Exhibit 3.(a)
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT (the "Agreement") made this 1st day of November,
1990, by and between MONY Series Fund, Inc., a Maryland corporation (the
"Fund"), and MONY Securities Corp. (the "Distributor"), a New York corporation,
and MONY Life Insurance Company of America, a stock life insurance company
organized in Arizona (the "Company"), on its own behalf and on behalf of MONY
America Variable Account L (the "Variable Account").
WITNESSETH:
WHEREAS, the Company has established and maintains the Variable Account,
a separate investment account, pursuant to the laws of Arizona for the purpose
of selling flexible premium variable life insurance contracts (the "Contracts"),
pursuant to the registration statement for the Contracts as filed with the
Securities and Exchange Commission on Form S-6 pursuant to the Securities Act of
1933, as amended (the "1933 Act"); and
WHEREAS, the Variable Account is registered as a unit investment trust
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "Securities Exchange Act"), and
is a member of the National Association of Securities Dealers, Inc. ("NASD");
and
WHEREAS, the Company and the Distributor wish to enter into an agreement
to have the Distributor act as the company's principal underwriter for the sale
of the Contracts, the proceeds of which will be allocated to the Variable
Account; and
WHEREAS, the Fund is registered under the 1940 Act as a diversified
open-end investment company and offers its shares continuously to the Company,
and MONY Legacy Life Insurance Company ("MONY Legacy") as the funding media for
the Contracts and similar contracts of MONY Legacy; and
WHEREAS, the Variable Account is comprised of subaccounts, each of which
invests its assets in the shares of capital stock of the Fund corresponding to
one of the separate portfolios of the Fund; and
WHEREAS, since the Fund's shares are offered to the Company and MONY
Legacy for allocation to their respective Variable Accounts, on a no-load basis,
as the funding media for the Contracts and similar contracts of MONY Legacy, the
Fund wishes to enter into an agreement to have the Distributor act as the Fund's
principal underwriter for the sale of the Fund's shares to the Company for
allocation to the Variable Account, whose assets will be
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derived from the sale of the Contracts, and the Distributor is willing so to act
on the terms hereinafter set forth;
NOW, THEREFORE, for the agreements and consideration hereinafter
described, the parties agree as follows:
ARTICLE I
DISTRIBUTION OF THE CONTRACTS
1.1 Appointment of the Distributor. The Company appoints the Distributor as
the principal underwriter for the sale of Contracts to the public,
during the term of the Agreement and in accordance with the provisions
of this Article I, in each state and other jurisdictions in which such
Contracts may lawfully be sold. The Distributor accepts such
appointment.
1.2 Method of Distribution of the Contracts. The Company shall during the
term of the provisions of this Article I take all action required to
cause the Contracts to comply as an insurance product and a registered
security with all applicable federal and state laws and regulations. The
Distributor shall offer the Contracts for sale and distribution at
premium rates set by the Company. Applications for the Contracts shall
be solicited only by representatives duly and appropriately licensed or
otherwise qualified for the sale of such Contracts in each state or
other jurisdiction. The Company shall undertake to appoint the
Distributor's qualified representatives as life insurance agents of the
Company. Completed applications for the Contracts shall be transmitted
directly to the Company for acceptance or rejection in accordance with
underwriting rules established by the Company. Initial premium payments
under the Contracts shall be made by check payable to the Company and
shall be held at all times by the Distributor or its representatives in
a fiduciary capacity and remitted promptly to the Company. Nothing in
this Agreement shall limit the Company's ultimate right to control the
sale of the Contracts and to appoint and discharge life insurance agents
of the Company. The Distributor shall be held to the exercise of
reasonable care in carrying out the provisions of this Article I.
1.3 Sales Agreements. The Distributor is hereby authorized to enter into
separate written agreements, not inconsistent with this Agreement and an
such terms and conditions as the Distributor may determine, with one or
more organizations which agree to participate in the distribution of
Contracts. Such organizations (hereafter the "Brokers") shall be both
registered as broker-dealers under the Securities Exchange Act and
members of NASD. Each Broker and its agents or representatives
soliciting applications for Contracts shall be duly and appropriately
licensed, registered or otherwise qualified for the sale of such
Contracts (and the riders and other policies offered in connection
therewith) under the insurance laws and any applicable blue-sky laws of
each state or other jurisdiction in which the Company is licensed to
sell the Contracts.
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The Distributor shall have the responsibility for ensuring that
each Broker supervises its agents and representatives. The Distributor
shall cause each Broker to assume any legal responsibilities of the
Company for the acts, commission or defalcations of such agents or
representatives insofar as they relate to the sale of the Contracts.
