Exhibit 2
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WARRANT PURCHASE AGREEMENT
AMONG
GS MEZZANINE PARTNERS, L.P.,
GS MEZZANINE PARTNERS OFFSHORE, L.P.,
STONE STREET FUND 1997, L.P.,
BRIDGE STREET FUND 1997, L.P.,
AND
AXA FINANCIAL, INC.
DATED AS OF DECEMBER 2, 2003
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WARRANT PURCHASE AGREEMENT
WARRANT PURCHASE AGREEMENT, dated as of December 2, 2003, among GS
Mezzanine Partners, L.P., a Delaware limited partnership, GS Mezzanine Partners
Offshore, L.P., a Cayman Islands exempted limited partnership, Stone Street Fund
1997, L.P., a Delaware limited partnership and Bridge Street Fund 1997, L.P., a
Delaware limited partnership (each, a "Seller" and collectively, the "Sellers")
and AXA Financial, Inc., a Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, The Mutual Life Insurance Company of New York, MONY Financial
Services Corporation (now known as The MONY Group, Inc.) (the "Company") and the
Sellers entered into an Investment Agreement dated December 30, 1997 (the
"Investment Agreement") pursuant to which the Sellers purchased from the Company
certain Warrants (the "Warrants") to purchase shares of common stock, par value
$.01 per share, of the Company (the "Common Stock"); and
WHEREAS, the Sellers desire to sell and transfer to the Purchaser, and
the Purchaser desires to purchase from the Sellers, certain Warrants.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
herein set forth, the parties hereto agree as follows:
ARTICLE I
Purchase and Sale of the WARRANTS
1.1 Purchase and Sale of the Warrants. Upon the terms and subject to
the conditions set forth in this Agreement and on the basis of the
representations, warranties, covenants, agreements, undertakings and obligations
contained herein, at the Closing the Purchaser agrees to purchase from the
Sellers, and the Sellers agree to sell to the Purchaser, Warrants to purchase
2,228,574 shares of Common Stock (to be allocated among the Sellers as set forth
on Annex A hereto).
1.2 Purchase Price. The purchase price for the Warrants (the "Purchase
Price") shall consist of $16,268,590.20 in the aggregate, to be allocated among
the Sellers as set forth on Annex A hereto and payable at the Closing.
1.3 Closing. The closing of the sale and purchase of the Warrants
contemplated hereby (the "Closing") shall take place at the offices of Xxxxxxxx
& Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on December 2, 2003
(the "Closing Date").
1.4 Deliveries by the Sellers to the Purchaser. On the Closing Date,
the Sellers shall deliver, or cause to be delivered, to the Purchaser the
following:
(a) a certificate representing the Warrants to be sold hereby free and
clear of all Liens, duly recorded in the records of the Company; and
(b) such other closing documents as the Sellers and the Purchaser
reasonably agree.
1.5 Deliveries by the Purchaser to the Sellers. On the Closing Date,
the Purchaser shall deliver or cause to be delivered to the Sellers or their
designees the following:
(a) the Purchase Price by wire transfer of immediately available funds
to an account or accounts designated by Sellers or their designees at least two
(2) Business Days in advance of the Closing Date; and
(b) such other closing documents as the Sellers and the Purchaser
reasonably agree.
ARTICLE II
Representations and Warranties
2.1 Representations and Warranties of the Sellers. Each Seller
represents and warrants to, and agrees with, the Purchaser as follows:
(a) Organization and Authority of the Sellers. Such Seller is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, with the full power and authority to own,
lease or otherwise hold the properties and assets it purports to own (including,
without limitation, the Warrants) and to carry on its business as currently
conducted. Such Seller has the full legal right, requisite power and authority
and has taken all action necessary to execute, deliver and perform fully its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance by such Seller of this Agreement
and the transactions contemplated hereby have been duly authorized by all
necessary action on the part of such Seller (including any necessary action by
its partners) and no other proceeding on the part of such Seller is necessary to
authorize this Agreement. This Agreement has been duly executed and delivered by
such Seller and constitutes, and upon the execution and delivery by the other
parties hereto, this Agreement shall constitute, a valid and legally binding
agreement of such Seller enforceable against it in accordance with its terms.
