-28-
Exhibit 4.5
EXECUTIVE OFFICER
1997 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, 1997
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 IV. 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 or
Deferred Compensation Savings and Investment Plan, or any
successor plan(s). Deferral Period shall mean the period
beginning on January 1, 1997 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, 1997.
Executive Officer ▇▇▇▇▇▇ 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
-29-
on the day the Restricted Stock is purchased to be held as
Restricted Stock for Executive Officer. 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, 1997.
ARTICLE V. 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, 2001 (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
-30-
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 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
-31-
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 VI 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, 2002 (unless earlier
forfeited or terminated) and will remain exercisable for a period
of twenty-four months, until December 31, 2004. 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
-32-
Company or the Affiliate by which Executive Officer is
employed, the Options shall immediately vest and 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 VII 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 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
-33-
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.
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.
▇. ▇▇▇▇▇▇. 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,
-34-
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 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)
--------------------------------
(Print Executive Officer's Name)
-35-
THE ADVEST GROUP, INC.
By: -----------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer