Exhibit 24.(3)(a)
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT (the "Agreement") made this 1st day of January,
1991, by and between MONY Series Fund, Inc., a Maryland corporation (the
"Fund"), and MONY Securities Corp. (the "Distributor"), a New York corporation,
and The Mutual Life Insurance Company of New York ("the Company"), a mutual life
insurance company organized in New York, on its own behalf and on behalf of MONY
Variable Account A (the "Variable Account").
WITNESSETH:
WHEREAS, the Company has established and maintains the Variable Account,
a separate investment account, pursuant to the laws of New York for the purpose
of selling flexible premium variable annuity contracts (the "Contracts"),
pursuant to the registration statement for the Contracts as filed with the
Securities and Exchange Commission on Form N-4 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 Life Insurance Company of America ("MONY America") as the funding media
for the Contracts and similar contracts of MONY America; and
WHEREAS, the Fund is comprised of separate portfolios, each of which
pursues its investment objective through separate investment policies; 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
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WHEREAS, since the Fund's shares are offered to the Company and MONY
America for allocation to their respective Variable Accounts, on a no-load
basis, as the funding media for the Contracts and similar contracts of MONY
America, 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 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 on
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
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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.
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 Contacts and effective under the 1933 Act.
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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.
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
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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 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 I, 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
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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.
(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.
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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.
(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 with out 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.
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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 II shall become effective as of the data 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
noninterested directors (as defined in the 0000 Xxx) 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.
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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 held 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 while 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.
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__________________________________________________
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
By__________________________________________________
MONY SERIES FUND, INC.
By__________________________________________________
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