1
EXHIBIT 1.1
THE MONY GROUP INC.
DEBT SECURITIES
----------
UNDERWRITING AGREEMENT
March 3, 2000
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time The MONY Group Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The Company is the parent holding company of MONY Life Insurance
Company (formerly, The Mutual Life Insurance Company of New York) ("MONY").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities
2
to be purchased by each Underwriter and shall set forth the date, time and
manner of delivery of such Designated Securities and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-94487)
(the "Initial Registration Statement") in respect of the Securities 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
or to be delivered to the Representatives and, excluding exhibits to
the Initial Registration Statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives 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 or document incorporated by reference therein has heretofore
been filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Act, each in the form heretofore delivered
to the Representatives); 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
threatened to the Company's knowledge by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement, any post-effective amendment thereto
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time
such part of the Initial Registration Statement became effective but
excluding Form T-1, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in
which it has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the
2
3
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Initial Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act after the effective date of
the Initial Registration Statement that is incorporated by reference in
the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of
the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
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; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; 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 of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, 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 Trust Indenture Act of 1939, as amended
(the "Trust Indenture 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 of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
3
4
(d) None of the Company, MONY or any of their subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
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 or incorporated by
reference in the Registration Statement and the Prospectus, there has
not been any material decrease in the surplus of MONY or any change in
the 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 basis 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 has been duly incorporated and is 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 properties 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 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;
(f) 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 and are fully
paid and non-assessable; and all of the issued shares of capital stock
of each subsidiary of MONY has 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, as the
case may be, free and clear of all liens, encumbrances, equities or
claims;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered against payment therefor
pursuant to this Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated
4
5
Securities will have been duly executed, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture subject, to
bankruptcy, insolvency, fraudulent conveyance, rehabilitation,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; which
will be substantially in the form filed as an exhibit to the
Registration Statement or incorporated by reference therein; the
Indenture has been duly authorized and duly qualified under the Trust
Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, to bankruptcy, insolvency,
fraudulent conveyance, rehabilitation, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture conforms, in all material
respects, and the Designated Securities will conform, in all material
respects, to the descriptions thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by
the Company, MONY and their subsidiaries with all of the provisions of
the Securities, the Indenture, this Agreement and any Pricing
Agreement, 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, MONY or any of their
subsidiaries is a party or by which the Company, MONY or any of their
subsidiaries is bound or to which any of the property or assets of the
Company, MONY or any of their 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 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 validity of the
Securities, their issuance or the consummation of the transactions
contemplated by the Indenture, this Agreement any Pricing Agreement or
have a Material Adverse Effect; and no approval, order, consent,
authorization, license, certificate, permit, registration or
qualification ("Approval(s)") of or with any such court or insurance
regulatory authority or other governmental agency or body and no filing
of any notice, report, document or any other information ("Notice(s)")
pursuant to any such statute, order, rule or regulation is required for
the issuance and sale of the Designated Securities by the Company
hereunder and under any Pricing Agreement, the compliance by the
Company, MONY and their subsidiaries with this Agreement, and any
Pricing Agreement and the consummation of the transactions contemplated
by this Agreement, the Indenture and any Pricing Agreement, except (x)
such as have been obtained or made and are in full force and effect,
(y) such Approvals as may be required under the Act, the Trust
Indenture Act, state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
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 Securities, their
5
6
issuance or the consummation of the transactions contemplated hereby,
by the Indenture and any Pricing Agreement;
(i) 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 or 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 materially 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 materially interfere with the
use made and proposed to be made of such property and buildings by MONY
and its subsidiaries;
(j) 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 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 the Company, 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 prohibiting the payment
of dividends by any subsidiary to its parent which would have,
individually or in the aggregate, a Material Adverse Effect;
(k) 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 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) 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
6
7
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 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;
(m) Other than as described in the Prospectus, no legal or
governmental proceeding is pending or, to the best of the Company's
knowledge, is currently being threatened challenging the offering of
the Securities by the Underwriters;
(n) Neither the Company, MONY nor any of their 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;
(o) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company, MONY or any of their subsidiaries is a party or of which any
property of the Company, MONY or any of their subsidiaries is the
subject which, if determined adversely to the Company, MONY, or any of
their subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and to the best of Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(p) The financial statements of the Company and its
consolidated subsidiaries, 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;
