EXHIBIT 3
AMENDMENT
TO SHAREHOLDER RIGHTS AGREEMENT
This Amendment is made as of August 23, 2000 between THE ADVEST GROUP,
INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER &
TRUST COMPANY, a New York corporation, as successor Rights Agent (the "Rights
Agent"), to the Shareholder Rights Agreement, dated as of October 31, 1988, as
amended (the "Agreement"), between the Company and The Connecticut Bank and
Trust Company, N.A., the original Rights Agent.
Pursuant to Section 26 of the Agreement, the Company and the Rights
Agent, as directed by the Company, hereby agree to amend the Agreement as
follows:
1. Section 1(a) of the Agreement is hereby amended to read in its entirety
as follows:
1(a) "ACQUIRING PERSON" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as such term is
hereinafter defined) and Associates (as such term is hereinafter defined) of
such Person, shall be the Beneficial Owner (as such term is hereinafter defined)
of 20% or more of the shares of Common Stock then outstanding, but shall not
include (i) the Company, (ii) any Subsidiary of the Company (as such term is
hereinafter defined), (iii) any employee benefit plan of the Company or any
Subsidiary of the Company (as such term is hereinafter defined), (iv) any entity
or Person holding shares of Common Stock organized, appointed or established by
the Company or any Subsidiary for or pursuant to the terms of any such plan, or
(v) The MONY Group, Inc. and its Affiliates and Associates. The Persons
described in Clauses (i) through (v) above are referred to herein as "Exempt
Persons." Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as the result of (1) an acquisition of shares of Common Stock pursuant
to a tender offer or an exchange offer for all outstanding shares of Common
Stock at a price and on terms determined by at least a majority of the entire
Board of Directors of the Company to be in the best interests of the Company and
its stockholders or (2) an acquisition of Common Stock by the Company which, by
reducing the number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to 20% or more of the Common Stock of
the Company then outstanding; PROVIDED, HOWEVER, that if a Person shall become
the Beneficial Owner of 20% or more of the Common Stock of the Company then
outstanding by reason of share Options by the Company and shall, after such
share Options by the Company, become the Beneficial Owner of any additional
shares of Common Stock of the Company, then such Person shall be deemed to be an
"Acquiring Person." Notwithstanding anything to the contrary in this Agreement,
neither The MONY Group, Inc. nor any Affiliate or Associate of The MONY Group,
Inc. (including without limitation an acquisition subsidiary), nor any of their
assignees or transferees shall become or be deemed to be an "Acquiring Person"
or be declared or determined by the Board of Directors of the Company pursuant
to Section 11(a)(ii)(B) hereof to be an Adverse Person (as such term is
hereinafter defined) by virtue of (1) the execution and delivery of a Merger
Agreement (as such term is hereinafter defined) or the public announcement of
such execution and delivery, (2) the consummation of a Merger (as such term is
hereinafter defined) or the other transactions contemplated in a Merger
Agreement, (3) the execution and delivery of any Option Agreement
(as such term is hereinafter defined) or the public announcement of such
execution and delivery, (4) the consummation of the transactions contemplated in
any Option Agreement, (5) the execution and delivery of any Support Agreement
(as such term is hereinafter defined) or the public announcement of such
execution and delivery, or (6) the consummation of the transactions contemplated
in any Support Agreement.
2. Section 1(d) of the Agreement is hereby amended to read in its entirety
as follows:
1(d) A Person shall be deemed the "BENEFICIAL OWNER" of, and shall be
deemed to "BENEFICIALLY OWN," any securities:
(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, beneficially owns (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the
Exchange Act, as in effect on the date of this Agreement) or has the
right to dispose of;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has
(A) the right to acquire (whether such right is exercisable
immediately or after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange
rights, rights (other than these Rights), warrants or options, or
otherwise; PROVIDED, HOWEVER, that a Person shall not be deemed
the "Beneficial Owner" of, or to "beneficially own," (1)
securities tendered pursuant to a tender or exchange offer made by
such Person or any of such Person's Affiliates or Associates until
such tendered securities are accepted for purchase or exchange;
(2) securities issuable upon exercise of Rights at any time prior
to the occurrence of a Triggering Event; or (3) securities
issuable upon exercise of Rights from and after the occurrence of
a Triggering Event, which Rights were acquired by such Person or
any of such Person's Affiliates or Associates prior to the
Distribution Date or pursuant to Sections 3(a), 11(i) or 22
hereof; or
(B) the right to vote pursuant to any agreement,
arrangement or understanding (whether or not in writing);
PROVIDED, HOWEVER, that a Person shall not be deed the "Beneficial
Owner" of, or to "beneficially own," any security under this
clause (B) if the agreement, arrangement or understanding to vote
such security (1) arises solely from a revocable proxy given in
response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations
of the Exchange Act and (2) is not also then reportable by such
person on Schedule 13D under the Exchange Act (or any comparable
or successor report); or
(iii) which are beneficially owned , directly or indirectly, by
any other Person (or any Affiliate or Associate thereof) with which such
Person or any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding, whether or not in writing), for
the purpose of acquiring, holding, voting (except pursuant to a revocable
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proxy as described in clause (B) of Section 1(c)(ii) hereof) or disposing
of any securities of the Company;
PROVIDED, HOWEVER, that (1) no Person engaged in business as an underwriter of
securities shall be deemed the Beneficial Owner of any securities acquired
through such Person's participation as an underwriter in good faith in a firm
commitment underwriting until the expiration of 40 days after the date of such
acquisition, (2) no Person who is a director or an officer of the Company shall
be deemed, solely as a result of his or her position as director or officer of
the Company, the Beneficial Owner of any securities of the Company that are
beneficially owned by any other director or officer of the Company, and (3)
notwithstanding anything to the contrary in this Agreement, neither The MONY
Group, Inc. nor any Affiliate or Associate of The MONY Group, Inc. (including
without limitation an acquisition subsidiary), nor any of their assignees or
transferees shall become or be deemed the Beneficial Owner of any securities of
the Company by virtue of (1) the execution and delivery of a Merger Agreement
(as such term is hereinafter defined) or the public announcement of such
execution and delivery, (2) the consummation of a Merger (as such term is
hereinafter defined) or the other transactions contemplated in a Merger
Agreement, (3) the execution and delivery of any Option Agreement (as such term
is hereinafter defined) or the public announcement of such execution and
delivery, (4) the consummation of the transactions contemplated in any Option
Agreement, (5) the execution and delivery of any Support Agreement (as such term
is hereinafter defined) or the public announcement of such execution and
delivery, or (6) the consummation of the transactions contemplated in any
Support Agreement.
