Exhibit 10(r)
EMPLOYMENT AGREEMENT BETWEEN
THE ADVEST GROUP, INC. AND XXXXX X. XXXXX
THIS EMPLOYMENT AGREEMENT is entered into as of this first
day of October, 1997 between XXXXX X. XXXXX ("Xx. Xxxxx") and The
Advest Group, Inc. ("Advest").
W I T N E S S E T H
WHEREAS, Xx. Xxxxx has been employed by Advest since 1985
and has served as its President since March 1995; and
WHEREAS, the parties now wish to enter into this Agreement
(the "Employment Agreement") to set forth their mutual
understanding concerning Xx. Xxxxx'x continued employment by
Advest;
NOW, THEREFORE, for good and valid consideration the parties
agree as follows:
1. Employment and Duties. Advest hereby agrees to employ
Xx. Xxxxx as President, to perform all of the duties and
responsibilities normally performed and pertinent to this office,
reporting to and under the direction of the Chief Executive
Officer. Xx. Xxxxx agrees to be so employed.
2. Term. The term of this Agreement shall commence as of
October 1, 1997 and continue through September 30, 2002, unless
earlier terminated pursuant to Section 5. The term "Agreement
Term" shall mean the term of this Agreement plus any extensions
thereto.
3. Compensation. Xx. Xxxxx'x compensation shall be
established each year by the Compensation Committee of the Board
of Directors and will include both salary and additional
compensation under the Management Incentive Plan ("MIP") adopted
by the Board of Directors. In no event shall Xx. Xxxxx'x salary
be less than his salary as of the date this Agreement is
executed, or any amount to which his salary is thereafter
increased; provided, however, that Xx. Xxxxx'x salary shall with
his written consent be subject to reduction in the event of a
reduction in the salaries of senior executive officers of Advest
generally. Nor will Xx. Xxxxx'x share of the MIP be less than
any other participant eligible for MIP other than the Chief
Executive Officer.
4. Representations. Xx. Xxxxx agrees that during the term
of his employment with Advest he will not be employed by any
other person or organization except for Advest subsidiaries and
except also for outside directorships in accordance with Advest's
usual policies.
5. Termination. This Agreement may be terminated by Xx.
Xxxxx'x voluntary resignation upon a minimum of three months
notice (other than in the case of unforeseen health problems).
If Xx. Xxxxx'x employment is terminated during the Agreement
Term, the following provisions shall apply:
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(a) Termination of Employment by Advest Without Cause or by
Xx. Xxxxx for Good Reason. If, before the end of the Agreement
Term, Advest terminates Xx. Xxxxx'x employment for any reason
other than for Cause (as defined below), or if Xx. Xxxxx
terminates his employment with Advest for Good Reason (as defined
below), Advest shall pay to Xx. Xxxxx immediately after the date
of termination in a lump-sum in immediately available funds, an
amount equal of the sum of (i) Xx. Xxxxx'x annual base salary
which is accrued but unpaid as of the date of the termination,
(ii) that portion of Xx. Xxxxx'x additional compensation under
the MIP ("Bonus") which is earned with respect to the fiscal year
ending prior to the date of termination but that is unpaid as of
the date of termination, (iii) the product of (A) the amount of
the Bonus to which Xx. Xxxxx would have been entitled had he been
employed by Advest on the last day of the fiscal year containing
the date of termination (calculated based upon Xx. Xxxxx'x
average Bonus for the three years immediately prior to his
termination of employment) multiplied by (B) a fraction, the
numerator of which is the number of days which have elapsed in
such fiscal year through the date of termination and the
denominator of which is 365 ("Pro-Rata Annual Bonus"), (iv) Xx.
Xxxxx'x salary through the end of the Agreement Term, and (v) Xx.
Xxxxx'x Bonus through the end of the Agreement Term (calculated
based upon his average Bonus for the three years immediately
prior to his termination of employment). In addition,
notwithstanding any other provision of this Agreement, if Xx.
Xxxxx'x employment is terminated by Advest other than for Cause
or by Xx. Xxxxx for Good Reason, all options granted to Xx. Xxxxx
under the Advest Group, Inc. 1993 Stock Option Plan, the Advest
Group, Inc. 1986 Stock Option Plan, the Advest Group, Inc. 1983
Incentive Stock Option Plan, the Advest Group Executive Equity
Plans, and any other outstanding equity that Xx. Xxxxx received
under any other plan or agreement (collectively, "Equity
Incentive Awards"), shall immediately and fully vest upon the
date of termination, and shall remain exercisable for not less
than 90 days therefrom. Through the end of the Agreement Term,
Xx. Xxxxx shall also continue to participate in all Advest-
sponsored incentive, savings and retirement plans, and shall
continue to receive benefits under all welfare benefit plans,
practices, policies and programs provided by Advest (including,
and without limitation, medical, prescription, dental,
disability, employee life, group life, dependent life, accidental
death and travel insurance plans and programs) applicable to
other senior executives of Advest; provided, however, that any
amounts paid under this sentence shall be reduced by any similar
benefits earned by Xx. Xxxxx as a result of employment by another
employer.