Applications for the Contracts solicited by a Broker through its agents
or representatives shall be transmitted directly to the Company, and if
received by the Distributor, shall be forwarded to the Company. All
premium payments under the Contracts shall be made by check to the
Company and, if received by the Distributor, shall be held at all times
in a fiduciary capacity and remitted promptly to the Company.
1.4 Life Insurance Licensing. The Company shall be responsible for ensuring
that Brokers are duly qualified, under the insurance laws of the
applicable jurisdictions to sell the Contracts.
1.5 Suitability. The Company wishes to ensure that Contracts sold by the
Distributor will be, issued to purchasers for whom the Contract will be
suitable. The Distributor shall take reasonable steps to ensure that the
various agents and representatives appointed by it shall not make
recommendations to an applicant to purchase a Contract in the absence of
reasonable grounds to believe that the purchase of the Contract is
suitable for such applicant, pursuant to standards of suitability set by
the Company. While not limited to the following, a determination of
suitability shall be based on information furnished to a representative
after reasonable inquiry of such applicant concerning the applicant's
insurance and investment objectives, financial situation and needs, and
the likelihood that the applicant will continue to make premium payments
sufficient to maintain the Contracts in effect.
1.6 Promotion Materials. The Company shall have the responsibility for
furnishing to the Distributor and its agents or representatives
prospectuses, sales promotion materials and individual sales proposals
related to the sale of the Contracts and other materials as reasonably
requested by the Distributor. The Distributor shall not use any such
materials that have not been approved by the Company.
1.7 Compensation. The Company shall arrange for the payment of commissions
directly to those registered agents or representatives of the
Distributor entitled to such commissions in connection with the sale of
the Contracts on behalf of the Distributor, in the amounts and on such
terms and conditions as the Company and the Distributor shall determine.
Such terms, conditions and commissions shall be as are set forth in or
as are not inconsistent with the current prospectus, included as part of
the registration statement for the Contracts and effective under the
1933 Act.
The Company shall arrange for the payment of commissions
directly to those Brokers who sell Contracts under agreements entered
into pursuant to Section 1.3 of this Agreement, in amounts as may be
agreed to by the Company and specified in such written agreements.
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The Company shall reimburse the Distributor for (i) the amounts
borne by the Distributor, or reimbursed by the Distributor to the
Fund, for distribution expenses in connection with the distribution of
the Fund's shares as provided for in Section 2.7 of this Agreement,
and (ii) the costs and expenses incurred by the Distributor in
furnishing or obtaining the services, materials and supplies required by
the provisions of this Article I in the initial sales efforts and the
continuing obligations under this Article I.
1.8 Records and Confirmations.
(a) The Distributor shall have the responsibility for maintaining the
records of representatives licensed, registered and otherwise qualified
to sell the Contracts. The Distributor shall maintain and preserve such
other records as are required of it by applicable laws and regulations.
The books, accounts and records of the Company, the Variable Account and
the Distributor shall be maintained so as to clearly and accurately
disclose the nature and details of the transactions. All records
maintained by the Distributor in connection with the provisions of this
Article I shall be the property of the Company and shall be returned to
the Company upon termination of the provisions of this Article I, free
from any claims or retention of rights by the Distributor. The
Distributor shall keep confidential any information obtained pursuant to
the provisions of this Article I and shall disclose such information,
only if the Company has authorized such disclosure, or if such
disclosure is expressly required by applicable federal or state
regulatory authorities.
(b) The Company or the Distributor, as they shall agree, shall be
responsible for sending all required confirmations on customer
transactions in compliance with applicable regulations, as may be
modified by exemption or other relief obtained by the Company or the
Distributor.
1.9 Investigation and Proceeding.
(a) The Distributor and the Company agree to cooperate fully in any
insurance regulatory investigation or proceeding or judicial proceeding
arising in connection with the Contracts distributed under this
Agreement. The Distributor and the Company further agree to cooperate
fully in any securities regulatory investigation or proceeding or
judicial proceeding with respect to the Company, the Distributor, or
their affiliates, agents or representatives to the extent that such
investigation or proceeding is in connection with Contracts distributed
under this Agreement. The Distributor shall furnish applicable federal
and state regulatory authorities with any information or reports in
connection with its services under the provisions of this Article I
which such authorities may request in order to ascertain whether the
Company's operations are being conducted in a manner consistent with any
applicable law or regulations.
(b) In the case of a substantive customer complaint, the Distributor and
the Company shall cooperate in investigating such complaint. Any
response to such complaint by the Distributor or the Company shall be
sent to the other party for approval not less than five business days
prior to its being sent to the customer or regulatory authority, except
that if
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a more prompt response is required, the proposed response shall be
communicated by telephone or other means of communication
1.10 Termination. The provisions of this Article I shall terminate
automatically upon this Agreement's assignment, unless both the
Distributor and the Company shall have consented in writing to such
assignment. The provisions of this Article I may be terminated at any
time by either the Distributor or the Company on 60 days' written notice
to the other party, without the payment of any penalty. Upon termination
of the provisions of this Article 1, all authorizations, rights and
obligations shall cease except the obligation to settle accounts under
the provisions of this Article I, including commissions on premiums
subsequently received for Contracts in effect at time of termination,
and the obligations of Sections 1.7, 1.8 and 1.9 of this Agreement.
