Exhibit 4.2
MONY Holdings, LLC
Floating Rate Insured Notes due January 21, 2017
Exchange and Registration Rights Agreement
April 30, 2002
Xxxxxxx, Xxxxx & Co.,
Credit Suisse First Boston Corporation,
Xxxxxxx Xxxxx Barney Inc.,
XX Xxxxxx Securities Inc.,
Advest, Inc.,
Fleet Securities, Inc.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
MONY Holdings, LLC, a Delaware limited liability company (the
"Company"), proposes to issue and sell to the Purchasers (as defined herein)
upon the terms set forth in the Purchase Agreement (as defined herein) $300
million principal amount of its Floating Rate Insured Notes due January 21, 2017
(the "Notes"). As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company and MONY Life Insurance Company, a New York
stock life insurance corporation ("MONY Life"), agree with the Purchasers for
the benefit of holders (as defined herein) from time to time of the Registrable
Notes (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
"Agreement" shall mean this Exchange and Registration Rights Agreement.
"Base Interest" shall mean the interest that would otherwise accrue on
the Notes under the terms thereof and the Indenture, without giving effect
to the provisions of this Agreement.
"Broker-dealer" shall mean any broker or dealer registered with the
Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Notes are initially
issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Notes that has
returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Notes" shall have the meaning assigned thereto in Section
2(a) hereof.
"Holder" shall mean each of the Purchasers and other persons who
acquire Registrable Notes from time to time (including any successors or
assigns), in each case for so long as such person owns any Registrable
Notes.
"Indenture" shall mean the Indenture, dated as of April 30, 2002, among
the Company, The MONY Group, Inc. (for the limited purposes set forth
therein), Ambac Assurance Corporation and Bank One Trust Company, N.A., as
Trustee, as the same shall be amended from time to time.
"Notes" shall mean, collectively, the Floating Rate Insured Notes due
January 21, 2017 of the Company to be issued and sold to the Purchasers,
and securities issued in exchange therefor or in lieu thereof pursuant to
the Indenture.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"Person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
April 24, 2002, between the Purchasers, the Company and MONY Life Insurance
Company relating to the Notes.
"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Notes" shall mean the Notes; provided, however, that a
Note shall cease to be a Registrable Note when (i) in the circumstances
contemplated by Section 2(a) hereof, the Note has been exchanged for an
Exchange Note in an Exchange Offer as contemplated
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in Section 2(a) hereof (provided that any Exchange Note that, pursuant to
the last two sentences of Section 2(a), is included in a prospectus for use
in connection with resales by broker-dealers shall be deemed to be a
Registrable Note with respect to Sections 5, 6 and 9 until resale of such
Registrable Note has been effected within the 180-day period referred to in
Section 2(a)); (ii) in the circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement registering such Note under the
Securities Act has been declared or becomes effective and such Note has
been sold or otherwise transferred by the holder thereof pursuant to and in
a manner contemplated by such effective Shelf Registration Statement; (iii)
such Note is sold pursuant to Rule 144 under circumstances in which any
legend borne by such Security relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed by the Company
or pursuant to the Indenture; (iv) such Security is eligible to be sold
pursuant to paragraph (k) of Rule 144; or (v) such Security shall cease to
be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Notes outside the ordinary course of such holder's business, (iii) a holder
who has arrangements or understandings with any person to participate in
the Exchange Offer for the purpose of distributing Exchange Notes and (iv)
a holder that is a broker-dealer, but only with respect to Exchange Notes
received by such broker-dealer pursuant to an Exchange Offer in exchange
for Registrable Notes acquired by the broker-dealer directly from the
Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of
this Agreement, and the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision.
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2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act, as soon as practicable, but no later than 90
days after the Closing Date, a registration statement relating to an offer
to exchange (such registration statement, the "Exchange Registration
Statement", and such offer, the "Exchange Offer") any and all of the Notes
for a like aggregate principal amount of debt securities issued by the
Company, which debt securities are substantially identical to the Notes
(and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which has
been qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the
Securities Act and do not contain provisions for the additional interest
contemplated in Section 2(c) below (such new debt securities hereinafter
called "Exchange Notes"). The Company and MONY Life agree to use their
reasonable best efforts to cause the Exchange Registration Statement to
become effective under the Securities Act as soon as practicable, but no
later than 180 days after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply
with all applicable tender offer rules and regulations under the Exchange
Act. The Company and MONY Life further agree to use their reasonable best
efforts to commence and complete the Exchange Offer promptly, but no later
than 45 days after such registration statement has become effective, hold
the Exchange Offer open for at least 30 days and exchange Exchange Notes
for all Registrable Notes that have been properly tendered and not
withdrawn on or prior to the expiration of the Exchange Offer. The Exchange
Offer will be deemed to have been "completed" only if the debt securities
received by holders (other than Restricted Holders) in the Exchange Offer
for Registrable Notes are, upon receipt, transferable by each such holder
without restriction under the Securities Act and the Exchange Act and
without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier to
occur of (i) the Company having exchanged the Exchange Notes for all
outstanding Registrable Notes pursuant to the Exchange Offer and (ii) the
Company having exchanged, pursuant to the Exchange Offer, Exchange Notes
for all Registrable Notes that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall be on a
date that is at least 30 days following the commencement of the Exchange
Offer. The Company and MONY Life agree (x) to include in the Exchange
Registration Statement a prospectus for use in any resales by any holder of
Exchange Notes that is a Broker-dealer (each, a "Broker-Dealer Holder") and
(y) to keep such Exchange Registration Statement effective for a period
(the "Resale Period") beginning when Exchange Notes are first issued in the
Exchange Offer and ending upon the earlier of (1) the expiration of the
180th day after the Exchange Offer has been completed or (2) such time as
such Broker-dealers no longer own any Registrable Notes. With respect to
such Exchange Registration Statement, such holders shall have the benefit
of the rights of indemnification and contribution set forth in Sections
6(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed,
existing Commission interpretations are changed such that the debt