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(b) Title to Warrants. Such Seller has good and valid title to its
Warrants free and clear of all Liens, and upon the delivery of and payment for
the Warrants at the Closing as provided for in this Agreement, Purchaser will
acquire good and valid title to all of the Warrants so purchased, free and clear
of any Liens, other than any Lien created by Purchaser.
(c) Exercise of Warrants. Upon exercise of the Warrants, Purchaser will
acquire good and valid title to the shares of Common Stock that may be purchased
upon exercise of such Warrants, free and clear of any Liens, other than any Lien
created by the Purchaser. The shares of Common Stock so purchased upon the
exercise of the Warrants will not be subject to any restrictions on transfer or
voting thereof under the Investment Agreement or the NYID Letter. If the
Warrants were to be exercised as of the date hereof, the exercise price pursuant
to the terms of the Warrants for each share of Common Stock so purchased would
be U.S. $23.50.
(d) Non-Contravention. The execution and delivery of this Agreement by
such Seller and the performance and consummation of the transactions
contemplated hereby will not, directly or indirectly (with or without giving of
notice or the lapse of time or both): (i) contravene, conflict with or
constitute or result in a breach or violation of, or a default under any
provision of the certificate of limited partnership or limited partnership
agreement of such Seller; (ii) violate or conflict with any Applicable Law or
any Order applicable to such Seller, or give any Governmental Authority or any
other Person the right to challenge any of the transactions contemplated hereby
or the exercise of the Warrants by Purchaser or to exercise any remedy or obtain
any relief under, any Applicable Law or Order to which such Seller is subject;
(iii) result in a breach of or constitute a default or give rise to any right of
termination, amendment, cancellation or acceleration of any right under any
contract, agreement or other obligation to which such Seller is bound or its
assets are subject, or give rise to any Lien on the Warrants to be purchased and
sold hereunder, except, in the case of clause (iii), to the extent that any such
breach, default, right or Lien would not reasonably be expected, individually or
in the aggregate, to have a material adverse effect on the ability of such
Seller to timely perform its obligations under this Agreement or to consummate
the transactions contemplated hereby, and assuming, for purposes of clauses (ii)
and (iii), the accuracy of the Purchaser's representations and warranties set
forth in Sections 2.2(b) and 2.2(c).
(e) Consents and Approvals, etc. Assuming the accuracy of the
Purchaser's representations and warrants set forth in Section 2.2(c), there are
no Permits or expiration of any applicable waiting periods related thereto of
any Governmental Authority, or any consents, approvals or authorizations of any
other Person, which are required to be obtained or given with respect to any
Seller in connection with the execution or delivery by such Seller of this
Agreement, the performance of its obligations hereunder or the consummation of
the transactions contemplated hereby. The Sellers have duly obtained the written
consent of the Company pursuant to Section 6.4 of the Investment Agreement to
the transfer of the Warrants contemplated hereunder.
2.2 Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to, and agrees with, the Sellers as follows:
(a) Organization and Authority of the Purchaser. The Purchaser is duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its
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incorporation, with the full power and authority to own, lease or otherwise hold
the properties and assets it purports to own and to carry on its business as
currently conducted. The Purchaser has the full legal right, requisite corporate
power and authority and has taken all corporate action necessary to execute,
deliver and perform fully its obligations under this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery and performance by
the Purchaser of this Agreement and the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of the
Purchaser (including any necessary stockholder action) and no other corporate
proceeding on the part of the Purchaser is necessary to authorize this
Agreement. This Agreement has been duly executed and delivered by the Purchaser
and constitutes, and upon the execution and delivery by the other parties
hereto, this Agreement shall constitute, a valid and legally binding agreement
of the Purchaser enforceable against the Purchaser in accordance with its terms.
