1
EXHIBIT 1.1
S&C Draft of November 2, 1998
The MONY Group Inc.
Common Stock
(par value $.01 per share)
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Underwriting Agreement
(U.S. Version)
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...................., 1998
Xxxxxxx, Xxxxx & Co.,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Xxxxx Barney Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
The MONY Group Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
9,500,000 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 1,425,000 additional shares (the "Optional Shares") of Common Stock, par
value $.01 per share ("Stock"), of the Company (the Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to Section 2 hereof
being collectively called the "Shares").
The Shares are being issued in connection with the reorganization (the
"Demutualization") of The Mutual Life Insurance Company of New York, a New York
mutual life insurance company ("MONY"), into a New York stock life insurance
company pursuant to MONY's Plan of Reorganization, as adopted by the Board of
Trustees of MONY on August 14, 1998 and as amended on September 9, 1998 (as so
amended, the "Plan"), in accordance with the requirements of Section 7312 of the
New York Insurance Law ("Section 7312"). Upon consummation of the
Demutualization, MONY (renamed MONY Life Insurance Company) will become a direct
wholly owned subsidiary of the Company. Pursuant to the Demutualization, the
Company plans to issue shares of stock (the "Policyholder Shares"; and the
Policyholder Shares and the Shares, collectively, the "Transaction Shares") or,
in lieu thereof, cash or Policy Credits (as defined in the Plan) to Eligible
Policyholders (as defined in the Plan) in exchange for their respective
Policyholders' Membership Interests (as defined in the Plan).
It is understood and agreed to by all parties that the Company and MONY
are concurrently entering into an agreement (the "International Underwriting
Agreement") providing for the sale by the Company of up to a total of 2,012,500
shares of Stock (the "International Shares"), including the overallotment option
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thereunder, through arrangements with certain underwriters outside the United
States (the "International Underwriters"), for whom Xxxxxxx Sachs International,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx International, Xxxxxx Xxxxxxx & Co. International
Limited and Xxxxxxx Xxxxx Barney Limited are acting as lead managers. Anything
herein or therein to the contrary notwithstanding, the respective closings under
this Agreement and the International Agreement are hereby expressly made
conditional on one another. The Underwriters hereunder and the International
Underwriters are simultaneously entering into an Agreement between U.S. and
International Underwriting Syndicates (the "Agreement between Syndicates") which
provides, among other things, for the transfer of shares of Stock between the
two syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages as included in the registration statement and amendments
thereto as mentioned below. Except as used in Sections 2, 3, 4, 9 and 11 herein,
and except as the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
1. The Company and MONY represent and warrant to, and agree with, each
of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-63835)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement has heretofore been filed
with the Commission; and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or to the
Company's knowledge threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective or such
part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, each as amended at the time such part of
the Initial Registration Statement became effective, are hereinafter
collectively called the "Registration Statement"; and such final
prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did 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, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this
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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 an Underwriter through Xxxxxxx,
Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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; 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 an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(d) None of the Company, MONY or any of their subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, that has subjected or would subject the
Company, MONY and their subsidiaries taken as a whole to any material
liability or disability otherwise than as set forth or contemplated in
the Prospectus; and, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been any material decrease in the surplus of MONY or capital stock
of the Company or any material increase in the long-term debt of the
Company, MONY and their subsidiaries taken as a whole or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, reserves, surplus, shareholders' equity or results
of operations (in each case considered either on a statutory or U.S.
generally accepted accounting principles ("GAAP") basis) of the
Company, MONY and their subsidiaries, considered as a whole (a
"Material Adverse Effect"), otherwise than as set forth or contemplated
in the Prospectus;
(e) MONY and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as would not have a Material Adverse Effect and do
not interfere with the use made and proposed to be made of such
property by MONY and its subsidiaries; and any real property and
buildings held under lease by MONY and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by MONY and its
subsidiaries;
(f) MONY has been duly incorporated and is validly existing as
a mutual life insurance company in good standing under the laws of the
State of New York, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus; on the Plan Effective Date (as defined in the Plan) MONY
will be duly incorporated and validly existing as a stock life
insurance company in good standing under the laws of the State of New
York, with power and authority (corporate and other) to own its
property and conduct its business as described in the Prospectus; MONY
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such
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jurisdiction; the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each other subsidiary of MONY
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation;
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable; on the Plan Effective Date, MONY will
surrender to the Company and the Company will cancel all shares of
Stock previously issued by the Company to MONY and MONY will issue two
million common shares, par value $1.00 per share (the "MONY Common
Shares"), to the Company and such shares will have been duly and
validly authorized and issued and fully paid and non-assessable and
will be directly owned by the Company, free and clear of all liens,
encumbrances, equities or claims; and all of the issued shares of
capital stock of each other subsidiary of MONY have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares) are owned directly or
indirectly by MONY, free and clear of all liens, encumbrances, equities
or claims;
(h) The unissued Shares to be issued and sold by the Company
to the Underwriters and the International Underwriters hereunder and
under the International Underwriting Agreement and the Policyholder
