As filed with the Securities and Exchange Commission on July 2, 1999.
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 06-0950444
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
90 State House Square, Hartford, Connecticut 06103
(Address of Principal Executive Offices)
The Advest Group, Inc. 1994 Non-Employee Director Stock Option Plan
The Advest Group, Inc. Equity Plan
The Advest Group, Inc. Key Professionals Equity Plan
The Advest Group, Inc. Non-Employee Director Equity Plan
The Advest Group, Inc. Thrift Plan
(Full title of the plan)
Lee G. Kuckro, Esq.
Secretary and General Counsel
The Advest Group, Inc.
90 State House Square
Hartford, Connecticut 06103
(Name and address of agent for service)
(860) 509-1000 ext. 2406
(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(1) per share(2) price fee
Common Stock, 2,000,000 shs. $20.125 $40,250,000 $11,190.00
$.01 par value
1 Such shares are offered pursuant to the following plans of The Advest Group,
Inc.; 1994 Non-Employee Director Stock Option Plan; Advest Equity Plan; Key
Professionals Equity Plan; Non-Employee Director Equity Plan; and Advest
Thrift Plan.
2 Estimated pursuant to Rule 457(c) and Rule 457(h) solely for the purposes 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 July 2, 1999.
<PAGE> -2-
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to shares of Common Stock, par value
$.01 per share ("Common Stock"), which may be acquired or have been acquired
under the following plans of The Advest Group, Inc. (the "Company"): 1994 Non-
Employee Director Stock Option Plan (the "1994 Option Plan"); Advest Equity Plan
(the "Equity Plan"); Key Professionals Equity Plan; Non-Employee Director Equity
Plan; and Advest Thrift Plan. With respect to the 1994 Option Plan and the
Equity Plan, this Registration Statement includes (i) shares of Common Stock,
par value $.01 per share which may be acquired or have been acquired by
participants and (ii) shares of common stock which may be acquired by
participants upon exercise of options issued or issuable under such
plans.
Item 3. Incorporation of Documents by Reference.
The following documents filed by 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, 1998, 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, 1998 and March 31, 1999; and
(c) The description of the Company's Common Stock which is contained in
its registration statement on Form 8-A 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 shares of Common Stock 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.
<PAGE> -3-
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
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.
<PAGE> -4-
Item 8. Exhibits.
The following exhibits are filed herewith:
Exhibit No. Description
4.1 The Advest Group, Inc. 1994 Non-Employee Director Stock Option Plan
(incorporated by Reference to Exhibit A to the Company's Proxy Statement
dated December 20, 1994).
4.2 The Advest Group, Inc. Equity Plan, effective November 19, 1998, as
amended and restated as of June 3, 1999.
4.3 The Advest Group, Inc. Key Professionals Equity Plan (incorporated by
Reference to Exhibit 10(g) to the Company's Report on Form 10-K for its
fiscal year ended September 30, 1997).
4.4 The Advest Group, Inc. Non-Employee Director Equity Plan (incorporated
by Reference to Exhibit 10(b) to the Company's Report on Form 10-Q for
the quarter ended June 30, 1996).
4.5 The Advest Group, Inc. Thrift Plan (incorporated by Reference to
Exhibit 10(a) to the Company's Report on Form 10-Q for the quarter
ended December 31, 1992; Exhibit 10(a) to the Company's Report on Form
10-Q for the quarter ended June 30, 1996; and Exhibit 10(k) to the
Company's Report on Form 10-K for its fiscal year ended September 30,
1997).
5 Opinion of David A. Horowitz, Esq., Assistant General Counsel of the
Company, with respect to the legality of the Common Stock registered
hereby
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Letter re Unaudited Interim Statements.
23.3 Consent of David A. Horowitz, Esq. (See Exhibit 5.)
24 Power of attorney (See Signature Pages.)
Item 9. Undertakings.
A. Undertaking to Update Annually
The undersigned registrant hereby undertakes:
<PAGE> -5-
(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.
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
<PAGE> -6-
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.
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 June 29, 1999.
THE ADVEST GROUP, INC.