For purposes of this Agreement, "Good Reason" shall mean the
occurrence of any one of the following events:
(i) failure of Xx. Xxxxx to continue to be appointed
or elected to the positions of President and member of the
Board of Directors of Advest;
(ii) assignment of Xx. Xxxxx of any duties materially
and adversely inconsistent with Xx. Xxxxx'x position as
President and member of the Board of Directors, including
status, offices, or responsibilities, or any other
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action of Advest that results in a material and
adverse change in such position, status, offices,
titles or responsibilities or any other material
adverse change to the terms and conditions of Xx.
Xxxxx'x employment under this Agreement;
(iii) any material and adverse change in Xx.
Xxxxx'x reporting responsibilities;
(iv) any material breach by Advest of the provisions of
this Agreement;
(v) Advest's requiring, without written consent of Xx.
Xxxxx, that Xx. Xxxxx be based at any office or location
more than 50 miles from his regular place of business as of
the date of the execution of this Agreement;
(vi) the liquidation or dissolution of Advest, or sale
of substantially all of the assets of Advest or the sale of
assets of Advest which produce more than 30% of Advest's
gross revenues unless in advance of any such sale Xx. Xxxxx
waives this provision in writing; or
(vii) any purported termination of Xx. Xxxxx'x
employment under this Agreement which is not for Cause in
strict accordance with Sections 5(a) and 5(d) and of this
Agreement.
For purposes of this Agreement, "Cause" shall mean willful
misconduct, gross negligence, the conviction of Xx. Xxxxx of a
criminal offense for violation of the securities laws or
involving moral turpitude, or a determination by the Board (a
"Determination") that (i) Xx. Xxxxx has or is engaged in the
securities industry in any capacity, including as an employee or
consultant, that the Board has determined to be materially
detrimental to Advest or its business, and Xx. Xxxxx has not
provided the Board with adequate assurance that he will refrain
therefrom after written request from the Board, or (ii) Xx. Xxxxx
has breached his obligation under Section 6. Notwithstanding the
foregoing, Xx. Xxxxx shall not be deemed to have been terminated
for Cause without (1) Cause having been committed by Xx. Xxxxx,
(2) advance written notice provided to Xx. Xxxxx not less than
fourteen (14) days prior to the date of termination, setting
forth Advest's intention to consider terminating Xx. Xxxxx
including a statement of the date of termination and the specific
detailed basis for such consideration for Cause, (3) an
opportunity for Xx. Xxxxx, together with his counsel, to be heard
before the Board during the fourteen (14) day period ending on
the date of termination, (4) determination in accordance with the
next to last sentence of this Section 5(a) by the members of the
Board, that the actions of Xx. Xxxxx constituted Cause and that
Xx. Xxxxx'x employment should accordingly be terminated for
Cause, and (5) a written determination provided by the Board
setting forth in full specificity the basis of such termination
of employment. By determination of the Board in accordance with
the next to the last sentence of this Section 5(a), Advest may
suspend Xx. Xxxxx from his duties for a period of up to thirty
(30) days with full pay and benefits hereunder during the period
of time in which the Board is making a determination as to
whether to terminate for Cause. Any determination by the Board
hereunder shall be made by the affirmative vote of the non-
employee members of the Board with a vote in favor of the
determination by a number of non-employee members who constitute
at least 75% of
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the non-employee members of the Board. Any purported termination
of employment of Xx. Xxxxx by Advest which does not meet each and
every substantive and procedural requirement of this Section 5(a)
shall be treated for all purposes under this Agreement as a
Termination of Employment Without Cause as addressed under this
Section 5(a).
(b) Termination Due to Death. If before the end of the
Agreement Term Xx. Xxxxx'x employment terminates due to death,
Advest shall immediately after the date of such termination pay
to Xx. Xxxxx, or to Xx. Xxxxx'x Beneficiary (as defined below), a
lump-sum amount equal to the sum of (A) Xx. Xxxxx'x annual base
salary which is accrued but unpaid as of the date of termination,
plus (B) that portion of Xx. Xxxxx'x annual Bonus which is earned
with respect to the fiscal year ending prior to the date of
termination but which is unpaid as of the date of termination,
plus (C) Xx. Xxxxx'x Pro-Rata Annual Bonus for the fiscal year
containing the date of termination. In addition, Xx. Xxxxx'x
Equity Incentive Awards shall immediately and fully vest upon the
date of termination, and shall remain exercisable for not less
than one year therefrom. For purposes of this Agreement, Xx.
Xxxxx'x "Beneficiary" shall mean such person as Xx. Xxxxx shall
designate pursuant to Section 11.2 of the Advest Thrift Plan, or,
if no such beneficiary designation is in effect, his estate.