3. Section 1 of the Agreement is hereby amended by adding new subsections
(u), (v), (w) and (x) which shall read as follows:
(u) "MERGER" shall mean a merger, consolidation, share exchange, business
combination, recapitalization, or similar transaction involving the Company and
The MONY Group, Inc. or any of its Affiliates or Associates.
(v) "MERGER AGREEMENT" shall mean an agreement and plan of merger or
other form of acquisition agreement to which the Company and The MONY Group,
Inc. or any of its Affiliates or Associates are parties, as such may be amended
or supplemented from time to time.
(w) "OPTION AGREEMENT" shall mean any option or similar agreement
pursuant to which The MONY Group, Inc. or any of its Affiliates or Associates
has or acquires the right to acquire shares of Common Stock.
(x) "SUPPORT AGREEMENT" shall mean any support agreement entered into
between stockholders of the Company and The MONY Group, Inc. or any of its
Affiliates or Associates providing for certain voting and other restrictions
with respect to shares of Common Stock which such stockholders beneficially own,
in connection with a Merger Agreement and a Merger.
4. Section 3(a) of the Agreement is hereby amended to read in its entirety
as follows:
3(a) Until the earlier of (i) the close of business on the tenth day
after the Stock Acquisition Date, (ii) the close of business on the tenth
Business Day after the date of the
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commencement, by any Person, other than an Exempt Person, of a tender or
exchange offer if, upon consummation thereof, such Person would be an Acquiring
Person or (iii) upon determination by the Board of Directors of the Company,
pursuant to the criteria set forth in Section 11(a)(ii)(B) hereof, that a Person
is an Adverse Person (including any such date which is after the date of this
Agreement and prior to the issuance of the Rights) (the earliest of such dates
being herein referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of Section 3(b) hereof) by certificates for
the Common Stock registered in the names of the holders of the Common Stock
(which certificates for Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the underlying shares of
Common Stock. Notwithstanding anything to the contrary in this Section 3(a), a
Distribution Date shall not occur as a result of (1) the execution and delivery
of a Merger Agreement or the public announcement of such execution and delivery,
(2) the consummation of a Merger or the other transactions contemplated in a
Merger Agreement, (3) the execution and delivery of any Option Agreement or the
public announcement of such execution and delivery, (4) the consummation of the
transactions contemplated in any Option Agreement, (5) the execution and
delivery of any Support Agreement or the public announcement of such execution
and delivery, or (6) the consummation of the transactions contemplated in any
Support Agreement. As soon as practicable after the Company has notified the
Rights Agent of the occurrence of the Distribution Date, the Rights Agent will
send, by first-class, insured, postage prepaid mail, to each record holder of
the Common Stock as of the close of business on the Distribution Date, at the
address of such holder shown on the records of the Company, one or more
certificates, in substantially the form of Exhibit A hereto (the "Right
Certificates"), evidencing one Right for each share of Common Stock so held. As
of and after the close of business on the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates.
5. Section 7(a) of the Agreement is amended to read in its entirety as
follows:
7(a) Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to Option and
the certificate on the reverse side thereof duly executed, to the Rights Agent
at the office or offices of the Rights Agent designated for such purpose,
together with payment of the aggregate Exercise Price for the total number of
shares of Common Stock (or other securities, cash or other assets, as the case
may be) as to which such surrendered Rights are then exercised, at or prior to
the earlier of (i) the close of business on October 31, 2008 (the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed as provided in
Section 23 hereof, or (iii) the consummation of a Merger (the earliest of (i),
(ii) or (iii) being herein referred to as the "Expiration Date"). Except as set
forth in Section 7(e) hereof and notwithstanding any other provision of this
Agreement, any Person who prior to the Distribution Date becomes a record holder
of shares of Common Stock may exercise all of the rights of a registered holder
of a Right Certificate with respect to the Rights associated with such shares of
Common Stock in accordance with the provisions of this Agreement, as of the date
such Person becomes a record holder of shares of Common Stock.
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In Witness Whereof, the parties hereto have caused this Amendment to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
[Corporate Seal] THE ADVEST GROUP, INC.
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Title: Senior Vice President
Assistant General Counsel
[Corporate Seal] AMERICAN STOCK TRANSFER COMPANY
ATTEST:
By: /s/ X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: X. Xxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President Title: Vice President
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