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Exhibit 4.4
FIRST SUPPLEMENT TO
EXECUTIVE OFFICER
1996 RESTRICTED STOCK AND
STOCK OPTION AGREEMENT
This First Supplement to the Executive Officer Restricted
Stock and Stock Option Agreement (the "Supplement") is entered
into as of the date set forth below, by the undersigned executive
officer ("Executive Officer") and The Advest Group, Inc. (the
"Company"). The purpose of this Supplement is to provide for the
deferral of a portion of the Executive Officer's Management
Incentive Plan compensation for fiscal 1996 and the investment of
that deferred amount in the Company's common stock under the
Executive Officer Equity Plan.
ARTICLE 1. Agreement to Participate and Amount
Deferred. Executive Officer hereby agrees to accept the portion
set forth below (the "Deferred Amount") of his or her Management
Incentive Plan compensation in the form of shares of common stock
of the Company subject to the restrictions set forth below (the
"Restricted Stock"). It is understood that this agreement of the
Executive Officer is a condition to the Executive Officer's
receipt of this Deferred Amount. Executive Officer hereby
authorizes the Company to withhold from his or her Management
Incentive Plan compensation the Deferred Amount. The Company
may, but shall not be obligated to, invest any Deferred Amount in
insured bank deposit accounts or other money-market investments
pending investment under this Supplement. On the fifth business
day after the date of release by the Company of annual summary
statements of financial data the Executive Officer's Deferred
Amount, together with any earnings thereon, shall be applied by
the Company to acquire shares of the Company's common stock (the
"Stock") at 100% of the closing price per share of the Stock on
the New York Stock Exchange on the day the Restricted Stock is
purchased. All purchases of Stock to be delivered under this
Supplement shall be from the unallocated treasury stock of the
Company. Fractional shares of Stock may be acquired by Executive
Officer, provided that the Company may establish procedures to
eliminate any fractional holdings. No stock options will be
issued in connection with purchases under this Supplement.
ARTICLE II. Restricted Stock Agreement. Executive Officer
hereby authorizes the Company to hold in the Company's name as
escrow agent for Executive Officer, all shares of Restricted
Stock to which Executive Officer is entitled.
A.Restrictions. Shares of Restricted Stock which are placed
into escrow for the benefit of Executive Officer will be subject
to the following restrictions and conditions:
(1) During the period commencing on the date of the
acquisition of any shares of Restricted Stock hereunder and
terminating on January 1, 2002 (together with
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any extensions of such period approved as provided herein)
(the "Restriction Period"), Executive Officer shall not be
permitted to sell, transfer, pledge or assign shares of
Restricted Stock acquired hereunder. One year extensions of
the Restriction Period for Restricted Stock purchased
hereunder will be made at Executive Officer's election,
which election must be in writing on a form provided by the
Company and must be made no later than one year before the
Restriction Period would otherwise terminate; provided,
however, that the Company may at any time determine that no
additional extensions of Restriction Periods will be
effective;
(2) Executive Officer shall have the right to direct
the vote of his or her shares of Restricted Stock during the
Restriction Period. Executive Officer shall have the right
to receive any regular dividends on such shares of
Restricted Stock. The Company shall in its sole discretion
determine Executive Officer's rights with respect to
extraordinary dividends on the shares of Restricted Stock;
and
(3)Shares of Restricted Stock shall be transferred to
Executive Officer'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 this Article)
without forfeiture in respect of such shares of Restricted
Stock.
B.Termination of Employment. Subject to the provisions of
subparagraph (A) above, the following provisions shall apply to
Executive Officer's shares of Restricted Stock prior to the end
of the Restriction Period (including extensions):
(1)Upon Executive Officer's death, Permanent
Disability, Retirement with the written consent of the
President or the Chief Executive Officer of the Company or
an an affiliate of the Company (an "Affiliate") by which
Executive Officer 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 Executive
Officer's Restricted Stock shall immediately lapse, and such
shares shall be delivered to Executive Officer or Executive
Officer's designated Beneficiary, as the case may be, within
a reasonable time after the occurrence of any such event.
For purposes of this Supplement, the following terms shall
have the stated definitions:
(i) "Permanent Disability" means a mental or
physical condition which renders Executive Officer
permanently unable or incompetent to engage in any
substantial gainful activity.
(ii) "Retirement" means the date Executive Officer
retires after attaining the age of fifty-five.
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(iii)"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 of this Supplement, 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.
(iv) "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.
(v) "Beneficiary" means any person (including,
but not limited to, Executive Officer's estate)
designated by Executive Officer on a form provided or
approved by the Company to receive any Stock to which
Executive Officer shall be entitled upon Executive
Officer's death in accordance with the terms of this
Supplement. If more than one Beneficiary shall be
designated, the Beneficiaries shall share equally in
any rights or interests of Executive Officer under this
Supplement. If Executive Officer shall fail to file a
valid designation form, or if all persons designated on
the designation form shall have predeceased Executive
Officer, the Company shall distribute all of Executive
Officer's Stock to which he or she shall have been
entitled upon his or her death to the Executive
Officer's estate.