ARTICLE II
DISTRIBUTION OF THE FUND'S SHARES
2.1 Appointment of the Distributor. The Fund appoints the Distributor as the
principal underwriter and distributor of the Fund to sell its shares of
capital stock, as now existing or later created, to the Company for
allocation to the Variable Account. The Distributor accepts such
appointment. Nothing in this Agreement shall prevent the Distributor
from purchasing shares of the Fund for the distributor's own account in
order to provide initial capital to the portfolios of the Fund, as now
exist or as may be created in the future. Any shares acquired by the
Distributor for its own account will be acquired only for investment and
can be disposed of only by redemption.
2.2 Exclusive Nature of Duties. Subject to direction and approval of the
Board of Directors of the Fund, the Distributor shall be the exclusive
representative of the Fund to act as principal underwriter and
distributor.
2.3 Purchase of Shares from the Fund.
(a) The Fund will make available to the Distributor, and the Distributor
will sell on behalf of the Fund, the shares of the Fund needed to fill
unconditional orders for shares of the Fund placed with the Distributor
by the Company for allocation to the Variable Account. The price that
the Distributor shall pay for the shares corresponding to each portfolio
so purchased shall be the net asset value per share corresponding to
such portfolio, as determined on the basis set forth in Section 2.3(c)
of this Agreement.
(b) The shares corresponding to each portfolio (other than shares sold
to and purchased by the Distributor to provide initial capital to any of
the Fund's portfolios) shall be resold by the Distributor to the Company
for allocation to the Variable Account at the net asset value per share
of such portfolio.
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(c) On each day in which the net asset value of the shares corresponding
to any Portfolio is determined, the Fund shall provide to the
Distributor, for it to provide to the Company, the net asset value of
such shares by 90 minutes after the close of the New York Stock Exchange
or at such later time as shall be agreed to by the parties. The net
asset value of such shares shall be determined in accordance with the
method set forth in the current prospectus of the Fund.
(d) The Fund shall have the right to suspend the sale of shares
corresponding to any of its portfolios at times when redemption of such
shares is suspended pursuant to the conditions set forth in Section
2.4(b) of this Agreement. The Fund shall also have the right to suspend
the sale of shares corresponding to any of its Portfolios if trading on
the New York Stock Exchange shall have been suspended, if a banking
moratorium shall have been declared, or if there shall have been some
other extraordinary event that, in the judgment of the Fund, makes it
impracticable to sell any such shares.
2.4 Redemption of Shares by the Fund.
(a) Any of the outstanding shares corresponding to any of the portfolios
held by the Company's Variable Account may be tendered for redemption at
any time, and the Fund agrees to redeem any such shares so tendered in
accordance with the applicable provisions of the Fund's current
prospectus, articles of incorporation and by-laws. The redemption price
is the net asset value per share next determined after the initial
receipt of proper notice of redemption.
(b) The right to redeem shares or to receive payment with respect to any
redemption may be suspended only for (i) any period during which trading
on the New York Stock Exchange is closed (other than customary week-end
and holiday closings) or is restricted as determined by the Securities
and Exchange Commission, (ii) any period during which an emergency
exists as a result of which disposal of the Fund's shares or
determination of the net asset value of each portfolio of the Fund is
not reasonably practicable, or (iii) for such other periods as the
Securities and Exchange Commission may by order permit for the
protection of shareholders of the Fund.
2.5 Duties of the Fund.
(a) The Fund shall furnish to the Distributor copies of all information,
financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of the
shares of the Fund.
(b) The Fund shall take, from time to time, subject to the necessary
approval of its shareholders, all necessary action to fix the number of
its authorized shares and to register shares under the 1933 Act, in
order that there will be available for sale such number of shares as the
Company may reasonably be expected to purchase for allocation to the
Variable Account.
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(c) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of shares corresponding to each
of its portfolios for sale under the securities laws of such states as
the Distributor and the Fund may approve, if such qualification is
required by such securities laws. Any such qualification may be
withheld, terminated or withdrawn by the Fund at any time in its
discretion.