securities received by holders (other than Restricted Holders) in the
Exchange Offer for Registrable Notes are not or would not be, upon receipt,
transferable by each such holder without restriction under the Securities
Act, (ii) the Exchange Offer has not been completed within 225 days
following the Closing Date or (iii) the Exchange Offer is not available to
any holder of the Notes (other than a Restricted Holder), the Company
shall, in lieu of (or, in the case of clause (iii), in addition to)
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conducting the Exchange Offer contemplated by Section 2(a), file under the
Securities Act as soon as practicable, but no later than 30 days after the
time such obligation to file arises, a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed
basis by the holders of, all of the Registrable Notes, pursuant to Rule 415
or any similar rule that may be adopted by the Commission (such filing, the
"Shelf Registration" and such registration statement, the "Shelf
Registration Statement"). The Company and MONY Life agree to use their
reasonable best efforts (x) to cause the Shelf Registration Statement to
become or be declared effective no later than 120 days after such Shelf
Registration Statement is filed and to keep such Shelf Registration
Statement continuously effective for a period ending on the earlier of (1)
the second anniversary of the Effective Time or (2) such time as there are
no longer any Registrable Notes outstanding, provided, however, that no
holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the prospectus forming a part
thereof for resales of Registrable Notes unless such holder is an Electing
Holder, and (y) after the Effective Time of the Shelf Registration
Statement, promptly upon the request of any holder of Registrable Notes
that is not then an Electing Holder, to take any action reasonably
necessary to enable such holder to use the prospectus forming a part
thereof for resales of Registrable Notes, including, without limitation,
any action necessary to identify such holder as a selling securityholder in
the Shelf Registration Statement, provided, however, that nothing in this
Clause (y) shall relieve any such holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in accordance
with Section 3(d)(iii) hereof. The Company and MONY Life further agree to
supplement or make amendments to the Shelf Registration Statement, as and
when required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement
or by the Securities Act or rules and regulations thereunder for shelf
registration, and the Company and MONY Life agree to furnish to each
Electing Holder copies of any such supplement or amendment prior to its
being used or promptly following its filing with the Commission.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the
date on which such registration statement is required to be filed pursuant
to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration
Statement or Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective
pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer
has not been completed within 60 days after the initial effective date of
the Exchange Registration Statement relating to the Exchange Offer (if the
Exchange Offer is then required to be made) or (iv) any Exchange
Registration Statement or Shelf Registration Statement required by Section
2(a) or 2(b) hereof is filed and declared effective but shall thereafter
either be withdrawn by the Company or shall become subject to an effective
stop order issued pursuant to Section 8(d) of the Securities Act suspending
the effectiveness of such registration statement (except as specifically
permitted herein) without being succeeded immediately by an additional
registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default" and each
period during which a Registration Default has occurred and is continuing,
a "Registration Default Period"), then, as liquidated damages for such
Registration Default ("Liquidated Damages"), subject to the provisions of
Section 9(b), in addition to the Base Interest, shall accrue at a per annum
rate of 0.25% for the first 90 days of the Registration Default Period and
at a per annum rate of 0.50% thereafter for the remaining portion of the
Registration Default Period.
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(d) The Company and MONY Life shall take all actions reasonably necessary
or advisable to be taken by it to ensure that the transactions contemplated
herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any time shall
be deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any
post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture under
the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment of a
new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's and MONY Life's obligations with
respect to the registration of Exchange Notes as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable
but no later than 90 days after the Closing Date, an Exchange
Registration Statement on any form which may be utilized by the Company
and which shall permit the Exchange Offer and resales of Exchange Notes
by Broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use its reasonable best efforts to
cause such Exchange Registration Statement to become effective as soon
as practicable thereafter, but no later than 180 days after the Closing
Date;
(ii) prepare and file with the Commission such amendments and
supplements to such Exchange Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the periods
and purposes contemplated in Section 2(a) hereof and as may be required
by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each Broker-dealer holding Exchange
Notes with such number of copies of the prospectus included therein (as
then amended or supplemented), in conformity in all material respects
with the requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder, as such
Broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange Notes;
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(iii) promptly notify each Broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such Exchange
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement or
the initiation or threatening of any proceedings for that purpose, (D)
if at any time the representations and warranties of the Company and
MONY Life contemplated by Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company or MONY Life of
any notification with respect to the suspension of the qualification of
the Exchange Notes for sale in any jurisdiction or, if known to the
Company or MONY Life, the initiation or threatening of any proceeding
for such purpose, (F) at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act, that
such Exchange Registration Statement, prospectus, prospectus amendment
or supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, or (G) of the happening of any event or the
existence of any fact prior to the end of the Resale Period that
requires the Company to make changes in the Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment in order that the Exchange Registration
Statement or the prospectus, prospectus amendment or supplement or
post-effective amendment do not contain an untrue statement of a
material fact nor omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
prospectus, prospectus amendment or supplement or post-effective
amendment, in light of the circumstances under which they were made)
not misleading;
(iv) in the event that the Company would be required, pursuant to
Section 3(c)(iii)(F) above, to notify any Broker-Dealer Holders holding
Exchange Notes, without delay prepare and furnish to each such holder a
reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of such Exchange Notes
