 1994
(George A. Boujoukos)
<PAGE> -6-
Anthony E. Cascino Director October 27, 1994
(Anthony E. Cascino)
Richard G. Dooley Director October 27, 1994
(Richard G. Dooley)
Grant Kurtz Director October 27, 1994
(Grant Kurtz)
Anthony A. LaCroix Director October 27, 1994
(Anthony A. LaCroix)
Charles T. Larus Director October 27, 1994
(Charles T. Larus)
Corine T. Norgaard Director October 27, 1994
(Corine T. Norgaard)
John A. Powers Director October 27, 1994
(John A. Powers)
Robert L. Thomas Director October 27, 1994
(Robert L. Thomas)
<PAGE> -7-
EXHIBIT INDEX
Exhibit No. Description Page(s)
4 The Advest Group, Inc. 1995 Equity Plan 8
5 Opinion of Day, Berry & Howard 21
15 Letter re unaudited interim financial information 22
23.1 Consent of Coopers & Lybrand 23
23.2 Consent of Arthur Andersen & Co. 24
23.3 Consent of Day, Berry & Howard 21
(included in Exhibit 5)
24 Power of attorney (See Signature pages.) 5-6
<PAGE> -8-
Exhibit 4
THE ADVEST GROUP, INC.
1995 EQUITY PLAN
The Advest Group, Inc. hereby establishes the 1995 Equity Plan, for a
select group of top performing account executives and key employees. The
purpose of the Plan is to further the long term growth in earnings of the
Company by offering incentives to select Employees to compensate them for their
contributions to the Company's growth and profits, to encourage their ownership
of the Company's stock, and to encourage them to remain in the employ of the
Company.
ARTICLE I
DEFINITIONS
When used herein, each of the following terms shall have the
corresponding meaning set forth below unless a different meaning is plainly
required by the context in which a term is used.
Section 1.1. "Affiliate" means the Company's present or future parent
corporation, each of the present or future subsidiaries of the Company, and any
subsidiaries of the present or future parent of the Company in which the parent
holds a controlling interest.
Section 1.2. "Beneficiary" means any person (including, but not limited
to, a Participant's estate) designated by a Participant on a form provided or
approved by the Committee to receive any Stock or Options to which such
Participant shall be entitled upon such Participant's death in accordance with
the terms of the Plan. No designation of Beneficiary shall be effective until
filed with the Committee. If more than one Beneficiary shall be designated,
the Beneficiaries shall share equally in any rights or interests of the
Participant under the Plan. If a Participant shall fail to file a valid
designation form, or if all persons designated on the designation form shall
have predeceased the Participant, the Company shall distribute all of the
Participant's Stock and Options to which he shall have been entitled upon his
death to such Participant's estate.
Section 1.3. "Board of Directors" means the Board of Directors of
the Company or the Executive Committee of such Board.
Section 1.4. "Cause" shall be deemed to include any act of
dishonesty or fraud, gross negligence, gross insubordination or willful or
reckless conduct detrimental to the business of the Company or an Affiliate.
Section 1.5. "Change of Control" means a transfer or sale of
substantially all of the assets of the Company or merger or consolidation of
the Company into or with any other corporation or entity that occurs after the
Effective Date, provided either (a) the other
<PAGE> -9-
corporation or entity is engaged in the retail securities brokerage business at
the date of the transaction and such transaction results in the Company not
surviving such merger or consolidation or (b) a substantial change in the
senior management of the Company occurs within six months as a result of the
transaction.
Section 1.6. "Code" means the Internal Revenue Code of 1986, as amended.
Section 1.7. "Committee" means an administrative committee designated to
administer this Plan in accordance with Article X.
Section 1.8. "Company" means The Advest Group, Inc. and any successor
thereto by merger, consolidation, purchase or otherwise.
Section 1.9. "Compensation" means the amount of earnings due to the
Participant for the Deferral Period as defined by the Company. Compensation
shall include amounts contributed to a Participant's account established under
the Company's or an Affiliate's 401(k) plan or The Advest Group, Inc.'s
Deferred Compensation Savings and Investment Plan, or any successor plan(s).
Section 1.10. "Deferral Period" means the period beginning on January 1,
1995 and ending on the earliest of: (a) the termination of a Participant's
employment with the Company or an Affiliate, (b) the termination of the Plan in
accordance with Article IX, or (c) December 31, 1995.