(q) The statements set forth in the Prospectus under the
captions "Description of the Senior Notes", insofar as they purport to
constitute a summary of the terms of the Securities are true and
complete in all material respects;
7
8
(r) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"); and
(s) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the Company to
the Representatives at least forty-eight hours in advance or at such other place
and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form reasonably
approved by the Representatives 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 the Pricing Agreement relating to the applicable Designated
Securities or, if applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after
the date of the Pricing Agreement relating to such Securities and prior
to the Time of Delivery for such Securities which shall be reasonably
disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Representatives,
promptly 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 with the Commission 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 prospectus relating to the
Securities, of the suspension of the qualification of such Securities
for offering or sale in any
8
9
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 such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the state securities laws and insurance
securities laws of such jurisdictions as the Representatives 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 such
Securities, 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 as amended or supplemented in such quantities as the
Representatives 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 Securities 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 same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives 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
Designated Securities 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 securityholders 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 of the Commission thereunder
(including, at the option of the Company, Rule 158);
9
10
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any debt securities of the Company
which mature more than one year after such Time of Delivery and which
are substantially similar to such Designated Securities, without the
prior written consent of the Representatives; and
(f) 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 covenants and agrees 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 registration of the Securities 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, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities 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 and Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to, and
the reasonable fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any Trustee
in connection with any Indenture and the Securities; 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, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such Designated
Securities,
10
11
true and correct, the condition that the Company shall have performed in all
material respects all of its obligations hereunder and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) 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 the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions dated the Time of Delivery for
such Designated Securities, with respect to the matters the Representatives 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) Counsel for the Company reasonably satisfactory to the
Representatives shall have furnished to the Representatives their written
opinion, dated the Time of Delivery for such Designated Securities, in form and
substance reasonably satisfactory to the Representatives, 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 jurisdiction of its incorporation, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented;
(ii) MONY has been duly incorporated and is validly
existing as a stock life insurance company in good standing
under the laws of the State of New York, with corporate power
and authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(iii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented and all
of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iv) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, no legal or
governmental proceeding is pending or is currently being
threatened challenging the offering of the Securities by the
Underwriters;
(v) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company;
(vi) The Designated Securities have been duly
authorized, executed, issued and delivered and, assuming due
authentication and delivery of the Designated Securities by the
Trustee in accordance with the Indenture and
11
12
payment therefor by the Underwriters as contemplated hereby and
by the Pricing Agreement related thereto, constitute valid and
legally binding obligations of the Company, subject, to
bankruptcy, insolvency, fraudulent conveyance, rehabilitation,
reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity
principles, entitled to the benefits provided by the Indenture;
and the Designated Securities and the Indenture conform, in all
material respects, to the descriptions thereof in the Prospectus
as amended or supplemented;
(vii) The Indenture has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee, and that the
Indenture is a valid and legally binding instrument of the
Trustee, enforceable against the Trustee in accordance with its
terms, constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its
terms, subject, to bankruptcy, insolvency, fraudulent
conveyance, rehabilitation, reorganization and other laws of
general applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(viii) The issue and sale of the Designated Securities
and the compliance by the Company, MONY and their subsidiaries
with all of the provisions of the Designated Securities, the
Indenture, this Agreement and the Pricing Agreement with respect
to the Designated Securities 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
New York or Federal statute or the Delaware General Corporation
Law or any order, rule or regulation known to such counsel or a
New York of Federal 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;
(ix) 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
General Corporation Law required for the issuance and sale by
the Company of the Securities, the qualification of the
Indenture under the Trust Indenture Act, the compliance by the
Company, MONY and their subsidiaries with all of the provisions
of this Agreement, the Indenture and any Pricing Agreement 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 distribution of the
Securities by the Underwriters, or (ii) individually or in the
aggregate, as would not affect the validity of the Securities,
their issuance or the transactions contemplated by this
Agreement or any Pricing Agreement or have a Material Adverse
Effect;
12
13
(x) The statements set forth in the Prospectus under
the captions "Description of the Senior Notes" insofar as they
purport to constitute a summary of the terms of the Designated
Securities are true and complete in all material respects;
(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 as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the financial
statements and related schedules and financial and accounting
data therein or incorporated by reference therein and the
documents incorporated by reference in the Prospectus and the
Registration Statement as amended and supplemented from time to
time, as to which such counsel need express no view) comply as
to form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and regulations
thereunder;
Such counsel shall also state that, although they 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 subsection
(x) 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 the Time of Delivery (other than