(b) Non-Contravention. The execution and delivery of this Agreement by
the Purchaser and the performance and consummation of the transactions
contemplated hereby will not, directly or indirectly (with or without giving of
notice or the lapse of time or both) (i) contravene, conflict with or constitute
or result in a breach or violation of, or a default under any provision of the
articles of incorporation or by-laws of the Purchaser or any resolution adopted
by the Board of Directors of the Purchaser, (ii) violate or conflict with any
Applicable Law or any Order applicable to the Purchaser, or give any
Governmental Authority or any other Person the right to challenge any of the
transactions contemplated hereby or to exercise any remedy or obtain any relief
under any Applicable Law or Order to which the Purchaser is subject; or (iii)
result in a breach of or constitute a default or give rise to any right of
termination, amendment, cancellation or acceleration of any right under any
contract, agreement or other obligation to which the Purchaser is bound or its
assets are subject, except, in the case of clause (iii), to the extent that any
such breach, default, right or Lien would not reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the
ability of the Purchaser to timely perform its obligations under this Agreement
or to consummate the transactions contemplated hereby assuming, for clauses (ii)
and (iii), the accuracy of the Sellers' representations and warranties set forth
in Section 2.1(d).
(c) Consents and Approvals. Assuming the accuracy of the Sellers
representations and warranties set forth in Section 2.1(e), there are no Permits
or expiration of any applicable waiting periods related thereto of any
Governmental Authority, or any consents, approvals or authorizations of any
other Person which are required to be obtained or given with respect to the
Purchaser in connection with the execution or delivery by the Purchaser of this
Agreement, the performance of its obligations hereunder or the consummation of
the transactions contemplated hereby.
(d) Securities Act of 1933. The Purchaser has sufficient knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of its purchase of the Warrants and is capable of bearing
the economic risks thereof. The Purchaser is acquiring the Warrants for its own
account, for the purpose of investment only and not with a view to, or for sale
in connection with, any distribution thereof or of Common Stock issuable upon
exercise thereof in violation of the registration requirements of the Securities
Act of 1933, as amended.
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ARTICLE III
Additional Agreements of the Parties
3.1 Announcements. The Purchaser and the Sellers have agreed with each
other as to the form, timing and substance of the press release related to the
execution of this Agreement (a copy of which is attached hereto as Exhibit A),
and shall consult each other as to the form, timing and substance of any other
public disclosures related hereto, provided, however, that nothing contained
herein shall prohibit either party, following notification to the other party if
practicable, from making any disclosure which its counsel determines to be
required by any Applicable Law or the applicable rules of any stock exchange.
3.2 Further Assurances. At any time and from time to time after the
date hereof, the parties agree to cooperate with each other, and use all
reasonable efforts to execute and deliver such other documents, instruments of
transfer or assignment and records and do all such further acts and things as
may be necessary or desirable to carry out and give effect to the transactions
contemplated hereunder.
3.3 Expenses. Regardless of whether any or all of the transactions
contemplated by this Agreement are consummated, and except as otherwise
expressly provided herein, the Purchaser and the Sellers shall each bear their
respective direct and indirect expenses incurred in connection with the
negotiation and preparation of this Agreement and the consummation of the
transactions contemplated hereby, provided, however, that Sellers shall be
responsible to pay directly, or to reimburse the Purchaser for, any payments
required to be made to the Company in connection with the transfer, surrender,
exchange or assignment of Warrants pursuant to or in connection with this
Agreement and all taxes imposed by Applicable Law in connection with the
transfer, surrender, exchange or assignment of the Warrants.
ARTICLE IV
Miscellaneous
4.1 Governing Law. This Agreement shall be deemed to be made in and in
all respects shall be governed by and interpreted, construed and enforced in
accordance with the law of the State of New York without regard to principles of
conflicts of laws that would require application of the law of a jurisdiction
other than the State of New York.