Shares to be issued by the Company to Eligible Policyholders in the
Demutualization have been duly and validly authorized; and, when the
Shares are issued and delivered against payment therefor as provided
herein and in the International Underwriting Agreement and the
Policyholder Shares are issued and delivered to the Eligible
Policyholders in exchange for the Policyholders' Membership Interest in
the Demutualization, the Transaction Shares will be duly and validly
issued and fully paid and non-assessable and will conform in all
material respects to the description of the Stock contained in the
Prospectus; and the Transaction Shares have been approved for listing
on the New York Stock Exchange (the "Exchange"), subject to notice of
issuance, and at each Time of Delivery (as defined in Section 4)
hereunder, the Transaction Shares issued at or prior to such Time of
Delivery will be listed thereon;
(i) Each of MONY and each subsidiary of MONY that is required
to be organized or licensed as an insurance company in its jurisdiction
of incorporation (an "Insurance Subsidiary") is duly organized and
licensed as an insurance company in its respective jurisdiction of
incorporation and is duly licensed or authorized as an insurer in each
other jurisdiction where it is required to be so licensed or authorized
to conduct its business, in each case with such exceptions,
individually or in the aggregate, as would not have a Material Adverse
Effect; except as otherwise specifically described in the Prospectus,
each of MONY and each Insurance Subsidiary has all other approvals,
orders, consents, authorizations, licenses, certificates, permits,
registrations and qualifications ("Approvals") of and from all
insurance regulatory authorities to conduct their respective
businesses, with such exceptions, individually or in the aggregate, as
would not have a Material Adverse Effect; there is no pending or, to
the knowledge of MONY, threatened action, suit, proceeding or
investigation that could reasonably be expected to lead to the
revocation, termination or suspension of any such Approval, the
revocation, termination or suspension of which would have, individually
or in the aggregate, a Material Adverse Effect; and except as disclosed
in the Prospectus, no insurance regulatory agency or body has issued
any order or decree impairing, restricting or
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prohibiting the payment of dividends by any subsidiary to its parent
which would have, individually or in the aggregate, a Material Adverse
Effect;
(j) Each of MONY and each Insurance Subsidiary is in
compliance with the requirements of the insurance laws and regulations
of its respective jurisdiction of incorporation and the insurance laws
and regulations of other jurisdictions which are applicable to it, and
has filed all notices, reports, documents or other information
("Notices") required to be filed thereunder, in each case, with such
exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect;
(k) Each subsidiary of MONY which is engaged in the business
of acting as a broker-dealer or an investment advisor (the
"Broker-Dealer Subsidiaries" and "Investment Advisor Subsidiaries",
respectively) is duly licensed or registered as a broker-dealer or
investment advisor, as the case may be, in each jurisdiction (including
the United States) where it is required to be so licensed or registered
to conduct its business, in each case, with such exceptions,
individually or in the aggregate, as would not have a Material Adverse
Effect; each Broker-Dealer Subsidiary and Investment Advisor Subsidiary
has all other necessary Approvals of and from all applicable regulatory
authorities to conduct their respective businesses, in each case with
such exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; except as otherwise described in the
Prospectus, none of the Broker-Dealer Subsidiaries or Investment
Advisor Subsidiaries has received any notification from any applicable
regulatory authority to the effect that any additional Approvals from
such regulatory authority are needed to be obtained by such subsidiary
in any case where it could be reasonably expected that (x) any of the
Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries would in
fact be required either to obtain any such additional Approvals or
cease or otherwise limit engaging in certain business and (y) the
failure to have such Approvals or limiting such business would have a
Material Adverse Effect; and each Broker-Dealer Subsidiary and
Investment Advisor Subsidiary is in compliance with the requirements of
the applicable broker-dealer and investment advisor laws and
regulations of each jurisdiction which is applicable to such
subsidiary, and has filed all Notices required to be filed thereunder,
in each case with such exceptions, individually or in the aggregate, as
would not have a Material Adverse Effect;
(l) The issuance and delivery of the Policyholder Shares to
Eligible Policyholders in exchange for their respective Policyholders'
Membership Interests pursuant to the Demutualization are exempt from
the registration requirements of the Act;
(m) The issuance and sale of the Shares by the Company
hereunder and under the International Underwriting Agreement, the
issuance of the Policyholder Shares in the Demutualization, the
compliance by the Company, MONY and their subsidiaries with all of the
provisions of this Agreement, the International Underwriting Agreement
and the Plan and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which MONY or any of its subsidiaries is a
party or by which MONY or any of its subsidiaries is bound or to which
any of the property or assets of MONY or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or insurance
regulatory authority or other governmental agency or body having
jurisdiction over the Company, MONY or any of their subsidiaries or any
of their properties, in each case the effect of which (other than a
violation of the Charter and By-laws of the Company), individually or
in the aggregate, would be either to affect the
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validity of the Shares or the Policyholder Shares, their issuance or
the consummation of the transactions contemplated hereby, by the
International Underwriting Agreement or by the Plan, or have a Material
Adverse Effect; and no Approval of or with any such court or insurance
regulatory authority or other governmental agency or body and no filing
of any Notice pursuant to any such statute, order, rule or regulation
is required for the issuance and sale of the Shares by the Company
hereunder and under the International Underwriting Agreement, the
issuance of the Policyholder Shares in the Demutualization, the
compliance by the Company, MONY and their subsidiaries with this
Agreement, the International Underwriting Agreement and the Plan and
the consummation of the transactions contemplated by this Agreement,
the International Underwriting Agreement or the Plan, except (x) such
as have been obtained or made and are in full force and effect, (y)
such Approvals as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters and the International Underwriters and (z)
those in respect of which the failure to obtain, individually or in the
aggregate, would neither have a Material Adverse Effect nor affect the
validity of the Shares or the Policyholder Shares, their issuance or
the consummation of the transactions contemplated hereby, by the