the financial statements and related schedules and financial and
accounting data therein or incorporated by reference and the documents
incorporated by reference in the Prospectus and the Registration
Statement as amended and supplemented from time to time, 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 as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and related
schedules and financial and accounting data therein or incorporated by
reference therein and the documents incorporated by reference in the
Prospectus and the Registration Statement as amended and supplemented
from time to time, 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 the Time of Delivery, (i) the Registration Statement as amended
or any further amendment thereto made by the Company prior to the Time
of Delivery (other than the financial statements and related schedules
and financial and accounting data therein or incorporated by reference
therein and the documents incorporated by reference in the Registration
Statement as amended from time to time, 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, not misleading; or (ii) the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the financial
statements and related schedules
13
14
and financial and accounting data therein or incorporated by reference
therein and the documents incorporated by reference in the Prospectus
as amended and supplemented from time to time, 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 any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described
in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
(d) The senior legal officer of the Company 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 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 MONY Life Insurance Company of
America ("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;
14
15
(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.
(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 Securities by the
Company hereunder and under any Pricing Agreement, the
compliance by the Company, MONY and their subsidiaries with all
of the provisions of this Agreement, the Indenture and any
Pricing Agreement 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 known to
such counsel to which the Company, MONY or any of their
subsidiaries is a party or by
15
16
which the Company, MONY or any of their subsidiaries is bound or
to which any of the property or assets of the Company, MONY or
any of their 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 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
Designated Securities, their issuance or the consummation of the
transactions contemplated hereby or by any Pricing Agreement 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 Designated Securities and the consummation
of the transactions contemplated hereby and by any Pricing
Agreement 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
Designated Securities, their issuance or the consummation of the
transactions contemplated hereby, or by any Pricing Agreement;
(viii) 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 offering of the Securities by the Underwriters;
(ix) To the best of such counsel's knowledge, other
than as set forth or contemplated in the Prospectus as amended
or supplemented, 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
(x) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules and financial and accounting
data therein or incorporated by reference therein, as to which
such counsel need express no view), when they became effective
or were filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder;
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, 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 the Time of Delivery (other than the financial
16
17
statements and related schedules and financial and accounting
data therein or incorporated by reference 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, as
amended or supplemented, or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules and
financial and accounting data therein or incorporated by
reference 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 the Time of
Delivery, (i) the Registration Statement as amended 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 or
incorporated by reference 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 not misleading or (ii) the Prospectus, as
amended or supplemented, 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 or incorporated by
reference 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 and nothing has
come to the attention of such counsel which would lead such
counsel to believe that any of the documents incorporated by
reference in the Prospectus as amended or supplemented; when
they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, 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, in the case of other documents which were filed
under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such
documents were so filed, not misleading (other than financial
statements and related schedules and financial and accounting
data therein or incorporated by reference therein, as to which
such counsel need express no view);
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants of the
17
18
Company who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
shall have furnished to the Representatives a letter, dated the effective date
of the Registration Statement or the date of the most recent report filed with
the Commission containing financial statements and incorporated by reference in
the Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter dated such
Time of Delivery, as to such other matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives (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);
(f) (i) None of the Company, MONY nor any of their subsidiaries
shall have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Securities 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 as amended prior to the date of the Pricing
Agreement relating to the Designated Securities, and (ii) since the respective
dates as of which information is given or incorporated by reference in the
Prospectus as amended prior to the date of the Pricing Agreement relating to the
Designated Securities there shall not have been any change in the surplus of
MONY or in the 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 change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, reserves, surplus,
shareholders' equity or results of operations of the Company, MONY and their
subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus as amended prior to the date of the Pricing Agreement relating to
the Designated Securities, 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 Designated Securities on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented relating
to the Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (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 debt security or the financial strength or the
claims paying ability of the Company, MONY or any of their subsidiaries;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities 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
18
19
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 Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(i) The Company 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; and
(j) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance in all
material respects by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (e) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company 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, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, 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 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