4.2 Submission to Jurisdiction; Waiver of Jury Trial. Each party
submits to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York sitting in the City of New York, the Borough
of Manhattan, for purposes of any legal proceeding arising out of or relating to
this Agreement; provided that, if such court refuses to so accept or exercise
jurisdiction, the Parties shall submit to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in the City of New York, the
Borough of Manhattan. Each party irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum. Each party hereby consents to process being served in any action with
respect to this Agreement, or any document delivered pursuant hereto, by the
means specified in Section 4.3 to its respective address specified at the time
for notices under this Agreement or to
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any other address of which it shall have given written notice to the other
party. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY WITH
RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
EACH PARTY HEREBY ACKNOWLEDGES THAT SUCH WAIVER IS MADE WITH FULL UNDERSTANDING
AND KNOWLEDGE OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY.
4.3 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of (a) in the case of personal delivery, when actually delivered, (b)
in the case of delivery by prepaid overnight courier with guaranteed next day
delivery, the day designated for delivery by such courier, (c) in the case of
delivery by registered or certified mail, postage prepaid, return receipt
requested, five (5) days after deposit in the mails, or (d) in the case of
transmittal by telecopy (confirmed via delivery by personal delivery or prepaid
overnight courier with guaranteed next day delivery), upon receipt by the sender
of a printed confirmation of transmittal; provided that notices after the giving
of which there is a designated period within which to perform an act and notices
of changes of address shall be effective only upon receipt. All such notices and
communications shall be delivered to the following addresses or telecopier
numbers (or at such other address or telecopier number for a Person as shall be
specified by like notice):
(a) if to the Sellers, addressed to:
Xxxxxxx Sachs & Co.
General Counsel - Principal
Investment Area
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx X. XxXxXxxxx, Esq.
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
(b) if to the Purchaser, addressed to:
Xxxxxxx X. Silver, Esq.
AXA Financial, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
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with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
U.S.A.
Telecopy: (000) 000-0000
or at such other place or places or to such other Person or Persons as shall be
designated in writing by and to the parties to this Agreement in the manner
herein provided.
4.4 Interpretation. When a reference is made in this Agreement to a
Section or Annex, such reference shall be to a Section of, or an Annex to, this
Agreement unless otherwise indicated. Whenever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be followed
by the words "without limitation". Whenever the singular is used herein, the
same shall include the plural, and whenever the plural is used herein, the same
shall include the singular, where appropriate.
4.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. Each counterpart may be
delivered by facsimile transmission, which transmission shall be deemed delivery
of an originally executed document.
4.6 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. No party hereto may assign this Agreement or any of its rights,
interests or obligations hereunder without the prior written approval of the
other, which approval shall not be unreasonably delayed or withheld, provided,
however, that Purchaser may, without the prior written approval of the Sellers,
assign this Agreement to any Affiliate of Purchaser.
4.7 Miscellaneous.
(a) This Agreement: (i) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties, with respect to the subject matter hereof, and (ii) is not intended to
confer upon any other Persons any rights or remedies hereunder.
(b) Whenever possible, each provision or portion of any provision of
this Agreement will be interpreted in such manner as to be effective and valid
under Applicable Law, but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any Applicable Law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any provision
in such jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
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(c) This Agreement may be amended only by a written instrument signed
by each of the parties. Waiver of any term or condition of this Agreement shall
only be effective if in writing and shall not be construed as a waiver of any
subsequent breach or waiver of the same term or condition, or a waiver of any
other term or condition of this Agreement.
(d) No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any right, power or privilege, nor any single or
partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
4.8 Certain Definitions.
(a) For purposes of this Agreement, the following terms have the
meanings set forth below:
(i) "Affiliate" means, with respect to any Person, at the time in
question, any other Person controlling, controlled by or under common control
with such Person. For purposes of the foregoing, "control," including the terms
"controlling," "controlled by" and "under common control with," means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of voting
securities, by Contract or otherwise.