(c) Termination Due to Disability. If before the end of the
Agreement Term Xx. Xxxxx'x employment is terminated due to a
mental or physical disability which prevents Xx. Xxxxx from
performing the essential functions of the office of President for
a continuous period of at least six months, and which in the
opinion of the Board of Directors will be permanent or will last
for an indefinite duration, Xx. Xxxxx shall receive immediately
after the date of termination: (i) all benefits which are
normally provided to senior Advest executives in the event of
disability, and (ii) a lump-sum amount equal to the sum of (A)
Xx. Xxxxx'x annual base salary which is accrued but unpaid as of
the date of termination, plus (B) that portion of Xx. Xxxxx'x
annual Bonus which is earned with respect to the fiscal year
ending prior to the date of termination but which is unpaid as of
the date of termination, plus (C) Xx. Xxxxx'x Pro-Rata Annual
Bonus for the fiscal year containing the date of termination. In
addition, Xx. Xxxxx'x Equity Incentive Awards shall immediately
and fully vest upon the date of termination, and shall remain
exercisable for not less than one year therefrom.
(d) Termination of Employment by Advest for Cause, or by Xx.
Xxxxx for other than Good Reason. If Xx. Xxxxx'x employment is
terminated by Advest for Cause, or by Xx. Xxxxx for other than
Good Reason, Xx. Xxxxx shall receive immediately after the date
of termination a lump-sum amount equal to the sum of (i) Xx.
Xxxxx'x annual base salary which is accrued but unpaid as of the
date of termination, and (ii) that portion of Xx. Xxxxx'x annual
Bonus which is earned with respect to the fiscal year ending
prior to the date of termination but which is unpaid as of the
date of termination.
(e) Other Termination Benefits. In addition to any amounts or
benefits payable upon a termination of employment under the terms
of this Agreement, and except as otherwise provided herein, Xx.
Xxxxx shall be entitled to any payments or benefits provided
under the terms of any
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plan, policy or program of Advest or as otherwise required by
applicable law; provided, however, that amounts payable hereunder
shall be reduced by any severance compensation to which Xx. Xxxxx
may be entitled and is paid under any plan, policy, or program of
Advest.
(f) Notwithstanding anything to the contrary set forth in this
Agreement, in the event that Advest is otherwise obligated to
provide certain benefits under this Agreement, Advest may elect
to provide an alternative benefits as follows:
(i) In the event that Advest would otherwise be obligated
to alter the vesting or exercisability provisions of any
Equity Incentive Awards, in its discretion Advest may offer
to pay to Xx. Xxxxx in lieu thereof a lump sum amount equal
to the amount, if any, by which the market value of the
underlying equity as of the date of termination exceeds the
exercise price. Xx. Xxxxx may accept this offer by Advest
or elect to exercise any rights he may have under the Equity
Incentive Awards without modification.
(ii) To the extent that it would violate applicable law
or regulation or the provisions of any Advest-sponsored
incentive, savings or retirement plan or any welfare benefit
plan, practices policy or program, Advest shall be excused
from offering Xx. Xxxxx participation in such plan, policy
or program. In that event, Advest shall pay to Xx. Xxxxx an
amount equal to the net after-tax cost that would be
incurred by Xx. Xxxxx in obtaining comparable alternative
benefits. In the case of any benefits receivable under
health, life or disabilty insurance policies, this amount
will be deemed to be the net after-tax cost of obtaining
such coverage.
(iii) Advest will use its best efforts to obtain for Xx.
Xxxxx Directors and Officers insurance coverage to the
extent called for under paragraph 6(c) and will do so unless
it would involve excessive and unreasonable expense. If
Advest fails to obtain required coverage for Xx. Xxxxx,
without limitation of Advest's obligations under Section
6(c), it will nevertheless provide to Xx. Xxxxx
indemnification for costs and expenses comparable to that
which would have been provided by such a policy.
6. Confidential Information. Xx. Xxxxx shall not at any
time after termination of employment reveal to anyone other
than authorized representatives of Advest, or use for his
own benefit or the benefit of any third party, any trade
secrets, customer information or other information that has
been designated as confidential by Advest or is understood
by Xx. Xxxxx to be confidential, unless such information is
or becomes available to the public or is otherwise public
knowledge or in the public domain for reasons other than Xx.
Xxxxx'x acts or omissions.
7. Amendments. This Agreement can only be altered by
written amendment executed by both parties.
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8. Arbitration. Any claim controversy arising between the
parties shall be settled by arbitration before a New York
Stock Exchange, National Association of Securities Dealers,
or American Arbitration Association panel at the option of
the employee. The arbitrators shall have no authority to
modify any provision of this Agreement or to award a remedy
for a dispute involving this Agreement other than a benefit
specifically provided under this Agreement. The decision of
the arbitrators shall be final and binding on Advest and Xx.
Xxxxx, who shall each pay their own legal fees and expenses
associated with arbitration and share any arbitration fees.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above.
THE ADVEST GROUP, INC.
By: /S/ XXXXX XXXXXXXXX /s/ XXXXX X. XXXXX
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Xxxxx Xxxxxxxxx Xxxxx X. Xxxxx
Chief Executive Officer in his individual
capacity
CONFIRMED
By: /S/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Chairman, Compensation Committee
for the Board of Directors
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