International Underwriting Agreement or by the Plan;
(n) The Plan has been duly adopted by the required vote of the
Board of Trustees of MONY (which adoption complied in all material
respects with the applicable requirements of Section 7312) and
submitted to the New York Superintendent of Insurance (the "New York
Superintendent") in the manner and accompanied by all certificates
required by Section 7312 and conforms in all material respects to the
requirements of the laws of the State of New York applicable to the
conversion of mutual life insurance companies into stock life insurance
companies and any rules and regulations of the New York Superintendent
in respect thereof, in each case as administered or interpreted by the
New York Superintendent (collectively the "New York Reorganization Laws
and Regulations"), and the requirements of all other applicable laws;
the Plan was duly adopted on November 2, 1998 by a vote (the
"Policyholder Vote") of more than two-thirds of the votes validly cast
by Voting Policyholders (as defined in the Plan) (which adoption
complied in all material respects with the applicable requirements of
Section 7312) and such adoption has not been rescinded or otherwise
withdrawn; upon conclusion of the Policyholder Vote a certified copy of
the Plan was submitted by MONY to the New York Superintendent, in the
manner and accompanied by all certificates required by Section 7312; on
_____________, 1998 the Superintendent issued an order (subject to
appeal) approving the Plan in accordance with the requirements of
Section 7312 (the "Superintendent's Order"); no other Approvals are
required to be obtained under Section 7312 or otherwise for the
effectiveness of the Plan; a copy of the Plan with the New York
Superintendent's approval endorsed thereon has been filed by MONY in
the office of the New York Superintendent and a copy of the Plan
certified by the New York Superintendent has been filed by MONY with
the Clerk of New York County pursuant to Section 7312; on the Plan
Effective Date, the Plan will become effective in accordance with its
terms pursuant to Section 7312, and the Demutualization will be
completed in accordance with the Plan and the New York Reorganization
Laws and Regulations and the requirements of all other applicable laws;
and prior to the First Time of Delivery (as defined in Section 4) each
of the actions required to occur and conditions required to be
satisfied on or prior to the Plan Effective Date pursuant to the
Superintendent's Order or the Plan will have occurred or been
satisfied;
(o) Other than as described in the Prospectus, no legal or
governmental proceeding is pending or, to the best of the Company's and
MONY's knowledge, is currently being threatened challenging the Plan or
the consummation of the transactions contemplated thereby or the
offering of the Shares by the Underwriters and the International
Underwriters;
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(p) The policyholder information booklet mailed to
policyholders (the "Policyholder Information Booklet"), as of its date
and as of the dates of the public hearing on the Demutualization and
the Policyholder Vote, did 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, in light of the
circumstances under which they were made, not misleading;
(q) The Company has validly reserved for issuance the shares
of stock to be issued pursuant to the exercise of the Warrants (as
defined in the Prospectus) issued to the Investors (as defined in the
Prospectus), and, when such shares are issued upon exercise of the
Warrants, such shares will be duly and validly issued and fully paid
and non-assessable; the Company has duly authorized the issuance of the
Holding Company Subordinated Notes (as defined in the Prospectus); the
issuance of the shares of Stock issuable upon exercise of the Warrants,
the issuance of the Holding Company Subordinated Notes, the compliance
by the Company, MONY and their subsidiaries with all of the provisions
of the Investment Agreement (as defined in the Prospectus) and the
consummation of the transactions therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
MONY or any of its subsidiaries is a party or by which MONY or any of
its subsidiaries is bound or to which any of the property or assets of
MONY or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation
or By-laws of the Company or any statute or any order, rule or
regulation of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company, MONY
or any of their subsidiaries or any of their properties, in each case
the effect of which (other than a violation of the Charter and Bylaws
of the Company), individually or in the aggregate, would have a
Material Adverse Effect; and no Approval of or with any such court or
insurance regulatory authority or other governmental agency or body is
required for the issuance of the shares of stock issuable upon exercise
of the Warrants, the issuance of the Holding Company Subordinated
Notes, the compliance by the Company, MONY and their subsidiaries with
the Investment Agreement and the consummation of the transactions
therein contemplated except (x) such as have been obtained and are in
full force and effect, (y) such Approvals as may be required to be
obtained by the Investors and (z) those in respect of which the failure
to obtain would not have a Material Adverse Effect;
(r) Neither MONY nor any of its subsidiaries is in violation
of any of its organizational instruments or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, which
violation or default, individually or in the aggregate, would have a
Material Adverse Effect;
(s) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and under the captions
"The Demutualization", "Restrictions on Acquisitions of Securities of
the Holding Company", "Certain Provisions of the Amended and Restated
Certificate of Incorporation and the By-Laws of the Holding Company"
and "Certain United States Tax Consequences to Non-U.S. Holders of
Common Stock", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are true and complete in
all material respects;
(t) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which MONY or
any of its subsidiaries is a party or of which any property of MONY or
any of its subsidiaries is the subject which, if determined adversely
to MONY or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse
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Effect; and to the best of MONY's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(u) The pro forma condensed consolidated balance sheet and
condensed consolidated statements of income and the related notes
thereto set forth in the Registration Statement and the Prospectus have
been prepared in all material respects in accordance with the
applicable requirements of Rule 11-02 of Regulation S-X, have been
compiled on the pro forma basis described therein, and, in the opinion
of the Company and MONY, the assumptions used in the preparation
thereof were reasonable at the time made and the adjustments used
therein are based upon good faith estimates and assumptions believed by
the Company and MONY to be reasonable at the time made;
(v) The financial statements of each of MONY and its
consolidated subsidiaries and of the Company, together with the related
schedules and notes, set forth in the Registration Statement and the
Prospectus, comply in all material respects with the requirements of
the Act and present fairly in all material respects the financial