Section 1.11. "Deferred Amount" or "Amount Deferred" means that
portion of a Participant's Compensation a Participant has elected to receive in
the form of Units in accordance with Section 3.1.
Section 1.12. "Effective Date" means December 1, 1994.
Section 1.13. "Employee" means any person who is a common-law employee
of the Company or an Affiliate.
Section 1.14. "Options" means non-qualified stock options to purchase
shares of Stock that are not incentive stock options under Section 422 of the
Code and that are received as a part of a Unit by Participants with Deferred
Amounts.
Section 1.15. "Participant" means an Employee participating in the Plan
as provided in Article II.
Section 1.16. "Permanent Disability" means a mental or physical
condition which renders a Participant permanently unable or incompetent to
engage in any substantial gainful activity.
Section 1.17. "Plan" means "The Advest Group, Inc. 1995 Equity Plan".
<PAGE> -10-
Section 1.18. "Restricted Stock" means shares of Stock subject to the
restrictions set forth in Article IV that are received as part of a Unit by
Participants with Deferred Amounts.
Section 1.19. "Retirement" means the date a Participant retires after
attaining the age of fifty-five.
Section 1.20. "Stock" means the common stock of the Company.
Section 1.21. "Unit" means a grouping consisting of one share of
Restricted Stock and one Option.
Section 1.22. "Unit Price" means the amount of Compensation a
Participant must elect to forego receiving in cash in order to receive a Unit
under the Plan. Such price shall be the closing price per share of the Stock
portion of the Unit on the Composite Tape of the New York Stock Exchange on the
day the Unit is acquired.
ARTICLE II
ELIGIBILITY
Section 2.1. Participants. An Employee eligible to become a Participant
in this Plan for the Deferral Period is any Employee who:
(a) is an account executive, other than an account executive in the
first 36 months of a recruitment loan program, who is a member of
the Chairman's Council, the Advisory Council, the President's
Council, or the Associates' Council by the standards the Company
has set based upon levels of achievement with respect to the last
complete fiscal year commencing prior to such Deferral Period; or
(b) is a key employee designated by the Chief Executive Officer of the
Company on a list provided by the Chief Executive Officer to the
Committee on or before December 1, 1994 as eligible to participate
in the Plan ("Key Employees").
Notwithstanding the foregoing, Employees who are executive officers shall
not be eligible to participate in the Plan.
Section 2.2. Duration of Participation. A Participant shall cease to be
a Participant on the earliest of: (a) the date all restrictions with respect to
Stock purchased hereunder lapse and all Options purchased hereunder have
terminated, (b) the date such Stock and Options are forfeited in accordance
with Section 4.3 or Section 5.5, or (c) the date the Plan is terminated in
accordance with Article IX.
Section 2.3. Reemployment. Reemployment of a former Participant by the
Company or an Affiliate shall not entitle such individual to become a
Participant in the Plan unless the individual again becomes a Participant in
accordance with Section 2.1, and reemployment of a
<PAGE> -11-
former Participant by the Company or an Affiliate shall not result in the
restoration of any Stock or Options previously forfeited by such Participant.
ARTICLE III
DEFERRAL
Section 3.1. Amount Deferred. During the Deferral Period:
(a) A Participants who is a member of the Chairman's Council may elect
to receive a minimum of 2.5% and a maximum of 10% of his or her
Compensation in the form of Units.
(b) A Participant who is (i) a member of the Advisory Council, (ii) a
member of the President's Council, or (iii) a Key Employee who had
total compensation during 1994 of $125,000 or more, may elect to
receive a minimum of 2.5% and a maximum of 7.5% of his or her
Compensation in the form of Units.
(c) A Participant who is (i) a member of the Associates' Council, or
(ii) a Key Employee who had total compensation during 1994 of less
than $125,000, may elect to receive a minimum of 1.5% and a maximum
of 5% of his or her Compensation in the form of Units.
(d) In addition to the percentage elections set forth above in clause
(b) or (c) above, whichever may be applicable, a salaried Key
Employee who elects at least the minimum level of investment may
also elect to receive a greater percentage, up to a maximum
aggregate of 100%, of his or Compensation above base salary in the
form of Units, provided that at no time may the amount of
Compensation received in the form of Units exceed the maximum
permitted percentages of Compensation specified in clause (b) or
(c) above, whichever may be applicable.