during the Resale Period, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(v) use reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use best efforts to (A) register or qualify the Exchange
Notes under the securities laws or blue sky laws of such jurisdictions
as are contemplated by Section
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2(a) no later than the commencement of the Exchange Offer, (B) keep
such registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions until the expiration of the Resale Period
and (C) take any and all other actions as may be reasonably necessary
or advisable to enable each Broker-Dealer Holder to consummate the
disposition thereof in such jurisdictions; provided, however, that the
Company shall not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise
be required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction, (3) make any changes to its certificate of formation,
limited liability company agreement, certificate of incorporation, as
amended, or bylaws, as amended, or any agreement between it and its
stockholders or (4) become subject to taxation in any jurisdiction;
(vii) use reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Notes by Broker-Dealer Holders during the Resale Period;
(viii) provide a CUSIP number for all Exchange Notes, not later
than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but no later than eighteen months after the effective
date of such Exchange Registration Statement, an earning statement of
the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
(d) In connection with the Company's and MONY Life's obligations with
respect to the Shelf Registration, if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which may be
utilized by the Company and which shall register all of the Registrable
Notes for resale by the holders thereof in accordance with such method
or methods of disposition as may be specified by such of the holders
as, from time to time, may be Electing Holders and use its reasonable
best efforts to cause such Shelf Registration Statement to become
effective as soon as practicable but in any case within the time
periods specified in Section 2(b);
(ii) not less than 24 calendar days prior to the Effective Time
of the Shelf Registration Statement, mail the Notice and Questionnaire
to the holders of Registrable Notes; no holder shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement
as of the Effective Time, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable Notes at
any time, unless such holder has returned a completed and signed Notice
and Questionnaire to the Company by the deadline for response set forth
therein and the Company has received such response; provided, however,
holders of Registrable Notes shall have at least 21 calendar days from
the date on which the Notice and
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Questionnaire is first mailed to such holders to return a completed and
signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration Statement,
upon the request of any holder of Registrable Notes that is not then an
Electing Holder, promptly send a Notice and Questionnaire to such holder;
provided that the Company shall not be required to take any action to name
such holder as a selling securityholder in the Shelf Registration Statement
or to enable such holder to use the prospectus forming a part thereof for
resales of Registrable Notes until after the Company has received a
completed and signed Notice and Questionnaire from such holder;
(iv) prepare and file with the Commission such amendments and
supplements to such Shelf Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness of such Shelf Registration Statement for the period specified
in Section 2(b) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form
of such Shelf Registration Statement, and furnish to the Electing Holders
copies of any such supplement or amendment simultaneously with or prior to
its being used or filed with the Commission;
(v) comply with the provisions of the Securities Act with respect to
the disposition of all of the Registrable Notes covered by such Shelf
Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf Registration
Statement to the extent such compliance affects the ability of the Electing
Holders to engage in the disposition of the Registrable Notes;
(vi) provide (A) the Electing Holders, (B) the underwriters (which
term, for purposes of this Agreement, shall include a person deemed to be
an underwriter within the meaning of Section 2(a)(11) of the Securities
Act), if any, thereof, (C) any sales or placement agent therefor, (D)
counsel for any such underwriter or agent and (E) not more than one counsel
for all the Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each prospectus included
therein or filed with the Commission and each amendment or supplement
thereto;
(vii) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal place
of business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(vi) who shall certify to the Company that they
have a current intention to sell the Registrable Notes pursuant to the
Shelf Registration such material financial and other information and books
and records of the Company, and cause the officers, employees, counsel and
independent certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
respective counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to agree in
writing to maintain in confidence and not to disclose to any other person
any information or records reasonably designated by
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the Company as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion in
such registration statement or otherwise), or (B) such person shall be
required so to disclose such information pursuant to a subpoena or order of
any court or other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after such
person shall have given the Company prompt prior written notice of such
requirement), or (C) such information is, in the reasonable judgment of the
Company and the Electing Holders, required to be set forth in such Shelf
Registration Statement or the prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be,
complies in all material respects with respect to form with applicable
requirements of the federal securities laws and the rules and regulations
of the Commission and does not contain an untrue statement of a material
fact or omit to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(viii) promptly notify each of the Electing Holders, any sales or
placement agent therefor and any underwriter thereof (which notification
may be made through any managing underwriter that is a representative of
such underwriter for such purpose) and confirm such advice in writing, (A)
when such Shelf Registration Statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of such
Shelf Registration Statement or, if known to the Company or MONY Life, the
initiation or threatening of any proceedings for that purpose, (D) if at
any time the representations and warranties of the Company contemplated by
Section 3(d)(xvii) or Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Notes for sale in any jurisdiction or, if known to the Company or MONY
Life, the initiation or threatening of any proceeding for such purpose, (F)
if at any time when a prospectus is required to be delivered under the
Securities Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder; or (G) of the happening of any event or the
existence of any fact prior to the end of the Resale Period that requires
the Company to make changes in the Exchange Registration Statement,
prospectus, prospectus amendment or supplement or post-effective amendment
in order that the Exchange Registration Statement or the prospectus,