By /s/ Grant W. Kurtz
Grant W. Kurtz
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Grant W. Kurtz, Lee G. Kuckro and David A. Horowitz 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
/s/ Grant W. Kurtz Chief Executive Officer June 29, 1999
Grant W. Kurtz (Principal Executive Officer)
and Director
/s/ Martin M. Lilienthal Executive Vice President and June 29, 1999
Martin M. Lilienthal Treasurer (Chief Financial
and Principal Accounting
Officer)
<PAGE> -7-
/s/ Sanford Cloud, Jr. Director June 29, 1999
Sanford Cloud, Jr.
/s/ Ronald E. Compton Director June 29, 1999
Ronald E. Compton
/s/ Richard G. Dooley Director June 29, 1999
Richard G. Dooley
/s/ William B. Ellis Director June 29, 1999
William B. Ellis
/s/ Robert W. Fiondella Director June 29, 1999
Robert W. Fiondella
/s/ Marne Obernauer, Jr Director June 29, 1999
Marne Obernauer, Jr
/s/ Barbara L. Pearce Director June 29, 1999
Barbara L. Pearce
/s/ Allen Weintraub Chairman of the Board June 29, 1999
Allen Weintraub
<PAGE> -8-
Exhibit 4.2
THE ADVEST GROUP, INC.
EQUITY PLAN
The Advest Group, Inc. hereby amends and restates The Advest Group, Inc.
Equity Plan, effective June 3, 1999 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.
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The Advest Group, Inc. Equity Plan Page 2
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 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 XI.
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,
1999 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 X, or (c) December 31, 1999. In the event that this
Plan is extended for additional years under Section 9.3, "Deferral Period" for
purposes of those additional years shall mean the period beginning on the first
day of such year 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) the last day of such year.
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. "Employee" means any person who is a common-law employee of
the Company or an Affiliate.
Section 1.13. "Executive Officer" means any person who is an "executive
officer" for purposes of Section 16 of the 1934 Act.
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
<PAGE> -10-
The Advest Group, Inc. Equity Plan Page 3
provided in Articles II or VII.
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. Equity Plan". The Plan
offered during calendar 1999 may sometimes be referred to as "The Advest Group,
Inc. 1999 Equity Plan," and, in the event that this Plan is extended for
additional years under Section 10.3, the Plan offered during those additional
years may be referred to in a corresponding manner.
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 (measured as of the first
day of the Deferral Period), 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 an Executive Officer or another key employee designated by the
Chief Executive Officer of the Company on a list provided by the Chief
Executive Officer to the Committee before the first day of the Deferral
Period as eligible to participate in the Plan ("Key Employees").
<PAGE> -11-
The Advest Group, Inc. Equity Plan Page 4
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, Section 5.5 or Article VII, or (c) the date the Plan is terminated
in accordance with Article X.
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 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 Participant 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) an Executive Officer or
other Key Employee who had total compensation of $125,000 or more
during the calendar year immediately preceding the Deferral Period, 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 other than one described in paragraph (b) above, 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), 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 her 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 number of Units sold to exceed 400,000.
<PAGE> -12-
The Advest Group, Inc. Equity Plan Page 5
If, based upon Participant elections, the Committee anticipates at the
commencement of the Deferral Period that these aggregate limit is 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 the end of the first month of
the Deferral Period.
Section 3.2. Receipt of Units. Amounts deferred hereunder shall be
withheld from a Participant's paycheck in periodic 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 such Participant at the then
Unit Price. No interest or other earnings shall accrue on amounts deferred
prior to acquisition of Units. 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 the last
day of the Deferral Period 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 RECEIVED AS PART OF UNITS
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. Shares of
restricted stock purchased by executive officers under the 1995, 1996, 1997 and
1998 Executive Officer Restricted Stock and Stock Option Agreements shall be
deemed granted pursuant to this Article IV, and such shares shall be subject to
the terms and conditions of this Plan.
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 on the
fourth anniversary of the first day of the Deferral Period (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 Restriction 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,
<PAGE> -13-
The Advest Group, Inc. Equity Plan Page 6
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.
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.