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives provided, further, that the
Company shall not be liable to any Underwriter under the indemnity agreement in
this subsection (a) with respect to any Preliminary Prospectus to the extent
that a court of competent jurisdiction has found by final and nonappealable
order that any such loss, claim, damage or liability of such Underwriter results
from the fact that such Underwriter sold Designated Securities to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus as then amended or supplemented (it being
understood that if at the time of
19
20
any such claim such Underwriter shall certify that it has sent or given the
Prospectus as then amended or supplemented to any person making such claim at or
prior to the written confirmation of such sale, it shall be presumed that such
Prospectus has been so sent or given unless the Company shall have sustained the
burden of proving, in a court of competent jurisdiction by a final and
nonappealable order, that the facts are otherwise), if (i) such delivery to such
person is required by Section 5 of the Act, (ii) the Company has furnished
copies of such Prospectus as amended or supplemented to such Underwriter a
reasonable period of time prior to the Underwriter being required so to deliver
such Prospectus as amended or supplemented and (iii) the untrue or alleged
untrue statement or omission or alleged omission of material fact contained in
the Preliminary Prospectus was corrected by such Prospectus as amended or
supplemented;
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company 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, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, 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, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives 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.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) 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 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
20
21
by such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party. 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.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) 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
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. 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 (c) 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 on the one hand and
the Underwriters of the Designated Securities 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 such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. 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 on the one hand
or such 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 and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) 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 (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) 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 (d),
no Underwriter shall be required to contribute any amount in excess of the
21
22
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company 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 to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, 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 the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities 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 as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives 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 the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed
22
23
to purchase under such Pricing Agreement) of the Designated Securities 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 Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
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 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 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 any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Sections 6 and 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
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 such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
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 the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex 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
23
24
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of the Underwriters and the Company and,
to the extent provided in Sections 8 and 10 hereof, the officers and directors
of the Company 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 or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
24
25
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
Very truly yours,
The MONY Group Inc.
By: /s/ Xxxxxxx Xxxxxxxx
..................................
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
25
26
ANNEX I
PRICING AGREEMENT
(See Exhibit 1.2)
27
ANNEX II
Pursuant to Section 7(d) 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 the Company and its subsidiaries within the meaning of the Act
and the applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Act
or the Exchange Act, as applicable, and the related rules and
regulations; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been separately
furnished to the representative or representatives of the Underwriters
(the "Representatives") such term to include an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives;
(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 and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquiries of officials of the Company 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 Exchange Act and
the related 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 Exchange
Act and the related rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with
the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for five such fiscal years
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
28
(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, 402 and 503(d),
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 the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Company 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 condensed consolidated statements
of income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published
rules and regulations adopted by the Commission, 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
or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference 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
or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
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 financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the rules
and regulations adopted by the Commission thereunder or the pro
forma adjustments
29
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 changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on the
date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity 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 balance sheet
included or incorporated by reference 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 or incorporated by reference in the Prospectus
to the specified date referred to in clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other
items specified by the Representatives, or any increases in any
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
Representatives, except in each case for increases or decreases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(vii) In addition to the audit referred to in their
report(s) included or incorporated by reference 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 audit 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 the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus 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.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