prospectus amendment or supplement or post-effective amendment do not
contain an untrue statement of a material fact nor omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the prospectus,
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prospectus amendment or supplement or post-effective amendment, in
light of the circumstances under which they were made) not
misleading;
(ix) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at
the earliest practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing Holder,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules
and regulations of the Commission and as such managing underwriter
or underwriters, such agent or such Electing Holder reasonably
specifies should be included therein relating to the terms of the
sale of such Registrable Notes, including information with respect
to the principal amount of Registrable Notes being sold by such
Electing Holder or agent or to any underwriters, the name and
description of such Electing Holder, agent or underwriter, the
offering price of such Registrable Notes and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Notes
to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification
of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to each Electing Holder, each placement or
sales agent, if any, therefor, each underwriter, if any, thereof
and the respective counsel referred to in Section 3(d)(vi) an
executed copy (or, in the case of an Electing Holder, a conformed
copy) of such Shelf Registration Statement, each such amendment and
supplement thereto (in each case including all exhibits thereto (in
the case of an Electing Holder of Registrable Notes, upon request)
and documents incorporated by reference therein) and such number of
copies of such Shelf Registration Statement (excluding exhibits
thereto and documents incorporated by reference therein unless
specifically so requested by such Electing Holder, agent or
underwriter, as the case may be) and of the prospectus included in
such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all
material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, and such other documents,
as such Electing Holder, agent, if any, and underwriter, if any,
may reasonably request in order to facilitate the offering and
disposition of the Registrable Notes owned by such Electing Holder,
offered or sold by such agent or underwritten by such underwriter
and to permit such Electing Holder, agent and underwriter to
satisfy the prospectus delivery requirements of the Securities Act;
and the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any
amendment or supplement thereto by each such Electing Holder and by
any such agent and underwriter, in each case in the form most
recently provided to such person by the Company, in connection with
the offering and sale of the Registrable Notes covered by the
prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
11
(xii) use its reasonable best efforts to (A) register or
qualify the Registrable Notes to be included in such Shelf
Registration Statement under such securities laws or blue sky laws
of such jurisdictions as any Electing Holder and each placement or
sales agent, if any, therefor and underwriter, if any, thereof
shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above and for so long as may
be necessary to enable any such Electing Holder, agent or
underwriter to complete its distribution of Notes pursuant to such
Shelf Registration Statement and (C) take any and all other actions
as may be reasonably necessary or advisable to enable each such
Electing Holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such
Registrable Notes; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(d)(xii), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
formation, limited liability company agreement, certificate of
incorporation, as amended, or bylaws, as amended, or any agreement
between it and its stockholders or (4) become subject to taxation
in any jurisdiction;
(xiii) use its reasonable best efforts to obtain the consent
or approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the Shelf
Registration or the offering or sale in connection therewith or to
enable the selling holder or holders to offer, or to consummate the
disposition of, their Registrable Notes;
(xiv) unless any Registrable Notes shall be in book-entry
only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold,
which certificates, if so required by any securities exchange upon
which any Registrable Notes are listed, shall be penned,
lithographed or engraved, or produced by any combination of such
methods, on steel engraved borders, and which certificates shall
not bear any restrictive legends; and, in the case of an
underwritten offering, enable such Registrable Notes to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to any
sale of the Registrable Notes;
(xv) provide a CUSIP number for all Registrable Notes, not
later than the applicable Effective Time;
(xvi) enter into such customary agreements (including if
requested one or more underwriting agreements, engagement letters,
agency agreements, "best efforts" underwriting agreements or
similar agreements), as appropriate, including customary provisions
relating to indemnification and contribution, and take such other
actions in connection therewith as any Electing Holders aggregating
at least 20% in aggregate principal amount of the Registrable Notes
at the time outstanding shall request in order to reasonably
expedite or facilitate the disposition of such Registrable Notes;
12
(xvii) whether or not an agreement of the type referred to
in Section 3(d)(xvi) hereof is entered into and whether or not any
portion of the offering contemplated by the Shelf Registration is
an underwritten offering or is made through a placement or sales
agent or any other entity, (A) make such representations and
warranties to the Electing Holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof in
form, substance and scope as are customarily made in connection
with an offering of debt securities pursuant to any appropriate
agreement or to a registration statement filed on the form
applicable to the Shelf Registration; (B) obtain an opinion of
counsel to the Company in customary form and covering such matters,
of the type customarily covered by such an opinion, as the managing
underwriters, if any, or as any Electing Holders of at least 25% in
aggregate principal amount of the Registrable Notes at the time
outstanding may reasonably request, addressed to such Electing
Holder or Electing Holders and the placement or sales agent, if
any, therefor and the underwriters, if any, thereof and dated the
effective date of such Shelf Registration Statement (and if such
Shelf Registration Statement contemplates an underwritten offering
of a part or all of the Registrable Notes, dated the date of the
closing under the underwriting agreement relating thereto) (it
being agreed that the matters to be covered by such opinion shall
include those matters covered in the opinions of counsel to the
Company issued at the date of original issuance of the Notes and
other opinions in customary form concerning registration of the
Notes under the Securities Act, of the type customarily given for
similar offerings of securities registered under the Securities
Act); (C) obtain a "comfort" letter or letters from the independent
certified public accountants of the Company addressed to the
selling Electing Holders, the placement or sales agent, if any,
therefor or the underwriters, if any, thereof, dated (i) the
effective date of such Shelf Registration Statement and (ii) the
effective date of any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective