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The Advest Group, Inc. Equity Plan Page 7
ARTICLE V
OPTIONS RECEIVED AS PART OF UNITS
Section 5.1. Issuance.
(a) Except with respect to Executive Officers, 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 the
first July 1st and January 1st following commencement of the Deferral
Period, in each case 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 and covering
the purchase of a number of shares of Stock equal to the number of shares
of Restricted Stock acquired by the Participant during the period from
January 1st to June 30 (in the case of the July 1st grant) or July 1st to
December 31st (in the case of the January 1st grant). Options granted to
Participants other than Executive Officers shall be subject to the terms
and conditions specified in Section 5.2 to 5.5 below.
(b) For Executive Officers, 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) promptly following the end of the
Deferral Period under The Advest Group, Inc. 1993 Stock Option Plan at an
exercise price per share equal to the closing price per share on the
Composite Tape of the New York Stock Exchange on the date of the issuance
of the Options and covering the purchase of a number of shares of Stock
equal to the number of shares of Restricted Stock acquired by the
Participant during the Deferral Period. Options granted to Participants
who are Executive Officers shall be subject to the terms and conditions of
the 1993 Stock Option Plan and, to the extent consistent with the 1993
Stock Option Plan, to the terms and conditions specified in Section 5.2 to
5.5 below.
Section 5.2. Stock Option Certificate. Recipients of Options shall
receive a notification or certificate, in such form as the Committee shall
determine, which shall set forth, among other things, the exercise price or
prices of the Options (or the formula for determining such exercise price), the
term of the Option and provisions regarding exercisability of the Options
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 the sixth anniversary of the first day of the Deferral
Period (unless earlier forfeited or terminated) and will remain exercisable for
a period of twenty-four months, terminating on the last day of the second year.
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
<PAGE> -15-
The Advest Group, Inc. Equity Plan Page 8
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 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 11.2(h). Such
election shall be made prior to the commencement 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
<PAGE> -16-
The Advest Group, Inc. Equity Plan Page 9
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
ADDITIONAL RESTRICTED STOCK AND OPTION GRANTS
In addition to the Restricted Stock and Options granted as part of Units,
the Chief Executive Officer of the Company, or any officer of the Company
designated by the Chief Executive Officer, may grant restricted stock and/or
options to newly hired or continuing employees of the Company or its
subsidiaries as an incentive to such persons to accept employment with the
Company or to remain in such employ. Such grants may be made on a discretionary
basis, without any requirement of compensation deferral, and will be subject to
the following terms.
Section 7.1. Restricted Stock. Restricted Stock granted under this
Article VII ("Article VII Restricted Stock") shall be issued pursuant to
restricted stock agreements containing such terms and conditions as the Chief
Executive Officer (or designee), in his or her sole discretion, may determine.
Subject to Article VIII, no more than 300,000 shares of Article VII Restricted
Stock shall be granted; provided, however, that if Article VII Restricted Stock
is forfeited, then the Article VII Restricted Stock shall again be available for
grant; and provided further, that the Board may raise the limit of grants under
this Section 7.1. Any restricted stock granted by the Company on or after August
23, 1996 pursuant to the discretionary authority granted by the Board of
Directors on November 21, 1996 and November 20, 1997 shall be deemed granted
pursuant to this Article VII, and shall be counted against the foregoing limits.
Section 7.2. Options. Options granted under this Article VII ("Article
VII Options") shall be issued under such terms and conditions as the Chief
Executive Officer (or designee), in his or her sole discretion, subject to the
following sentence, may determine. Any Article VII Option shall be subject to
the terms and conditions of the 1993 Stock Option Plan, and such other terms and
conditions, to the extent consistent with the 1993 Stock Option Plan, contained
in the certificate or notification of option grant; provided, that all Article
VII Options shall be nonqualified options and, upon exercise, the holders will
receive shares of Stock from treasury. Subject to Article VIII, no more than
200,000 shares of Stock shall be subject to Article VII Options; provided,
however, that if Article VII Options expire unexercised, then such Article VII
Options shall again be available for grant; and provided further, that the Board
may raise the limit of grants under this Section 7.1.