position, the results of operations and the changes in cash flows of
such entities in conformity with generally accepted accounting
principles at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have
been prepared in accordance with GAAP consistently applied throughout
the periods involved except for any normal year-end adjustments;
(w) The Company is not and, after giving effect to the
offering and sale of the Shares and the Demutualization, will not be an
"investment company", as such term is defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act");
(x) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes; and
(y) PriceWaterhouse Coopers L.L.P., who have certified certain
financial statements of MONY and its subsidiaries, are independent
public accountants as required by the Act and the rules and regulations
of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $___, the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto and (b) in the event and to
the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 1,425,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional
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Shares may be exercised only by written notice from you to the Company, given
within a period of 30 calendar days after the date of this Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined In Section 4 hereof)
or, unless you and the Company otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as Xxxxxxx, Xxxxx & Co. may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by
or on behalf of the Company to Xxxxxxx, Sachs & Co., through the
facilities of The Depository Trust Company ("DTC"), for the account of
such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire transfer of federal (same day)
funds to the account specified by the Company to Xxxxxxx, Xxxxx & Co.
at least forty eight hours in advance. The Company will cause the
certificates representing the Shares to be made available for checking
and packaging at least twenty-four hours prior to the Time of Delivery
(as defined below) with respect thereto at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares,
9:30 a.m., New York City time, on November __, 1998 or such other time
and date as Xxxxxxx, Sachs & Co. and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York
time, on the date specified by Xxxxxxx, Xxxxx & Co. in the written
notice given by Xxxxxxx, Sachs & Co. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as Xxxxxxx,
Sachs & Co. and the Company may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "First Time
of Delivery", such time and date for delivery of the Optional Shares,
if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a
"Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section 7(o) hereof, will be
delivered at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Closing Location"), and the Shares will be
delivered at the Designated Office, all at such Time of Delivery. A
meeting will be held at the Closing Location at 2:00 p.m., New York
City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Agreement, "New
York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to
close.
5. The Company and MONY agree with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by
you and to file such Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement,
or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus which shall be
reasonably disapproved by you promptly after reasonable notice thereof;
to advise you, promptly
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after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish you with copies thereof; to advise you, promptly after
it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the state securities laws and insurance securities laws of such
jurisdictions as you may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
become subject to taxation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 A.M. New York City time on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as you may reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus in order to comply with the Act to
notify you and upon your request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityhoIders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder and under the International
Underwriting Agreement and for the issuance of the Policyholder Shares
in the Demutualization, any Stock or securities of the Company that are
substantially similar to the Shares, including but not limited to any
securities that
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are convertible into or exchangeable for, or that represent the right
to receive, Stock, or any such substantially similar securities (other
than pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior
written consent;
(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Company
and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
non-confidential information concerning the business and financial
condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its shareholders generally or to
the Commission);
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement and the International
Underwriting Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(i) Prior to the First Time of Delivery, to use reasonable
best efforts to take all actions necessary in order to consummate the
Demutualization and the transactions contemplated by the Plan;
(j) To file with the Commission such information on Form 10-Q
or Form 10-K as may be required by Rule 463 under the Act; and
(k) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company and MONY covenant and agree with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the Demutualization and the registration of the Shares under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, the International
Underwriting Agreement, the Agreement between Syndicates, the Selling Agreement,
the Blue Sky Memorandum, closing documents (including any compilations thereof)
and any other documents in connection with the offering, purchase, sale and
delivery of the Shares; (iii) all expenses in connection with the qualification
of the Shares
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for offering and sale under state securities laws and insurance securities laws
as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey not to exceed $25,000;
(iv) all fees and expenses in connection with listing the Transaction Shares on
the New York Stock Exchange; (v) the filing fees incident to, and the reasonable
fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares not to exceed $25,000; (vi) the cost
of preparing stock certificates; (vii) the cost and charges of any transfer
agent or registrar; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and MONY herein are, at and as of such Time of Delivery (and
treating for such purposes all references in such representations, warranties
and statements to "MONY and its subsidiaries" and to subsidiaries of MONY as
references to the Company and its subsidiaries (including MONY Life Insurance
Company (the stock life insurance company successor to MONY as a result of the
Demutualization)) and to subsidiaries of the Company, respectively), true and
correct, the condition that the Company and MONY shall have performed all of
their obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M., Washington, D.C. time, on the date
of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction.