amendment to such Shelf Registration Statement which includes
unaudited or audited financial statements as of a date or for a
period subsequent to that of the latest such statements included in
such prospectus (and, if such Shelf Registration Statement
contemplates an underwritten offering pursuant to any prospectus
supplement to the prospectus included in such Shelf Registration
Statement or post-effective amendment to such Shelf Registration
Statement which includes unaudited or audited financial statements
as of a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such matters
of the type customarily covered by letters of such type; (D)
deliver such documents and certificates, including officers'
certificates, as may be reasonably requested by any Electing
Holders of at least 25% in aggregate principal amount of the
Registrable Notes at the time outstanding or the placement or sales
agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance in all material respects
with or satisfaction in all material respects of any agreements or
conditions contained in the underwriting agreement or other
agreement entered into by the Company; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
13
(xviii) notify in writing each holder of Registrable Notes
of any proposal by the Company to amend or waive any provision of
this Agreement pursuant to Section 9(h) hereof and of any amendment
or waiver effected pursuant thereto, each of which notices shall
contain the text of the amendment or waiver proposed or effected,
as the case may be;
(xix) in the event that any Broker-dealer shall underwrite
any Registrable Notes or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules (the "Conduct Rules") of the
National Association of Securities Dealers, Inc. ("NASD") or any
successor thereto, as amended from time to time) thereof, whether
as a holder of such Registrable Notes or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof,
or otherwise, reasonably assist such Broker-dealer in complying
with the requirements of such Conduct Rules, including by (A) if
such Conduct Rules shall so require, engaging a "qualified
independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Shelf Registration Statement
relating to such Registrable Notes, to exercise usual standards of
due diligence in respect thereto and, if any portion of the
offering contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Registrable Notes, (B)
indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 6
hereof (or to such other customary extent as may be requested by
such underwriter), and (C) providing such information to such
Broker-dealer as may be required in order for such Broker-dealer to
comply with the requirements of the Conduct Rules; and
(xx) comply with all applicable rules and regulations of
the Commission, and make generally available to its securityholders
as soon as practicable but in any event not later than eighteen
months after the effective date of such Shelf Registration
Statement, an earning statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(c)(iii)(F) or 3(d)(viii)(F) above, to notify the Electing
Holders, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall, as soon as practicable,
prepare and furnish to each of the Electing Holders, to each placement or
sales agent, if any, and to each such underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Notes, such prospectus
shall conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made. Each
Electing Holder or Broker-Dealer Holder, as applicable, agrees that upon
receipt of any notice from the Company pursuant to Section 3(c)(iii)(F) or
3(d)(viii)(F) hereof, such Electing Holder or Broker-Dealer Holder, as
applicable, shall forthwith discontinue the disposition of Registrable
Notes pursuant to the Shelf Registration Statement applicable to such
Registrable Notes or Exchange Registration Statement, as applicable, until
such Electing Holder or Broker-Dealer Holder, as applicable, shall have
received copies of such
14
amended or supplemented prospectus, and if so directed by the Company, such
Electing Holder or Broker-Dealer Holder, as applicable, shall deliver to
the Company (at the Company's expense) all copies, other than permanent
file copies, then in such Electing Holder's or Broker-Dealer Holder's, as
applicable, possession of the prospectus covering such Registrable Notes or
Exchange Registration Statement, as applicable, at the time of receipt of
such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
Questionnaire, the Company may require such Electing Holder to furnish to
the Company such additional information regarding such Electing Holder and
such Electing Holder's intended method of distribution of Registrable Notes
as may be required in order to comply with the Securities Act. Each such
Electing Holder agrees to notify the Company as promptly as practicable of
any inaccuracy or change in information previously furnished by such
Electing Holder to the Company or of the occurrence of any event in either
case as a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of a material
fact regarding such Electing Holder or such Electing Holder's intended
method of disposition of such Registrable Notes or omits to state any
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Notes required to be
stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made, and promptly to
furnish to the Company any additional information required to correct and
update any previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder or the
disposition of such Registrable Notes, an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made.
(g) Until the expiration of two years after the Closing Date, the
Company and MONY Life will and will not permit any of its "affiliates" (as
defined in Rule 144) to, resell any of the Notes that have been reacquired
by any of them except pursuant to an effective registration statement under
the Securities Act.
(h) Notwithstanding anything to the contrary in this Agreement,
including without limitation, Sections 2 and 3 hereof, if outside counsel
to the Company (which counsel shall be experienced in securities laws
matters) has determined in good faith that (i) the filing of the Shelf
Registration Statement or (ii) the compliance by the Company with its
disclosure obligations in connection with the Shelf Registration Statement
at any time or in connection with the Exchange Registration Statement
during the Resale Period would require the disclosure of information that
would be reasonably likely to materially adversely affect the ability of
the Company or any of its affiliates to consummate a transaction
significant to MONY Group and its subsidiaries, taken as a whole (whether
or not a final decision has been made to undertake such transaction), or
require disclosure of information the Company reasonably determines it
cannot disclose at that time without material prejudice to it or its
affiliates, then the Company (x) may delay the filing or the effectiveness
of the Shelf Registration Statement (if not then filed or effective, as
applicable) and (y) shall not be required to maintain the effectiveness of,
or amend or supplement, the Shelf Registration Statement or the Exchange
Registration Statement, for a period (a "Deferral Period") expiring not
later than three business days after the earlier to occur of (A) the date
on which such material information is disclosed to the public or ceases to
be material or the Company is able to so comply with its disclosure
obligations and commission requirements or (B) 90
15
days after the Company notifies the Purchasers and Electing Holders of such
determination; provided that aggregate number of days in all Deferral
Periods shall not exceed 90 during any 12-month period.