Notwithstanding the foregoing, no Participant may elect to receive during
the Deferral Period Units with an aggregate Unit Price in excess of $50,000,
and no further Units shall be acquired for Participants under the Plan if such
acquisition would cause the aggregate Unit Price of all Units received by
Participants for the Deferral Period under the Plan to exceed $2 million or the
number of Units sold to exceed 400,000. If, based upon Participant elections,
the Committee anticipates at the commencement of 1995 that these aggregate
limits are likely to be exceeded, the Committee may reduce the maximum
percentage investments in a manner it determines to be equitable to all
participants. Participants will be notified of any reduction applicable to
them by January 31, 1995.
Section 3.2. Receipt of Units. Amounts Deferred hereunder shall be
withheld from a Participant's paycheck in equal installments. On the last
business day of each month, the total of a Participant's Deferred Amounts under
Section 3.1 shall be applied to acquire Units for
<PAGE> -12-
such Participant at the then Unit Price. Fractional units may be acquired by a
Participant; provided, that the Committee may establish procedures to eliminate
any fractional holdings of Units held on behalf of Participants as of December
31, 1995 in a manner equitable to all Participants.
Section 3.3. Stock Subject to Purchase. Shares of Stock subject to
purchase hereunder shall be previously issued shares reacquired by the Company
(including any shares forfeited under this Plan).
ARTICLE IV
RESTRICTED STOCK
Section 4.1. Stock. All shares of Restricted Stock shall be held in
the name of The Advest Group, Inc. as escrow agent for Participants.
Section 4.2. Restrictions. The shares of Restricted Stock purchased
hereunder shall be subject to the following restrictions and conditions:
(a) Subject to the provisions of the Plan and the Restricted
Stock Agreements, during the period commencing on the date of the
acquisition of any shares of Restricted Stock hereunder and terminating
after December 31, 1998 (together with any extensions of such period
approved as provided herein) (the "Restriction Period"), a Participant
shall not be permitted to sell, transfer, pledge or assign shares of
Restricted Stock acquired under the Plan. One year extensions of the
Restriction Period for Restricted Stock purchased hereunder will be made
at a Participant's election, which election must be in writing on a form
provided by the Committee and must be made no later than one year before
the Restriction Period would otherwise terminate; provided, however, that
the Committee may at any time determine that no additional extensions of
Restricted Periods will be effective.
(b) A Participant shall have the right to direct the vote of such
Participant's shares of Restricted Stock during the Restriction Period,
in accordance with Section 4.4. A Participant shall have the right to
receive any regular dividends on such shares of Restricted Stock. The
Committee shall in its sole discretion determine a Participant's rights
with respect to extraordinary dividends on the shares of Restricted
Stock.
(c) Shares of Restricted Stock shall be transferred to a
Participant's brokerage account with Advest, Inc. within a reasonable
time after, and only after, the Restriction Period shall expire (or such
earlier time as the restrictions may lapse in accordance with Section
4.2(a) or Section 4.3) without forfeiture in respect of such shares of
Restricted Stock.
<PAGE> -13-
Section 4.3. Termination of Employment. Subject to the provisions of
Section 4.2(a), the following provisions shall apply to a Participant's shares
of Restricted Stock prior to the end of the Restriction Period (including
extensions):
(a) Upon a Participant's death, Permanent Disability, Retirement
with the written consent of the President or the Chief Executive Officer
of the Company or the Affiliate by which the Participant is employed,
voluntary termination of employment more than nine months after a Change
of Control, or involuntary termination of employment (other than a
termination for Cause), the restrictions on such Participant's Restricted
Stock shall immediately lapse, and such shares shall be delivered to the
Participant or the Participant's designated Beneficiary, as the case may
be, within a reasonable time after the occurrence of any such event.
(b) Upon a Participant's Retirement without the written consent
of the President or the Chief Executive Officer of the Company or the
Affiliate by which the Participant is employed or voluntary termination
of employment within nine months of a Change of Control, the Participant
shall forfeit all of such Participant's shares of Restricted Stock and
receive in return, without interest, a cash payment equal to (i) the
lesser of: (1) the aggregate Unit Price for such Restricted Stock, and
(2) the closing price per share of Stock on the Composite Tape of the New
York Stock Exchange on the Participant's date of termination or
Retirement, multiplied by (ii) the number of shares of Restricted Stock
owned by the Participant.