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall
have furnished to you such opinion or opinions, dated such Time of
Delivery, with respect to the incorporation and good standing of the
Company, the Shares being delivered at such Time of Delivery, this
Agreement, the Registration Statement and the Prospectus as well as
such other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Xxxxx Xxxxxxxxxx LLP, counsel for the Company and MONY,
shall have furnished to you their written opinion (a draft of such
opinion is attached as Annex II hereto), dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) MONY Life Insurance Company has been duly
incorporated and is validly existing as a stock life insurance
company in good standing under the laws of the State of
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New York, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus;
(iii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are or (with respect to the Shares
being delivered at such Time of Delivery, when paid for in
accordance with the terms hereof) will be fully paid and
nonassessable; the Policyholder Shares, when issued and
delivered to the Eligible Policyholders in exchange for the
Policyholders' Membership Interests in the Demutualization,
will be duly and validly issued and fully paid and
non-assessable; and the Transaction Shares conform in all
material respects to the description of the Stock contained in
the Prospectus;
(iv) To the best of such counsel's knowledge, other
than as described in the Prospectus, no legal or governmental
proceeding is pending or is currently being threatened
challenging the Plan or the consummation of the transactions
contemplated thereby or the offering of the Shares by the
Underwriters and the International Underwriters;
(v) Each of this Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by each of the Company and MONY;
(vi) The Plan has been duly adopted by the required
vote of the Board of Trustees of MONY (which adoption complied
in all material respects with the applicable requirements of
Section 7312) and submitted to the New York Superintendent in
the manner and accompanied by all certificates required by
Section 7312; no other Approvals are required to be obtained
under Section 7312 or otherwise under the New York
Reorganization Laws and Regulations for the effectiveness of
the Plan; and the Plan has become effective in accordance with
its terms;
(vii) The issuance and sale of the Shares being
delivered at such Time of Delivery by the Company, the
issuance of the Policyholder Shares in the Demutualization,
the compliance by the Company, MONY and their subsidiaries
with all of the provisions of this Agreement, the
International Underwriting Agreement and the Plan and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties which, other than
a breach or violation of the Certificate of Incorporation or
By-laws of the Company, individually or in the aggregate,
would have a Material Adverse Effect;
(viii) The Company and its subsidiaries have filed
all Notices required to be filed pursuant to, and have
obtained all Approvals required to be obtained under, either
(a) any law or regulation of the United States or New York or
(b) Delaware corporate law required for the issuance and sale
by the Company of the Shares, the issuance of the Policyholder
Shares in the Demutualization, the compliance by the Company,
MONY and their subsidiaries with all of the provisions of this
Agreement, the International Underwriting Agreement and the
Plan and the consummation of the transactions herein and
therein contemplated, except for such Notices and Approvals
(i) as may be required under state securities, insurance
securities or Blue Sky laws in connection with the purchase
and
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distribution of the Securities by the Underwriters, or (ii)
individually or in the aggregate, as would not affect the
validity of the Shares or the Policyholder Shares, their
issuance or the transactions contemplated by this Agreement or
the International Underwriting Agreement or have a Material
Adverse Effect;
(ix) The statements set forth in the Prospectus under
the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Stock, and
under the captions "The Demutualization", "Restrictions on
Acquisitions of Securities of the Holding Company" and
"Certain Provisions of the Amended and Restated Certificate of
Incorporation and the By-Laws of the Holding Company", insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are true and complete in all
material respects;
(x) The issuance and delivery of the Policyholder
Shares to Eligible Policyholders in exchange for their
respective Policyholders' Membership Interests pursuant to the
Plan are exempt from the registration requirements of the Act;
(xi) The Company is not an "investment company", as
such term is defined in the Investment Company Act; and
(xii) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules and financial and
accounting data therein, as to which such counsel need express
no opinion) comply as to form in all material respects with
the requirements of the Act and the rules and regulations
thereunder.