(i) The Company will give prompt written notice, in the manner
prescribed by Section 9(c) hereof, to each Purchaser and Electing Holder of
each Deferral Period. Each holder, by his acceptance of any Registrable
Notes, agrees that upon receipt of such notice of a Deferral Period (i) it
will forthwith discontinue disposition of Registrable Notes pursuant to the
Shelf Registration Statement or the Exchange Registration Statement, and
(ii) it will not deliver any prospectus forming a part of the Shelf
Registration Statement or the Exchange Registration Statement in connection
with any sale of Registrable Notes, as applicable until such holder's
receipt of copies of the supplemented or amended prospectus provided for in
clause (e) above, or until it is advised in writing by the Company that the
prospectus forming part of the Shelf Registration Statement or the Exchange
Registration Statement may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such prospectus.
(j) The Company and MONY Life will have no liability for failing to
perform any obligations it may have pursuant to Sections 2 and 3 of this
Agreement during any Deferral Period; provided that if pursuant to Section
2(c) hereof Liquidated Damages are accruing at the commencement of a
Deferral Period or a Registration Default occurs during a Deferral Period,
Liquidated Damages shall continue to accrue until the Registration Default
giving rise to the accrual of Liquidated Damages shall have been cured.
4. Registration Expenses.
The Company and MONY Life agree to bear and to pay or cause to be
paid promptly all expenses incident to the Company's and MONY Life's performance
of or compliance with this Agreement, including (a) all Commission and any NASD
registration, filing and review fees and reasonable expenses including fees and
disbursements of one counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all reasonable fees
and expenses in connection with the qualification of the Notes for offering and
sale under the State securities and blue sky laws referred to in Section
3(d)(xii) hereof and determination of their eligibility for investment under the
laws of such jurisdictions as any managing underwriters or the Electing Holders
may designate, including any fees and disbursements of one counsel for the
Electing Holders or underwriters in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Notes for delivery and the expenses of printing or
producing any underwriting agreements, agreements among underwriters, selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Notes to be disposed of
(including certificates representing the Notes), (d) messenger, telephone and
delivery expenses relating to the offering, sale or delivery of Notes and the
preparation of documents referred in clause (c) above, (e) fees and expenses of
the Trustee under the Indenture, any agent of the Trustee and any counsel for
the Trustee and of any collateral agent or custodian, (f) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company and MONY
Life (including the expenses of any
16
opinions or "comfort" letters required by or incident to such performance and
compliance), (h) fees, disbursements and expenses of any "qualified independent
underwriter" engaged pursuant to Section 3(d)(xix) hereof, (i) reasonable fees,
disbursements and expenses of one counsel for the Electing Holders retained in
connection with a Shelf Registration, as selected by the Electing Holders of at
least a majority in aggregate principal amount of the Registrable Notes held by
Electing Holders (which counsel shall be reasonably satisfactory to the
Company), (j) any fees charged by securities rating services for rating the
Notes, and (k) fees, expenses and disbursements of any other persons, including
special experts, retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Registrable Notes or any
placement or sales agent therefor or underwriter thereof, the Company and MONY
Life shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of an invoice
therefor. Notwithstanding the foregoing, the holders of the Registrable Notes
being registered shall pay all agency fees and commissions and underwriting
discounts and commissions attributable to the sale of such Registrable Notes and
the fees and disbursements of any counsel or other advisors or experts retained
by such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. Representations and Warranties.
The Company and MONY Life represent and warrant to, and agree
with, each Purchaser and each of the holders from time to time of Registrable
Notes that:
(a) Each registration statement covering Registrable Notes and each
prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(d) or Section 3(c) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Notes, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances when they were made; and at
all times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such
time as a notice has been given to holders of Registrable Notes pursuant to
Section 3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until (ii) such time
as the Company furnishes an amended or supplemented prospectus pursuant to
Section 3(e) or Section 3(c)(iv) hereof, each such registration statement,
and each prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(d) or Section 3(c) hereof, as then amended
or supplemented, will conform in all material respects to the requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of Registrable
Notes expressly for use therein.
17
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company or MONY Life by a holder of Registrable Notes
expressly for use therein.
(c) The compliance by the Company and MONY with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement to which the
Company or MONY Life and any of their respective significant subsidiaries
(as such term is defined in Rule 1-02(w) of Regulation S-X of the
Commission) of the Company is a party or by which the Company or any
significant subsidiary of the Company is bound or to which any of the
property or assets of the Company or any significant subsidiary of the
Company is subject, nor will such action result in any violation of the
provisions of the certificate of formation, or limited liability company
agreement, of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any significant subsidiary of the Company or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the
Securities Act of the Notes, qualification of the Indenture under the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities, insurance
securities or blue sky laws in connection with the offering and
distribution of the Notes; provided that the representations and warranties
contained in this Section 5(c) will not apply to the extent that such
conflict, default, violation, breach or lack of consent would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole and not affect the validity, performance or consummation of the
transactions contemplated by this Agreement.
(d) This Agreement has been duly authorized, executed and delivered by
the Company and MONY Life.
6. Indemnification.
(a) Indemnification by the Company and MONY Life. The Company and MONY
Life, jointly and severally, will indemnify and hold harmless each of the
holders of Registrable Notes included in an Exchange Registration
Statement, each of the Electing Holders of Registrable Notes included in a
Shelf Registration Statement and each person who participates as a
placement or sales agent or as an underwriter in any offering or sale of
such Registrable Notes against any losses, claims, damages or liabilities,
joint or several, to which such holder, agent or underwriter may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Exchange Registration Statement or Shelf
Registration
18
Statement, as the case may be, under which such Registrable Notes were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company or MONY Life to
any such holder, Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse such holder, such Electing Holder, such agent and such
underwriter for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company and MONY Life
shall not be liable to any such person in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company or MONY
Life by such person expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters.