(c) If a Participant voluntarily terminates employment (other
than as set forth in subsections (a) or (b) of this Section 4.3), is
involuntarily terminated for Cause, or retires prior to attaining the age
of fifty-five, such Participant shall forfeit such Participant's
Restricted Stock.
Section 4.4. Voting Rights. During the Restriction Period the
shares of Restricted Stock shall be voted by the Chairman of the Committee, and
the Chairman shall vote such shares in accordance with instructions received
from Participants. Shares as to which no instructions are received shall be
voted by the Chairman proportionately in accordance with instructions received
from Participants in the Plan.
ARTICLE V
OPTIONS
Section 5.1. Issuance. Options received as part of a Unit shall be
issued to the Participant (or the Participant's designated Beneficiary in
accordance with Section 5.5(c) below) on January 1, 1996 with an exercise price
per share equal to the closing price per share on the Composite Tape of the New
York Stock Exchange on the last business day prior to the issuance of the
Options.
Section 5.2. Stock Option Agreement. Recipients of Options shall enter
into a Stock Option Agreement with the Company upon election to participate in
the Plan, in such form as
<PAGE> -14-
the Committee shall determine, which Agreement shall set forth, among other
things, the exercise price of the Option, the term of the Option and provisions
regarding exercisability of the Option granted thereunder.
Section 5.3. Transfer Restrictions. Options are not transferable other
than by will or the laws of descent and distribution. During the lifetime of a
Participant, the Options may be exercised only by the Participant.
Section 5.4. Exercise of Options. Options acquired hereunder will vest
and become exercisable on January 1, 2001 (unless earlier forfeited or
terminated) and will remain exercisable for a period of twenty-four months,
until December 31, 2002. An Option shall not be exercisable unless payment in
full is made for the shares being acquired thereunder at the time of exercise;
such payment shall be made (a) in United States dollars by cash or check, or
(b) in lieu thereof, unless the Committee shall in its sole discretion
determine otherwise, by tendering to the Company Stock owned by the person
exercising the Option (or owned by the person exercising the Option and his or
her spouse, jointly) and acquired more than six months prior to such tender,
and having a fair market value equal to the cash exercise price applicable to
such Option, such fair market value to be determined in such reasonable manner
as may be provided for from time to time by the Committee or as may be required
in order to comply with or to conform to the requirements of any applicable or
relevant laws or regulations, or (c) by a combination of United States dollars
and Stock as aforesaid.
Section 5.5. Termination of Employment. An Option shall not be
exercisable unless the person exercising the Option has been, at all times
during the period beginning with the date of purchase of the Option and ending
on the date of such exercise, an Employee of the Company, except that:
(a) Upon a Participant's death, Permanent Disability, Retirement
with the written consent of the President or the Chief Executive Officer
of the Company or the Affiliate by which such Participant is employed,
voluntary termination of employment more than nine months after a Change
of Control, or involuntary termination of employment (other than a
termination for Cause), the Options shall immediately vest and shall be
exercisable for a period of three months after the Participant's
termination of employment by the Participant or the Participant's
designated Beneficiary, as the case may be.
(b) Upon a Participant's voluntary termination of employment
(other than as set forth in subsection (a) of this Section 5.5),
involuntary termination for Cause, retirement prior to attaining the age
of fifty-five, or Retirement without the written consent of the President
or the Chief Executive Officer of the Company or the Affiliate by which
such Participant is employed, the Participant shall forfeit such
Participant's unvested Options.
(c) If a Participant shall have terminated employment for any
reason after the acquisition of Units hereunder but prior to the issuance
of the Option portion of such
<PAGE> -15-
Units, any Option acquired as part of the Unit shall be forfeited as
provided in subsection (b) of this Section 5.5.
ARTICLE VI
ELECTION
Section 6.1. Election. A Participant as defined in Section 2.1
shall elect the Amount Deferred as defined in Section 3.1 for the Deferral
Period on such forms as the Committee may prescribe according to Section
10.2(h). Such election shall be made by or on December 16, 1994 or such date
as the Committee may permit prior to the beginning of the Deferral Period.
Section 6.2. Change of Election. Following an election by a Participant
made pursuant to Section 6.1 to have an Amount Deferred, such Participant at
any time during the Deferral Period may choose to discontinue all (but not less
than all) Amounts Deferred with respect to Compensation due to the Participant
during subsequent calendar quarters of the Deferral Period. Such election
shall be made on such form as the Committee may prescribe and shall become
effective as of the first day of the calendar quarter following receipt of such
form by the Committee.