Such counsel shall also state that, although such
counsel do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those
referred to in the opinion in subsections (iii) and (ix) of
this Section 7(c), nothing has come to the attention of such
counsel which would lead such counsel to believe that, as of
its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules and financial and accounting data therein, as to
which such counsel need express no view) contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and financial and
accounting data therein, as to which such counsel need express
no view) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of such Time
of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and financial and
accounting data therein, as to which such counsel need express
no view) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a
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character required to be filed as an exhibit to the
Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed
or described as required;
(d) Xxxxxxx X. Xxxxxx, Esq., general counsel to the Company
and MONY, shall have furnished to you his written opinion (a draft of
such opinion is attached as Annex II(b) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company and each of its subsidiaries that
constitutes a "significant subsidiary" within the meaning of
Regulation S-X is duly qualified as a foreign corporation or
partnership to transact business and is in good standing in
each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires
such qualification, except where the failure to be so
qualified and in good standing would not, in any case or in
the aggregate, have a Material Adverse Effect;
(ii) All of the issued shares of capital stock of
each Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying or similar shares) are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iii) Each of MONY and MLOA is duly licensed as an
insurance company in its respective jurisdiction of
incorporation and is duly licensed or authorized as an insurer
in each other jurisdiction where it is required to be so
licensed or authorized to conduct its business as described in
the Prospectus, in each case with such exceptions,
individually or in the aggregate, as would not have a Material
Adverse Effect; except as otherwise specifically described in
the Prospectus, each of MONY and MLOA has all other Approvals
of and from all insurance regulatory authorities to conduct
their respective businesses, with such exceptions,
individually or in the aggregate, as would not have a Material
Adverse Effect; there is no pending or, to the knowledge of
such counsel, threatened action, suit, proceeding or
investigation that would lead to the revocation, termination
or suspension of any such Approval, the revocation,
termination or suspension of which would have, individually or
in the aggregate, a Material Adverse Effect; and to such
counsel's knowledge except as disclosed in the Prospectus, no
insurance regulatory agency or body has issued any order or
decree impairing, restricting or prohibiting the payment of
dividends by any subsidiary to its parent which would have,
individually or in the aggregate, a Material Adverse Effect;
(iv) To the knowledge of such counsel, each of MONY
and MLOA is in compliance in all material respects with the
requirements of the insurance laws and regulations of its
respective jurisdiction of incorporation and the insurance
laws and regulations of other jurisdictions which are
applicable to it, and has filed all Notices required to be
filed thereunder, in each case, with such exceptions,
individually or in the aggregate, as would not have a Material
Adverse Effect;
(v) Neither the Company nor any of its subsidiaries
is in violation of its Certificate of Incorporation or By-laws
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, which
violation or default, individually or in the aggregate, would
have a Material Adverse Effect;
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(vi) Each Broker-Dealer Subsidiary and each
Investment Advisor Subsidiary is duly licensed or registered
as a broker-dealer or investment advisor, as the case may be,
in each jurisdiction (including the United States) where it is
required to be so licensed or registered to conduct its
business, in each case, with such exceptions, individually or
in the aggregate, as would not have a Material Adverse Effect;
each Broker-Dealer Subsidiary and Investment Advisor
Subsidiary has all other necessary Approvals of and from all
applicable regulatory authorities to conduct their respective
businesses, in each case with such exceptions, individually or
in the aggregate, as would not have a Material Adverse Effect;
except as otherwise described in the Prospectus, to such
counsel's knowledge none of the Broker-Dealer Subsidiaries or
Investment Advisor Subsidiaries has received any notification
from any applicable regulatory authority to the effect that
any additional Approvals from such regulatory authority are
needed to be obtained by such subsidiary in any case where it
could be reasonably expected that (x) any of the Broker-Dealer
Subsidiaries or Investment Advisor Subsidiaries would in fact
be required either to obtain any such additional Approvals or
cease or otherwise limit engaging in certain business and (y)
the failure to have such Approvals or limiting such business
would have a Material Adverse Effect; and each Broker-Dealer
Subsidiary and Investment Advisor Subsidiary is, to the
knowledge of such counsel, in compliance in all material
respects with the requirements of the applicable broker-dealer
and investment advisor laws and regulations of each
jurisdiction which is applicable to such subsidiary, and has
filed all Notices required to be filed thereunder, with such
exceptions, individually or in the aggregate, as would not
have a Material Adverse Effect;
(vii) The issuance and sale of the Shares by the
Company hereunder and under the International Underwriting
Agreement, the issuance of the Policyholder Shares in the
Demutualization, the compliance by the Company, MONY and their
subsidiaries with all of the provisions of this Agreement, the
International Underwriting Agreement and the Plan and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any
order, rule or regulation of any court or insurance regulatory
authority or other governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties, in each case the effect of which
(other than a violation of the Charter and By-laws of the
Company) would be either to affect the validity of the Shares
or the Policyholder Shares, their issuance or the consummation
of the transactions contemplated hereby, by the International
Underwriting Agreement or by the Plan or have a Material
Adverse Effect; and no Approval of or with any such court or
insurance regulatory authority or other governmental agency or
body and no filing of any Notice pursuant to any such statute,
order, rule or regulation is required for the issuance of the
Policyholder Shares in the Demutualization, the compliance the
Company, MONY and their subsidiaries with the Plan and the
consummation of the transactions contemplated by the Plan,
except (x) such as have been obtained and are in full force
and effect and (y) those in respect of which the failure to
obtain, individually or in the aggregate, would neither have a
Material Adverse Effect nor affect the validity of the Shares
or the Policyholder Shares, their issuance or the consummation
of the transactions contemplated hereby, by the International
Underwriting Agreement or by the Plan;