(2) Upon Executive Officer's Retirement without the
written consent of the President or the Chief Executive
Officer of the Company or the Affiliate by which Executive
Officer is employed or voluntary termination of employment
within nine months of a Change of Control, Executive Officer
shall forfeit all of Executive Officer's shares of
Restricted Stock and receive in return, without interest, a
cash payment equal to (a) the lesser of: (i) the aggregate
purchase price for such Restricted Stock, and (ii) the
closing price per share of Stock on the Composite Tape of
the New York Stock Exchange on Executive Officer's date of
termination or Retirement, multiplied by (b) the number of
shares of Restricted Stock owned by Executive Officer.
(3) If Executive Officer voluntarily terminates
employment (other than as set forth in subparagraphs (1) or
(2) of this Article), is involuntarily terminated for Cause,
or retires prior to attaining the age of fifty-five,
Executive Officer shall forfeit Executive Officer's
Restricted Stock.
ARTICLE 3. Miscellaneous.
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A. Change of Election. Following an election by Executive
Officer to have an Amount Deferred hereunder, he or she may not
alter that election.
B. 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
hereunder, such adjustment shall be made by the Company and shall
be conclusive and binding for all purposes hereunder.
C. 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 vesting of
shares of Restricted Stock, the Company shall have the right to
require Executive Officer to pay to the Company the amount of
taxes that the Company or Affiliate is required to withhold, or,
in lieu thereof: (1) retain, or sell without notice, a sufficient
number of shares of Restricted Stock held by it for Executive
Officer to cover the amount to be withheld, or (2) withhold the
amount of such taxes from any other sums due or to become due
from the Company or an Affiliate to Executive Officer upon such
terms and conditions as the Company shall prescribe.
D. Amendment and Termination. The Board of Directors of
the Company may amend, modify, change, or revise this Supplement
by amendment at any time; provided, however, that (a) no
amendment shall increase the duties or liabilities of the Board
of Directors or the Company without written consent of each
member and (b) no amendment shall be made without the written
consent of Executive Officer if the effect of such amendment
would reduce the rights of Executive Officer with respect to
Restricted Stock acquired prior to the date of the amendment.
The continuation of this Supplement is not assumed as a
contractual obligation of the Company and the right is reserved
by the Company at any time to discontinue this Supplement. This
Supplement 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 Company to Executive Officer.
E. Merger. Any successor corporation to the Company, by
merger, consolidation, purchase or otherwise, shall be
substituted hereunder for the Company. This Supplement shall be
binding on all successors to and assigns of the Company; provided
that such successors or assigns may terminate this Supplement in
accordance with the provisions hereof.
F. Securities Laws. Regarding the purchasing of Restricted
Stock the Company may require Executive Officer to represent and
agree with the Company in writing that he or she is acquiring the
shares without a view to distribution thereof. The certificates
for such shares may include any legend which the Company deems
appropriate to reflect any restriction on
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transfer. Furthermore, all certificates for shares of Stock
delivered under this Supplement shall be subject to such stop-
transfer orders and other restrictions as the Company 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 as any applicable Federal or
state securities law, and the Company may cause a legend or
legends to be put on any such certificates to make appropriate
reference to such restrictions.
G. Contract of Employment. Nothing contained herein shall
be construed to constitute a contract of employment between the
Company or an Affiliate and Executive Officer. Nothing contained
herein will confer upon Executive Officer 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 Executive Officer without regard to the
existence of this Supplement.
H. Headings. The headings of Articles are included solely
for convenience of reference, and if there is any conflict
between such headings and the text of this Supplement, the text
shall control.
I. Invalidity of Certain Provisions. If any provision of
this Supplement shall be held invalid or unenforceable, such
invalidity or unenforceability shall not affect any other
provisions hereof, and this Supplement shall be construed and
enforced as if such provisions, to the extent invalid or
unenforceable, had not been included.
J. Law Governing. This Supplement shall be construed and
enforced according to the laws of the State of Connecticut (other
than its laws respecting choice of law).
K. 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 this Supplement 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 this Supplement. The
Company shall not be responsible for any act or failure to act of
any agent appointed to administer this Supplement.
L. 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.
Portion of Management Incentive Plan
Compensation to be delivered in Restricted Stock $------------
Date: October ____, 1996
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EXECUTIVE OFFICER
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(Signature)
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(Print Executive Officer's Name)
THE ADVEST GROUP, INC.
By:
Xxxxx Xxxxxxxxx
Chief Executive Officer