ARTICLE VII
ADJUSTMENTS UPON A CHANGE IN COMMON STOCK
In the event of any change in the outstanding Stock of the Company by
reason of any stock split, stock dividend, recapitalization, merger,
consolidation, reorganization, combination or exchange of shares or other
similar event if such change equitably requires an adjustment in the number or
kind of shares that may be issued under the Plan, or in the number or kind of
shares subject to, or the option price per share under, any outstanding Option
which has been purchased by any Participant, such adjustment shall be made by
the Committee and shall be conclusive and binding for all purposes of the Plan.
In no event shall the excess of the aggregate fair market value of the Stock
subject to the Options immediately after any substitution, exchange or
adjustment over the aggregate option price for such Stock be more than the
excess of the aggregate fair market value of all of the Stock subject to the
Option immediately before any such substitution, exchange or adjustment over
the aggregate option price of such Stock nor shall the adjusted Option give the
holder thereof any additional benefits he did not have under the old Option.
ARTICLE VIII
WITHHOLDING
In the event that the Company determines that it or an Affiliate is
required by law to withhold taxes at any time, including, but not limited to,
upon the exercise of an Option or upon the vesting of shares of Restricted
Stock, the Company shall have the right to require a Participant to pay to the
Company the amount of taxes that the Company or Affiliate is
<PAGE> -16-
required to withhold or, in lieu thereof, (a) to retain, or sell without
notice, a sufficient number of shares of Restricted Stock held by it for the
Participant to cover the amount to be withheld, or (b) to withhold the amount
of such taxes from any other sums due or to become due from the Company or an
Affiliate to the Participant upon such terms and conditions as the Committee
shall prescribe.
ARTICLE IX
AMENDMENT AND TERMINATION
Section 9.1. Power to Amend. The Board of Directors may amend, modify,
change, or revise the Plan by amendment at any time; provided, however, that
(a) no amendment shall increase the duties or liabilities of the Board of
Directors or the Committee without written consent of each member and (b) no
amendment shall be made without the written covenant of a Participant if the
effect of such amendment would reduce the rights of a Participant with respect
to Units acquired prior to the date of the amendment.
Section 9.2. Plan Termination. The continuation of the Plan is not
assumed as a contractual obligation of the Company and the right is reserved by
the Company at any time to discontinue the Plan. The Plan may be terminated by
the Board of Directors at any time, when in its judgment, business, financial
or other good causes make such termination necessary or appropriate; such
termination to become effective upon the delivery of notice by the Board of
Directors or the Committee to the Participants.
ARTICLE X
ADMINISTRATION OF THE PLAN
Section 10.1. Authority and Responsibility of the Committee. The Board
of Directors shall appoint the members of a Committee, which members shall hold
office at the pleasure of the Board of Directors. Said Committee shall consist
of not less than three nor more than eight members, any one or more of whom
may, but need not, be an officer of the Company. If there is at any time a
vacancy on the Committee for any reason, the Board of Directors shall fill such
vacancy, but the Committee may act notwithstanding the existence of vacancies
as long as there shall continue to be at least two members of the Committee.
The Committee shall select a Chairman from among its members. The Committee
shall have overall responsibility for the administration and operation of the
Plan. The Committee will have all powers as may be necessary to discharge its
duties hereunder.
Section 10.2. Committee Duties. The Committee, on behalf of the
Participants and all other Beneficiaries of the Plan, will administer and
operate the Plan in accordance with the terms of the Plan and will have all
powers necessary to accomplish that purpose, including, but not limited to, the
following:
<PAGE> -17-
(a) To issue rules and regulations necessary for the proper conduct and
administration of the Plan and to change, alter, or amend such
rules and regulations;
(b) To construe the Plan;
(c) To determine all questions arising in the administration of the
Plan, including those relating to the eligibility of persons to
become Participants in accordance with Article II and the rights of
Participants and their Beneficiaries, and its decisions thereon
shall be final and binding upon all persons hereunder;
(d) To oversee the retention of records relating to Participants and
other matters applicable to the Plan;
(e) To make available to Participants and Beneficiaries upon request,
for examination during business hours, such records as pertain
exclusively to the examining Participant (or Beneficiary);
(f) To prescribe procedures to be followed by Participants and
Beneficiaries in making claims hereunder;
(g) To make available for inspection and to provide upon request at
such charge as may be permitted and determined by the Company, such
documents and instruments, if any, as the Committee deems
appropriate;
(h) To prescribe and adopt the use of necessary forms;
(i) To appoint such agents and other specialists to aid it in the
administration of the Plan as it deems necessary; and
(j) To make periodic reports on the operation and administration of the
Plan to the Board of Directors as may be required in any articles
of incorporation, charter, or by-laws pertaining to the Company.