ARTICLE VIII
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
<PAGE> -17-
The Advest Group, Inc. Equity Plan Page 10
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 IX
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 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 X
AMENDMENT; TERMINATION; EXTENSION
Section 10.1. 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 consent of a Participant if the effect of such
amendment would reduce the rights of a Participant with respect to Units,
Restricted Stock, Options, Article VII Restricted Stock or Article VII Options
acquired prior to the date of the amendment.
Section 10.2. 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.
Section 10.3. Plan Extension. The Board of Directors may elect to
continue the provisions of this Plan respecting purchase of Units for additional
years after calendar 1999, in which case the Plan shall apply to the successive
Deferral Periods after calendar 1999 in the same manner as to the calendar 1999
Deferral Period. The provisions of Article VII will continue notwithstanding
<PAGE> -18-
The Advest Group, Inc. Equity Plan Page 11
any continuation of provisions of this Plan respecting purchase of Units through
May 31, 2009.
ARTICLE XI
ADMINISTRATION OF THE PLAN
Section 11.1. 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 11.2. 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:
(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 Articles II or VII 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;
<PAGE> -19-
The Advest Group, Inc. Equity Plan Page 12
(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 11.3. 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 11.4. 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 11.5. Committee as Agent. The Committee shall act as agent for
the Company in the administration of the Plan.
Section 11.6. Plan Expenses. All clerical, legal and other expenses of
the Plan shall be paid by the Company.
Section 11.7. 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
<PAGE> -20-
The Advest Group, Inc. Equity Plan Page 13
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 11.7 shall not create any liability of the Company, Board
of Directors, or Committee, or any member thereof.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. 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 12.2. 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 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 12.3. 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 12.4. 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 12.5 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
<PAGE> -21-
The Advest Group, Inc. Equity Plan Page 14
the Committee in administering the Plan.
Section 12.6. 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 12.7. 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 12.8. 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 12.9. 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, 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 12.10. 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:_________________________
Grant W. Kurtz
Chief Executive Officer
ATTEST:
_______________________________
<PAGE> -22-
EXHIBIT 5
June 29, 1999
The Advest Group, Inc.
90 State House Square
Hartford, Connecticut 06103
Members of the Board of Directors:
I have acted as counsel with respect to the Registration Statement on Form S-8
under the Securities Act of 1993, as amended, as filed by The Advest Group, Inc.
(the "Company") with the Securities and Exchange Commission, relating to
2,000,000 shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock") which may be acquired by participants under the following plans
of The Advest Group, Inc.: 1994 Non-Employee Director Stock Option Plan; Advest
Equity Plan; Key Professionals Equity Plan; Non-Employee Director Equity Plan;
and Advest Thrift Plan. (the "Plans").
As Assistant General Counsel of the Company, I am familiar with and have
examined the Plans, the minutes of the corporate proceedings of the Board of
Directors of the Company and such other documents as I have deemed necessary or
advisable for the purposes of this opinion.
Based upon the foregoing, I am of the opinion that the shares to be issued under
the Plans will, when so issued upon receipt of the consideration specified in
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 available for such issuance).
I hereby consent to the use of this opinion as Exhibit 5 to the aforesaid
Registration Statement. In giving such consent, I do not thereby admit that I
am in 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,
David A. Horowitz, Esq.
<PAGE> -23-
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
The Advest Group, Inc. on Form S-8 of our reports dated October 21, 1998, on our
audits of the consolidated financial statements and financial statement
schedules of The Advest Group, Inc. as of September 30, 1998 and 1997, and for
each of the three years in the period ended September 30, 1998, which reports
are included in the Annual Report on Form 10-K for the year ended September 30,
1998.
PricewaterhouseCoopers LLP
Hartford, Connecticut
June 29, 1999
<PAGE> -24-
EXHIBIT 23.2
June 29, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Commissioners:
We are aware that our reports dated April 14, 1999 and January 20, 1999 on our
reviews of interim financial information of The Advest Group, Inc.(the
"Company") for the periods ended March 31, 1999 and December 31, 1998 and
included in the Company's quarterly reports on Form 10-Q for the quarters then
ended is incorporated by reference in this Registration Statement.
Yours very truly,
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