The Company and MONY Life may require, as a condition to including any
Registrable Notes in any registration statement filed pursuant to Section
2(b) hereof and to entering into any underwriting agreement with respect
thereto, that the Company or MONY Life shall have received an agreement
reasonably satisfactory to it from the Electing Holder of such Registrable
Notes and from each underwriter named in any such underwriting agreement,
severally and not jointly, to (i) indemnify and hold harmless the Company
and MONY Life, and all other holders of Registrable Notes, against any
losses, claims, damages or liabilities to which the Company, MONY Life or
such other holders of Registrable Notes may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or
summary prospectus contained therein or furnished by the Company or MONY
Life to any such Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company or MONY Life by such Electing Holder or underwriter expressly for
use therein, and (ii) reimburse the Company or MONY Life for any legal or
other expenses reasonably incurred by the Company or MONY Life in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that no such Electing Holder
shall be required to undertake liability to any person under this Section
6(b) for any amounts in excess of the dollar amount of the proceeds to be
received by such Electing Holder from the sale of such Electing Holder's
Registrable Notes pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify
such indemnifying party in writing of the commencement of such action; but
the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any
19
indemnified party otherwise than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party (which shall not be unreasonably
withheld or delayed), be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Notes (after deducting
any fees, discounts and commissions applicable thereto) exceeds the amount of
any damages which such holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the amount
by which
20
the total price at which the Registrable Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Notes registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Company and MONY Life under this Section 6
shall be in addition to any liability which the Company or MONY Life may
otherwise have and shall extend, upon the same terms and conditions, to
each officer, director and partner of each holder, agent and underwriter
and each person, if any, who controls any holder, agent or underwriter
within the meaning of the Securities Act; and the obligations of the
holders and any agents or underwriters contemplated by this Section 6 shall
be in addition to any liability which the respective holder, agent or
underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and MONY Life and
each person who controls the Company or MONY Life.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Notes covered
by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be
designated by Electing Holders holding at least a majority in aggregate
principal amount of the Registrable Notes to be included in such offering,
provided that such designated managing underwriter or underwriters is or
are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Notes hereby
agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell
such holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
8. Rule 144.
The Company and MONY Life covenant to the holders of Registrable
Notes that to the extent it shall be required to do so under the Exchange Act,
the Company shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Notes may reasonably request, all to the extent required
from time to time to enable such holder to sell Registrable Notes without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Notes in
connection with that
21
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Notes or any other
securities which would be inconsistent with the terms contained in this
Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company or MONY Life fails to
perform any of their obligations hereunder and that the Purchasers and the
holders from time to time of the Registrable Notes may be irreparably
harmed by any such failure, and accordingly agree that the Purchasers and
such holders, in addition to any other remedy to which they may be entitled
at law or in equity, shall be entitled to compel specific performance of
the obligations of the Company or MONY Life under this Agreement in
accordance with the terms and conditions of this Agreement.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; attn:
General Counsel of MONY Life, copy to Xxxxx Xxxxxxxxxx LLP, attn: Xxxxxxxx
X. Xxxxxxxx, and if to a holder, to the address of such holder set forth in
the security register or other records of the Company, or to such other
address as the Company or any such holder may have furnished to the other
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and the holders from time to time of the
Registrable Notes and the respective successors and assigns of the parties
hereto and such holders. In the event that any transferee of any holder of
Registrable Notes shall acquire Registrable Notes, in any manner, whether
by gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Registrable Notes shall be
held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes such transferee shall be entitled to receive
the benefits of, and be conclusively deemed to have agreed to be bound by
all of the applicable terms and provisions of this Agreement. If the
Company or MONY Life shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Registrable Notes
subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of any holder of Registrable Notes, any director, officer or partner of
such holder, any agent or underwriter or any director, officer or partner
thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the
22
Registrable Notes pursuant to the Purchase Agreement and the transfer and
registration of Registrable Notes by such holder and the consummation of an
Exchange Offer.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws rules of such state.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(h) Entire Agreement; Amendments. This Agreement and the other writings
referred to herein (including the Indenture and the form of Notes) or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Agreement may be amended
and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company,
MONY Life and the holders of at least a majority in aggregate principal
amount of the Registrable Notes at the time outstanding. Each holder of any
Registrable Notes at the time or thereafter outstanding shall be bound by
any amendment or waiver effected pursuant to this Section 9(h), whether or
not any notice, writing or marking indicating such amendment or waiver
appears on such Registrable Notes or is delivered to such holder.
(i) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders
of Registrable Notes shall be made available for inspection and copying on
any business day during normal business hours by any holder of Registrable
Notes for proper purposes only (which shall include any purpose related to
the rights of the holders of Registrable Notes under the Notes, the
Indenture and this Agreement) at the offices of the Company at the address
thereof set forth in Section 9(c) above and at the office of the Trustee
under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
23
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers, the Company
and MONY Life. It is understood that your acceptance of this letter on behalf of
each of the Purchasers is pursuant to the authority set forth in a form of
Agreement among Purchasers, the form of which shall be submitted to the Company
and MONY Life for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
MONY Holdings, LLC
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
MONY Life Insurance Company
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President and
General Counsel
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.,
Credit Suisse First Boston Corporation,
Advest, Inc.,
Xxxxxxx Xxxxx Barney Inc.,
XX Xxxxxx Securities Inc.,
Fleet Securities, Inc.