Section 10.3. Records. The regularly kept records of the Committee and
the Company shall be conclusive evidence as to all matters contained therein
applicable to this Plan.
Section 10.4. Committee Decisions Final. The decisions of the Committee
concerning matters within its jurisdiction shall be final, binding, and
conclusive upon the Company and its Affiliates, the Participants, Beneficiaries
and any other person or party interested or concerned.
Section 10.5. Committee as Agent. The Committee shall act as agent for
the Company in the administration of the Plan.
<PAGE> -18-
Section 10.6. Plan Expenses. All clerical, legal and other expenses of
the Plan shall be paid by the Company.
Section 10.7. Allocations and Delegations of Responsibility.
(a) Delegations. The Committee shall have the authority to delegate,
from time to time, all or any part of its responsibilities under
the Plan to such person or persons as it may deem advisable and in
the same manner to revoke any such delegation of responsibility.
Any action of the delegate in the exercise of such delegated
responsibilities shall have the same force and effect for all
purposes herein as if such action had been taken by the Committee.
The Board of Directors or the Committee shall not be liable for any
act or omission of any such delegate. The delegate shall report
periodically to the Committee concerning the discharge of the
delegated responsibilities.
(b) Allocations. The Committee shall have the authority to allocate,
from time to time, all or any part of its responsibilities under
the Plan to one or more of its members as it may deem advisable,
and in the same manner to revoke such allocation of
responsibilities. Any action of the member to whom
responsibilities are allocated in the exercise of such allocated
responsibilities shall have the same force and effect for all
purposes hereunder as if such action had been taken by the
Committee. The Board of Directors or the Committee shall not be
liable for any acts or omissions of such member. The member to
whom responsibilities have been allocated shall report periodically
to the Committee concerning the discharge of the allocated
responsibilities.
(c) Limit on Liability. Duties and responsibilities which are carried
out in good faith by the Committee hereunder or which have been
allocated or delegated pursuant to the terms of the Plan or
subsections (a) or (b) of this Section 10.7 shall not create any
liability of the Company, Board of Directors, or Committee, or any
member thereof.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. Merger. Any successor corporation to the Company, by
merger, consolidation, purchase or otherwise, shall be substituted hereunder
for the Company. This Plan shall be binding on all successors to and assigns
of the Company; provided that such successors or assigns may terminate the Plan
in accordance with the provisions hereof.
Section 11.2. Securities Laws. The Committee may require each person
purchasing shares pursuant to an Option or shares of Restricted Stock to
represent and agree with the Company in writing that such person is acquiring
the shares without a view to distribution thereof. The certificates for such
shares may include any legend which the Committee deems
<PAGE> -19-
appropriate to reflect any restriction on transfer. Furthermore, all
certificates for shares of Stock delivered under the Plan shall be subject to
such stock-transfer orders and other restrictions as the Committee may deem
advisable under the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which the Stock is
then listed, and any applicable Federal or state securities law, and the
Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions.
Section 11.3. Indemnification. The Company shall indemnify and hold
harmless to the extent legally permitted each member of the Board of Directors,
the Committee and each officer and Employee of the Company to whom are
delegated duties, responsibilities, and authority with respect to the Plan
against all claims, liabilities, fines and penalties, and all expenses
reasonably incurred by or imposed upon such delegate or agent (including but
not limited to reasonable attorney fees) which arise as a result of actions or
failure to act in connection with the operation and administration of the Plan.
Section 11.4. Contract of Employment. Nothing contained herein shall be
construed to constitute a contract of employment between the Company or an
Affiliate and any Employee or Participant. Nothing contained herein will
confer upon any Participant the right to be retained in the service of the
Company or an Affiliate or limit the right of the Company or an Affiliate to
discharge or otherwise deal with any Participant without regard to the
existence of the Plan.
Section 11.5 Disclosure. Each Participant shall receive a copy of
the summary of the Plan and the Committee will make available for inspection by
any Participant or Beneficiary a copy of the Plan and any written procedures
used by the Committee in administering the Plan.