(ii) "Applicable Law" means any federal, state, local or other statute,
law, ordinance, rule, regulation, order, writ, injunction, judgment, consent
order or decree applicable to a Person or such Person's properties, assets,
business or operations.
(iii) "Contract" means any mortgages, indentures, debentures, notes,
loans, bonds, agreements, contracts, leases, subleases, licenses, franchises,
obligations, instruments, promises, understandings or other legally binding
commitments, arrangements or undertakings of any kind whether oral or written
and whether express or implied to which any Seller is a party or by which any of
their respective assets owned or used may be bound or affected.
(iv) "Governmental Authority" means any foreign, federal, state, local,
municipal, court or other governmental, quasi-governmental, administrative or
regulatory authority, body, agency, court, tribunal, commission, other similar
entity (including any non-governmental securities or insurance regulatory
agency) or any branch, department or official thereof.
(v) "Lien" means any charges, claims, conditional sale or other title
retention agreements, covenants, easements, encumbrances, exceptions, liens,
mortgages, options, pledges, reservations, rights of first refusal, security
interests, servitudes, statutory liens, warrants, or restrictions of any kind,
including restrictions on use, voting, transfer, alienation, receipt of income,
or exercise of any other attribute of ownership, other than, with respect to the
Warrants, restrictions on transfer pursuant to the NYID Letter and applicable
insurance and securities law.
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(vi) "NYID Letter" means the letter dated December 29, 1997 from the
New York Insurance Department regarding a determination by the New York
Insurance Department of non-control by the Sellers with respect to the Company
and setting forth certain conditions pertaining thereto and related matters.
(vii) "Order" means any award, decision, injunction, judgment, decree,
settlement, order, process, ruling, subpoena or verdict (whether temporary,
preliminary or permanent) entered, issued, made or rendered by any court,
administrative agency, arbitrator, Governmental Authority or other tribunal of
competent jurisdiction.
(viii) "Permits" means any franchises, certificates of authority,
waivers, licenses, permits, orders, consents, approvals, registrations,
authorizations, declarations, qualifications and filings issued, granted, given
or otherwise made available by or under, or made with, any Governmental
Authorities or pursuant to any Applicable Law.
(ix) "Person" means any individual, corporation, company, partnership
(limited or general), joint venture, limited liability company, association,
trust, or a Governmental Authority, or any other entity.
(b) For purposes of this Agreement, the following terms have the
meanings set forth in the sections noted below:
Closing Section 1.5
Closing Date Section 1.5
Company Recitals
Confidentiality Agreement Section 3.8(a)
Purchase Price Section 1.2
Purchaser Introductory
Paragraph
Sellers Introductory
Paragraph
Warrants Recitals
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
GS MEZZANINE PARTNERS, L.P.
BY: GS Mezzanine Advisors, L.L.C.
Its General Partner
BY: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President
GS MEZZANINE PARTNERS OFFSHORE, L.P.
BY: GS Mezzanine Advisors, L.L.C.
Its General Partner
BY: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXX XXXXXX XXXX 0000, X.X.
BY: Stone Street 1997, L.L.C.,
Its General Partner
BY: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXX XXXX 0000, X.X.
BY: Stone Street 1997, L.L.C.,
Its General Partner
BY: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President
AXA FINANCIAL, INC.
BY: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice Chairman of the Board
and Chief Financial Officer
ANNEX A
NUMBER OF SHARES OF COMMON
STOCK CURRENTLY ISSUABLE UPON ALLOCATION OF
SELLER EXERCISE OF WARRANTS TO BE SOLD PURCHASE PRICE
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GS Mezzanine Partners, L.P. 1,403,575 $10,246,099.57
GS Mezzanine Offshore
Partners, L.P. 753,684 $ 5,501,895.74
Xxxxx Xxxxxx Xxxx 0000, X.X. 48,002 $ 350,411.28
Xxxxxx Xxxxxx Xxxx 0000, X.X. 23,313 $ 170,183.61
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Aggregate 2,228,574 $16,268,590.20