By: /s/ Xxxxxxx, Sachs & Co.
-----------------------------------
(Xxxxxxx, Xxxxx & Co.)
Exhibit A
MONY Holdings, LLC
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the MONY Holdings, LLC (the "Company")
Floating Rate Insured Notes due January 21, 2017 (the "Notes") are held.
The Company is in the process of registering the Notes under the Securities Act
of 1933 for resale by the beneficial owners thereof. In order to have their
Notes included in the registration statement, beneficial owners must complete
and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Notes receive a copy of the
enclosed materials as soon as possible as their rights to have the Notes
included in the registration statement depend upon their returning the Notice
and Questionnaire by [Deadline For Response]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the Notes
through you. If you require more copies of the enclosed materials or have any
questions pertaining to this matter, please contact the General Counsel of MONY
Life Insurance Company, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; tel.
000-000-0000.
______________________________
* At least 21 calendar days from date of mailing.
A-1
MONY Holdings, LLC
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between MONY Holdings, LLC (the
"Company"), MONY Life Insurance Company and the Purchasers named therein.
Pursuant to the Exchange and Registration Rights Agreement, the Company has
filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form [__] (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's Floating Rate
Insured Notes due January 21, 2017 (the "Notes"). A copy of the Exchange and
Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Notes is entitled to have the Registrable
Notes beneficially owned by it included in the Shelf Registration Statement. In
order to have Registrable Notes included in the Shelf Registration Statement,
this Notice of Registration Statement and Selling Securityholder Questionnaire
("Notice and Questionnaire") must be completed, executed and delivered to the
Company's counsel at the address set forth herein for receipt ON OR BEFORE
[Deadline for Response]. Beneficial owners of Registrable Notes who do not
complete, execute and return this Notice and Questionnaire by such date (i) will
not be named as selling securityholders in the Shelf Registration Statement and
(ii) may not use the Prospectus forming a part thereof for resales of
Registrable Notes.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Notes are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Notes
hereby elects to include in the Shelf Registration Statement the Registrable
Notes beneficially owned by it and listed below in Item (3). The undersigned, by
signing and returning this Notice and Questionnaire, agrees to be bound with
respect to such Registrable Notes by the terms and conditions of this Notice and
Questionnaire and the Exchange and Registration Rights Agreement, including,
without limitation, Section 6 of the Exchange and Registration Rights Agreement,
as if the undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Notes pursuant to the Shelf Registration Statement,
the Selling Securityholder will be required to deliver to the Company and
Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and as
Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
______________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Notes Listed in Item (3) below:
______________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Notes Listed in Item (3) below
are Held:
______________________________________________________________________
(2) Address for Notices to Selling Securityholder:
_______________________________
_______________________________
_______________________________
Telephone: _______________________________
Fax: _______________________________
Contact Person: _______________________________
(3) Beneficial Ownership of Notes:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Notes.
(a) Principal amount of Registrable Notes beneficially owned:
_________________________
CUSIP No(s). of such Registrable Notes: ______________________________
(b) Principal amount of Notes other than Registrable Notes beneficially
owned: _______________________________________________________________
CUSIP No(s). of such other Notes: ____________________________________
(c) Principal amount of Registrable Notes which the undersigned wishes to
be included in the Shelf Registration Statement:
____________________________________________
CUSIP No(s). of such Registrable Notes to be included in the Shelf
Registration Statement: ______________________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Notes listed above in Item
(3).
State any exceptions here:
A-4
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Notes listed above in Item (3)
only as follows (if at all): Such Registrable Notes may be sold from
time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or agents. Such
Registrable Notes may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale, or at negotiated prices. Such
sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange or
quotation service on which the Registered Notes may be listed or
quoted at the time of sale, (ii) in the over-the-counter market, (iii)
in transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Notes or otherwise, the
Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Notes in the course of hedging the positions they assume.
The Selling Securityholder may also sell Registrable Notes short and
deliver Registrable Notes to close out such short positions, or loan
or pledge Registrable Notes to broker-dealers that in turn may sell
such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Notes listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for
A-5
inclusion in the Shelf Registration Statement, the Selling Securityholder agrees
to promptly notify the Company of any inaccuracies or changes in the information
provided herein which may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains in effect. All notices hereunder and
pursuant to the Exchange and Registration Rights Agreement shall be made in
writing, by hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery as follows:
(i) To the Company:
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel of MONY Life
Insurance Company
(ii) With a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxxx
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Notes beneficially owned
by such Selling Securityholder and listed in Item (3) above. This Agreement
shall be governed in all respects by the laws of the State of New York without
regard to the conflicts of laws rules of such state.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: ____________________________
_____________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Notes)
By: _________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxxx
A-7
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Bank One Trust Company, N.A.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Trust Officer
Re: MONY Holdings, LLC (the "Company")
Floating Rate Insured Notes due January 21, 2017
Dear Sirs:
Please be advised that __________________________________ has transferred
$_______________________________ aggregate principal amount of the
above-referenced Notes pursuant to an effective Registration Statement on Form
[___] (File No. 333-____) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [date] or in supplements thereto, and that the aggregate principal amount
of the Notes transferred are the Notes listed in such Prospectus opposite such
owner's name.
Dated:
Very truly yours,
______________________________
(Name)
By: ______________________________
(Authorized Signature)
B-1