2.6 Duties of the Distributor. In selling the shares of the Fund, the
Distributor shall use its best efforts to conform with the requirements
of all federal and state laws and regulations, and NASD regulations
relating to the sale of such securities. Except as provided below, the
Distributor is not authorized by the Fund to give any information or
make any representations, other than those contained in the registration
statement for the Fund and its shares, the Fund's current Prospectus,
and any sales literature specifically approved by the Fund. The
Distributor shall furnish applicable federal and state regulatory
authorities with any information or reports in connection with its
services under the provisions of Article II which such authorities may
request in order to ascertain whether the Fund's operations are being
conducted in a manner consistent with any applicable law or regulations.
Nothing contained in this Agreement shall prevent the Fund from entering
into distribution arrangements with other investment companies or shall
prevent the Distributor from distributing shares of the Fund to other
companies as described in the Fund's current prospectus. The Distributor
shall be without liability to the Fund for any action taken or omitted
by it in good faith without negligence.
2.7 Allocation of Expenses. In connection with the distribution of the
Fund's shares, the Distributor shall directly bear, or reimburse the
Fund for, the expenses incurred in connection with the Distributor's
sales activities on behalf of the Fund, including without limitation (i)
the preparation, printing and mailing of any prospectuses or other
materials required by federal or state authorities (after the initial
registration of the Fund's shares of capital stock), and (ii) the costs
of maintaining the effectiveness of the Fund's registration and
qualification of its shares of capital stock for sale. It is
contemplated that these expenses that are reimbursed or borne by the
Distributor will be reimbursed to the Distributor by the Company under
Section 1.7 of this Agreement.
2.8 Records. All records maintained by the Distributor in connection with
the provisions of this Article II shall be the property of the Fund and
shall be returned to the Fund upon termination of the provisions of this
Article II, free from any claims or retention of rights by the
Distributor. The Distributor shall maintain and preserve all written
records as may be required under applicable laws and regulations. The
Distributor shall keep confidential any information obtained pursuant to
the provisions of this Article II and may disclose such information,
only if the Fund has authorized such disclosure, or if such disclosure
is expressly required by applicable federal or state regulatory
authorities.
2.9 Duration and Termination of this Agreement. The provisions of this
Article 11 shall become effective as of the date first written above and
shall continue in effect for a period of more than one year from the
date of execution hereof so long as such continuance is specifically
approved at least annually by (i) a majority vote of the entire Board of
Directors of the Fund, and (ii) a majority of the non-interested
directors (as defined in the
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1940 Act) of the Fund's Board of Directors, cast in person at a meeting
called for the purpose of voting on such plan or agreements.
The provisions of this Article II may be terminated at any time
without penalty on at least sixty days' written notice by (i) vote of a
majority of the non-interested directors (as defined in the 0000 Xxx) of
the Fund's Board of Directors, (ii) vote of a majority of the
outstanding voting securities (as defined in the 0000 Xxx) of the Fund,
(iii) majority vote of the Fund's Board of Directors, (iv) the
Distributor, or (v) with respect to any portfolio, vote of a majority of
the outstanding shares of the capital stock (as defined in the 0000 Xxx)
corresponding to such portfolio.
The provisions of this Article II shall terminate automatically
in the event of its assignment.
2.10 Amendment. The provisions of this Agreement, in particular Section 2.7,
may not be amended so that the Fund would bear (without reimbursement by
the Distributor) any expenses in connection with any activity primarily
intended to result in the sale of the Fund's shares, unless with respect
to any portfolio of the Fund for which the Fund is to bear such expenses
(i) such amendment is entered into pursuant to a plan of distribution,
which plan has been formulated and approved by the Board of Directors of
the Fund, including the directors who are non-interested directors (as
defined in the 0000 Xxx) and have no direct or indirect financial
interest in this Agreement, (ii) such distribution plan is approved by
vote of a majority of the outstanding shares of the capital stock (as
defined in the 0000 Xxx) corresponding to such portfolio, and (iii) such
amendment is approved by a majority of the Board of Directors of the
Fund, Including the directors who are non-interested directors (as
defined in the 0000 Xxx) and have no direct or indirect financial
interest in this Agreement.
ARTICLE III
GENERAL PROVISIONS
3.1 Regulation. This Agreement shall be subject to the provisions of the
1940 Act, the 1933 Act and the Securities Exchange Act and the rules,
regulations and rulings thereunder, and of the applicable rules and
regulations of the NASD, from time to time in effect. The terms of this
Agreement shall be interpreted and construed in accordance therewith.
3.2 Severability. If any provision of this Agreement shall be hold or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby. If any of the
provisions of Article II (in whole or in part, or as to one or more of
the Fund's portfolios) or of Article I (in whole or in part) is
terminated, the remainder of this Agreement shall not be affected
thereby.
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3.3 Applicable Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
MONY SECURITIES CORP.
By
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MONY LIFE INSURANCE COMPANY OF AMERICA
By
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MONY SERIES FUND, INC.
By
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