Exhibit 10(i)
EXECUTIVE OFFICER
1998 RESTRICTED STOCK AND
STOCK OPTION AGREEMENT
Percentage of All Income
(minimum of 2.5% of Compensation,
maximum of 7.5% of Compensation): -------
Percentage of Bonus: -------
Effective Date: January 1, 1998
This Executive Officer Restricted Stock and Stock Option Agreement (the
"Agreement") is entered into as of the above date, by the undersigned
executive officer ("Executive Officer") and The Advest Group, Inc. (the
"Company").
ARTICLE I Election to Participate and Amount Deferred. Executive
Officer hereby elects to receive the percentage set forth above of his or her
Compensation and/or Bonus (the "Deferred Amount") in the form of Units. A
Unit consists of one share of common stock of the Company subject to the
restrictions set forth below (the "Restricted Stock") and one non-qualified
stock option to purchase shares of common stock of the Company which is not
an incentive stock option under Section 422 of the Internal Revenue Code of
1986 (an "Option"). For purposes of this Agreement, Compensation shall mean
the amount of earnings due to Executive Officer for the Deferral Period, and
shall include amounts contributed to the Company's 401(k) plan, Deferred
Compensation Savings and Investment Plan, Key Professionals Equity Plan, or
any successor plan(s). Deferral Period shall mean the period beginning on
January 1, 1998 and ending on the earliest of: (a) the termination of
Executive Officer's employment with the Company or an affiliate of the
Company (an "Affiliate"), (b) the termination of this Agreement in accordance
with Article IV(D), or (c) December 31, 1998.
Executive Officer xxxxxx authorizes the Company to withhold from his or
her paycheck, draw, bonus and/or commission the Deferred Amount. Amounts
Deferred hereunder (other than amounts deferred out of bonus) shall be
withheld from Executive Officer's paycheck in periodic installments. The
Company may, but shall not be obligated to, invest any Amount Deferred in
insured bank deposit accounts or other money-market investments pending
investment under this Agreement. 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 to
be held as Restricted Stock for Executive Officer.
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All purchases of Stock to be delivered under this Agreement shall be from the
unallocated treasury stock of the Company. Fractional units may be acquired
by Executive Officer, provided that the Company may establish procedures to
eliminate any fractional holdings of Units held on behalf of Executive
Officer as of December 31, 1998.
ARTICLE II Restricted Stock Agreement. Executive Officer hereby
authorizes 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 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 Restricted
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 Affiliate by which
Executive Officer is employed, voluntary termination of employment
more than nine months after a Change of Control, or involuntary
termination of
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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 Agreement, 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.
(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 Agreement,
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 or Options to which Executive Officer shall be entitled
upon Executive Officer's death in accordance with the terms of this
Agreement. If more than one Beneficiary shall be designated, the
Beneficiaries shall share equally in any rights or interests of
Executive Officer under this Agreement. 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 and
Options 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
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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 III Stock Option Agreement. Executive Officer will be entitled
to an Option to purchase one share of stock for each share of Restricted
Stock acquired for Executive Officer pursuant to Article I. The Options to
which Executive Officer is entitled will be issued under The Advest Group,
Inc. 1993 Stock Option Plan on the last date on which Stock is acquired for
the Executive Officer pursuant to Article I 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. The Options are
not transferable by Executive Officer other than by will or the laws of
descent and distribution, and during the lifetime of Executive Officer the
Options may be exercised only by Executive Officer.
A. Exercise of Options. Options acquired hereunder will vest and
become exercisable on January 1, 2003 (unless earlier forfeited or
terminated) and will remain exercisable for a period of twenty-four months,
until December 31, 2005. 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 Company 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 Company 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.
B. 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 or an Affiliate, except
that:
(1) Upon Executive Officer's death, Permanent Disability, or
Retirement with the written consent of the President or the
Chief Executive Officer of the Company or the Affiliate by
which Executive Officer is employed, the Options shall
immediately vest and
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shall be exercisable by Executive Officer or Executive Officer's
designated Beneficiary, as the case may be, for a period of three
months after Executive Officer's termination of employment.
(2) If Executive Officer's employment is involuntarily terminated
(other than a termination for Cause), the Company shall give Executive
Officer at least one day's advance notice prior to the date of
termination, and the Options shall immediately vest and shall be
exercisable by Executive Officer upon receipt of such notice, and shall
expire on the date of termination. If Executive Officer voluntarily
terminates employment more than nine months after a Change of Control,
then the Options shall immediately vest and shall be exercisable by
Executive Officer upon the later of a receipt by the Company of
notification by Executive Officer of the termination or the tenth day
prior to the termination, and shall expire upon the date of termination.
(3) Upon Executive Officer's termination of employment (other than
as set forth in subparagraphs (1) or (2) of this Article III(B)),
Executive Officer shall forfeit Executive Officer's unvested Options.
(4) If Executive Officer 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 subparagraph (3) of
this Article III(B).
ARTICLE IV Miscellaneous.
A. Change of Election. Following an election by Executive Officer to
have an Amount Deferred, he or she 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 him or her during subsequent calendar quarters
of the Deferral Period. Such election shall be made on such form as the
Company may prescribe and shall become effective as of the first day of the
calendar quarter following receipt of such form by the Company.
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, 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 Executive Officer,such adjustment shall be made by the
Company and shall be conclusive and binding for all purposes
hereunder. In no event shall the excess of the aggregate fair
marketvalue of the Stock subject to the Options immediately
after any subsitution, 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
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of such Stock nor shall the adjusted Option give the holder thereof any
additional benefits he did not have under the old Option.
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 exercise of an Option or 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 Agreement 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 Units acquired prior
to the date of the amendment.
The continuation of this Agreement is not assumed as a contractual
obligation of the Company and the right is reserved by the Company at any
time to discontinue this Agreement. This Agreement 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.
X. Xxxxxx. Any successor corporation to the Company, by merger,
consolidation, purchase or otherwise, shall be substituted hereunder for
the Company. This Agreement shall be binding on all successors to and
assigns of the Company; provided that such successors or assigns may
terminate this Agreement in accordance with the provisions hereof.
F. Securities Laws. Regarding the purchasing of shares pursuant to
an Option or shares 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 transfer. Furthermore,
all certificates for shares of Stock delivered under this Agreement shall
be subject to such stock-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.
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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 Agreement.
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 Agreement, the text shall control.
I. Invalidity of Certain Provisions. If any provision of this
Agreement shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions hereof, and this
Agreement shall be construed and enforced as if such provisions, to the
extent invalid or unenforceable, had not been included.
J. Law Governing. This Agreement 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
Agreement 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 Agreement. The Company shall
not be responsible for any act or failure to act of any agent appointed to
administer this Agreement.
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.
EXECUTIVE OFFICER
-----------------
(Signature)
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(Print Executive Officer's Name)
THE ADVEST GROUP, INC.
By:-------------------
Xxxxx Xxxxxxxxx
Chief Executive Officer
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