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(viii) The issuance of the shares of Stock issuable
upon exercise of the Warrants, the issuance of the Holding
Company Subordinated Notes, the compliance by the Company,
MONY and their subsidiaries with all of the provisions the
Investment Agreement and the consummation of the transactions
therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any
order, rule or regulation known to such counsel of any court
or insurance regulatory authority or other governmental agency
or body having jurisdiction over the Company, MONY or any of
their subsidiaries or any of their properties, in each case
the effect of which (other than a violation of the Charter and
By-laws of the Company) would have a Material Adverse Effect;
and no Approval of or with any such court or insurance
regulatory authority or other governmental agency or body is
required for the issuance of the shares of stock issuable upon
exercise of the Warrants, the issuance of the Holding Company
Subordinated Notes, the compliance by the Company, MONY and
their subsidiaries with the Investment Agreement and the
consummation of the transactions therein contemplated except
(x) such as have been obtained and are in full force and
effect, (y) such Approvals as may be required to be obtained
by the Investors and (z) those in respect of which the failure
to obtain would not have a Material Adverse Effect;
(ix) To the best of such counsel's knowledge, other
than as described in the Prospectus, no legal or governmental
proceeding is pending or is currently being threatened
challenging the Plan or the consummation of the transactions
contemplated thereby or the offering of the Shares by the
Underwriters and the International Underwriters;
(x) To the best of such counsel's knowledge, other
than as set forth or contemplated in the Prospectus, there are
no legal or governmental proceedings pending to which MONY or
any of its subsidiaries is a party or of which any property of
MONY or any of its subsidiaries is the subject which, if
determined adversely to MONY or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse
Effect and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; and
Such counsel shall also state that, although such counsel does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, such
counsel has no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial statements and related
schedules and financial and accounting data therein, as to which such counsel
need express no view) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to such Time of Delivery (other than the financial statements and related
schedules and financial and accounting data therein, as to which such counsel
need express no view) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein and
financial and accounting, in the light of the circumstances under which they
were made, not misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than the
financial statements
-17-
18
and related schedules and financial and accounting data therein, as to which
such counsel need express no view) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and such counsel does not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which are not filed
or described as required;
(e) Xxxxxxxxxx & Park, LLP, special tax counsel to the Company
and MONY, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(c) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that
the statements set forth in the Prospectus under the caption "Certain
United States Tax Consequences to Non-U.S. Holders of Common Stock",
insofar as they purport to describe the provisions of the laws referred
to therein, are true and complete in all material respects;
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
such Time of Delivery, PriceWaterhouse Coopers L.L.P. shall have
furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex I hereto (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as Annex
I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b)
hereto);
(g) (i) Neither MONY, the Company nor any of their
subsidiaries shall have sustained since the date of the latest audited
financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any change in the surplus of MONY or the
capital stock of the Company or any increase in the long-term debt of
MONY, the Company or any of their subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, surplus, reserves,
stockholders' equity or results of operations of MONY, the Company and
their subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in Clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating of any debt security of the Company, MONY or any
of their subsidiaries or the financial strength or the claims paying
ability of the Company, MONY or any of their subsidiaries by A.M. Best
& Co. or any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of debt security or
the financial strength or the claims paying ability of the Company,
MONY or any of their subsidiaries;
-18-
19
(i) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(j) The Transaction Shares shall have been duly listed,
subject to notice of issuance, on the Exchange;
(k) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from the Investors substantially to the
effect set forth in Subsection 5(e) hereof in form and substance
satisfactory to you;
(l) The Company and MONY shall have complied with the
provisions of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of
this Agreement;
(m) The Demutualization shall have occurred;
(n) No appeal of the Superintendent's Order or other action
challenging the validity of the Demutualization or the approval thereof
shall have been filed and remain outstanding the effect of which, in
the judgment of the Representatives, makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus; and
(o) The Company and MONY shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of
the Company and MONY satisfactory to you as to the accuracy of the
representations and warranties of the Company and MONY herein at and as
of such Time of Delivery, as to the performance by the Company and MONY
of all of their obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a)
(except the last clause thereof), (g) (except the last clause thereof),
(m) and (n) (except the last clause thereof) of this Section and as to
such other matters as you may reasonably request.
8. (a) The Company and MONY, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the 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 Preliminary
Prospectus, the Registration Statement or the Prospectus, 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 each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company and MONY shall not be
liable 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
-19-
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alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) The Company and MONY, jointly and severally, also agree to
indemnify and hold harmless Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") and each person, if any, who controls Xxxxxx Xxxxxxx within
the meaning of either Section 15 of the Act, or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from
and against any and all losses, claims, damages, liabilities and
judgments incurred as a result of Xxxxxx Xxxxxxx'x participation as the
"independent underwriter" in connection with the public offering of the
shares at the request of the Company and MONY and in fulfillment of
their commitment to the New York Insurance Department, except for any
losses, claims, damages, liabilities, and judgments resulting from
Xxxxxx Xxxxxxx'x, or such controlling person's, willful misconduct.