Section 11.6. Headings. The headings of Articles and Sections are
included solely for convenience of reference, and if there is any conflict
between such headings and the text of the Plan, the text shall control.
Section 11.7. Invalidity of Certain Provisions. If any provision of the
Plan shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions hereof, and the Plan
shall be construed and enforced as if such provisions, to the extent invalid or
unenforceable, had not been included.
Section 11.8. Law Governing. The Plan shall be construed and enforced
according to the laws of the State of Connecticut (other than its laws
respecting choice of law).
Section 11.9. Limitation on Liability. Neither the Company nor any
agent or representative of the Company who is an employee, officer, or director
of the Company in any manner guarantees the payments to be made under the Plan
against loss or depreciation, and to the extent not prohibited by federal law,
none of them shall be liable (except for his own gross negligence or willful
misconduct), for any act or failure to act, done or omitted in good faith,
<PAGE> -20-
with respect to the Plan. The Company shall not be responsible for any act or
failure to act of any agent appointed to administer the Plan.
Section 11.10. Gender. Except when otherwise indicated by the context,
any masculine terminology herein shall also include the feminine, and the
definition of any term herein in the singular shall also include the plural.
THE ADVEST GROUP, INC.
By:_________________________
(Allen Weintraub)
Chief Executive Officer
ATTEST:
__________________________________
<PAGE> -21-
Exhibit 5
Day, Berry & Howard
CityPlace
Hartford, Connecticut 06103-3499
October 31, 1994
The Advest Group, Inc.
One Commercial Plaza
280 Trumbull Street
Hartford, CT 06103
Gentlemen:
We have acted as your special counsel with respect to the Registration
Statement on Form S-8 under the Securities Act of 1933, as amended, to be
filed by The Advest Group, Inc. (the "Company") with the Securities and
Exchange Commission, relating to a maximum of 800,000 shares of the common
stock, $.01 par value, of the Company (the "Shares") issuable under The Advest
Group, Inc. 1995 Equity Plan (the "Plan"), 400,000 of which Shares may be
issued directly under the Plan and 400,000 of which Shares may be issued upon
the exercise of options issuable under the Plan.
We have examined the Plan, the minutes of the corporate proceedings of
the Board of Directors of the Company and such other documents as we have
deemed relevant and necessary as a basis for our opinion below.
Based upon the foregoing, we are of the opinion that the Shares to be
issued under the Plan will, when so issued upon receipt of the consideration
specified in the Plan, be validly issued, fully paid and non-assessable
(assuming that, at the time of such issuance, the Company has a sufficient
number of authorized and unissued shares or treasury shares available for such
issuance).
We consent to the use of this opinion as Exhibit 5 to the aforesaid
Registration Statement. In giving such consent, we do not thereby admit that
we are within the category of persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the Rules and Regulations of
the Securities and Exchange Commission thereunder.
Very truly yours,
DAY, BERRY & HOWARD
<PAGE> -22-
Exhibit 15
October 27, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: The Advest Group, Inc.
Registration on Form S-8
We are aware that our reports dated January 20, 1994, April 21, 1994 and July
20, 1994 on our reviews of interim financial information of The Advest Group,
Inc., included in the Company's quarterly reports on Form 10-Q for the
quarters ended December 31, 1993, March 31, 1994 and June 30, 1994,
respectively, are incorporated by reference in this registration statement.
Pursuant to Rule 436(c) under the Securities Act of 1933, this report should
not be considered a part of the registration statement prepared or certified
by us within the meaning of Sections 7 and 11 of that Act.
Coopers & Lybrand L.L.P.
<PAGE> -23-
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the statement of The Advest
Group, Inc. on Form S-8 of our report dated October 28, 1993, on our audits of
the consolidated financial statements and financial statement schedules of The
Advest Group, Inc. as of Sepember 30, 1993 and 1992, and for the two years
then ended, which report is included in the Annual Report on Form 10-K for the
year ended September 30, 1993.
Coopers & Lybrand L.L.P.
Hartford, Connecticut
October 27, 1994
<PAGE> -24-
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 registration statement of our report dated October
24, 1991, included or incorporated by reference in the Company's Form 10-K
for the year ended September 30, 1993, and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN L.L.P.
Hartford, Connecticut
October 27, 1994