(c) Each Underwriter will indemnify and hold harmless the
Company and MONY against any losses, claims, damages or liabilities to
which the Company or MONY may become subject, under the 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 Preliminary Prospectus, the Registration Statement or the
Prospectus, 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 any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company and MONY by such Underwriter through Xxxxxxx,
Sachs & Co. expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as
such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection except to the extent that the indemnifying party
is actually prejudiced by the failure to give such notice. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the
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 consent 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, the indemnifying party shall not be liable, except as provided
herein, to such indemnified party under such subsection 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.
Notwithstanding anything contained herein to the contrary, if indemnity
may be sought pursuant to subsection (b) above hereof in respect of
such action or proceeding, then in addition to counsel for the
indemnified parties, the indemnifying party shall be
-20-
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liable for the reasonable fees and expenses of not more than one
separate firm (in addition to any local counsel) for Xxxxxx Xxxxxxx in
its capacity as the "independent underwriter" and all persons, if any,
who control Xxxxxx Xxxxxxx within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act. 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. Unless an indemnifying
party shall have declined after notice of the commencement of any
action to participate in such action, no indemnified party shall,
without the written consent of the indemnifying party, which consent
shall not be unreasonably withheld, effect the settlement of any
action.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a), (b) or (c) above 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 benefits received
by the Company on the one hand and the Underwriters on the other from
the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and MONY on the one hand and
the Underwriters on the other 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 benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of
the Shares purchased under this Agreement (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares
purchased under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company and MONY on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company, MONY and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were
determined by pro rata allocation (even if the Underwriters 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 above in this subsection (e). 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 in this
subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (e), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Shares 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
-21-
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statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and MONY under this Section
8 shall be in addition to any liability which the Company or MONY may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of
the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters
may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and MONY.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time
of Delivery, you may in your discretion arrange for you or another
party or other parties to purchase such Shares on the terms contained
herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then
the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to
you to purchase such Shares on such terms. In the event that, within
the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company notifies
you that it has so arranged for the purchase of such Shares, you or the
Company shall have the right to postpone such Time of Delivery for a
period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the
Prospectus or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) lf, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-
eleventh of the aggregate number of all the Shares to be purchased at
such Time of Delivery, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery
and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such
defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of
Delivery, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 6
hereof and the indemnity and contribution
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agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, MONY and the several Underwriters, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or MONY, or any officer or director or controlling person of the Company or
MONY, and shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company and MONY shall not then be under any liability to any Underwriter
except as provided in Section 6 and 8 hereof, but if for any other reason, any
Shares are not delivered by or on behalf of the Company as provided herein, the
Company and MONY will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company and MONY shall then be under no further liability to any
Underwriter except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxx Xxxx, 0XX Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to the Company or MONY shall be delivered or sent by mail or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: General Counsel; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, MONY and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and MONY and
each person who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
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16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and MONY. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters (U.S. Version), the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
The MONY Group Inc.
By: ....................................
Name:
Title:
The Mutual Life Insurance Company of New York
By: ....................................
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Xxxxx Barney Inc.
By: .....................................................
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
-24-
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SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------------------- --------------------------
Xxxxxxx, Sachs & Co...........................................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ..................................................
Xxxxxx Xxxxxxx & Co. Incorporated ............................
Xxxxxxx Xxxxx Barney Inc. ....................................
--------- ---------
Total............................................... 9,500,000 1,425,000
========= =========
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ANNEX I
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to MONY and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of MONY for the periods
specified in such letter, as indicated in their reports thereon, copies
of which are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus as indicated in their reports thereon copies
of which are attached hereto and on the basis of specified procedures
including inquiries of officials of MONY who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations, nothing came to their attention that caused them
to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of
MONY for the five most recent fiscal years included in the Prospectus
agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such
five fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302
and 402, respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of MONY and its subsidiaries, inspection
of the minute books of MONY and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus,
27
inquiries of officials of MONY and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited consolidated financial statements
included in the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any
increases in the consolidated long-term debt of, or guaranteed
by, MONY and its subsidiaries, or interest maintenance,
investment or asset valuation reserves, or investments in
mortgage loans or real estate, or any decreases in
consolidated total surplus or unassigned funds (surplus),
investments in subsidiaries or common stock of subsidiaries or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with amounts shown in the latest statement of
financial position included in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (E) there were any
decreases in consolidated total premiums, annuity
considerations and fund deposits, or net gain from operations,
net income or other items specified by the Representatives, or
any increases in benefits and claims paid or surrenders and
withdrawals paid, or any other items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the
28
Representatives, except in each case for decreases or
increases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of MONY and its subsidiaries, which appear in the Prospectus, or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be
in agreement.
29
ANNEX II
[Form of Opinion of Xxxxx Xxxxxxxxxx LLP]
