As filed with the Securities and Exchange
Commission on December 7, 2001
Registration No. 333-72670
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE MONY GROUP INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-3976138
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1740 Broadway
New York, New York 10019
(Address, including zip code and telephone number,
including area code of Registrant's principal offices)
Bart Schwartz, Esq.
1740 Broadway
New York, New York 10019
(212) 708-2000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check following box.
[_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, checking the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
registration statement for the same offering. [_] __________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] __________
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to Proposed Maximum Offering Proposed Maximum Amount of
to be Registered be Registered (1) Price Per Share (2) Aggregate Offering Price Registration Fee (3)
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Common Stock, par value
$0.01 per share. 600,000 $31.10 $18,660,000 $4,665.00
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/1/The number of shares of Registrant's common stock being registered hereby
represents an estimate of the total number of shares to be issued to the Selling
Stockholders pursuant to an Agreement and Plan of Merger dated as of October 8,
2001 among the Registrant, certain selling stockholders and certain other
persons.
/2/Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, and based on the
average of the high and low sales prices of the Registrant's common stock on the
New York Stock Exchange on October 29, 2001.
/3/The Registrant previously paid this registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
DOCUMENT IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING
OFFERS TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 7, 2001.
PRELIMINARY PROSPECTUS
THE MONY GROUP INC.
534,514 SHARES
COMMON STOCK
This prospectus relates to the public offering, which is not being
underwritten, of 534,514 shares of our common stock. These shares of our common
stock will be held by the persons who are listed under the caption "Selling
Stockholders" below. These shares of our common stock were issued in connection
with an Agreement and Plan of Merger dated October 8, 2001 whereby we acquired
Lebenthal & Co., Inc.
The selling stockholders may choose to sell their shares of our common
stock from time to time on the New York Stock Exchange, at market prices
prevailing at the time of the sale, at prices related to the then prevailing
market prices, in privately negotiated transactions or through a combination of
these methods.
Our common stock is traded on the New York Stock Exchange under the symbol
"MNY." On December 6, 2001, the last reported sale price of our common stock
was $32.01.
An investment in our common stock involves certain risks. See the
discussion under the caption "Risk Factors" beginning on page 2.
_______________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED ON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_______________________
The date of this prospectus is ________, 2001
THE MONY GROUP INC.
We are a Delaware corporation. We are the parent holding company of MONY
Life Insurance Company (formerly, The Mutual Life Insurance Company of New York)
and The Advest Group, Inc. On November 16, 1998, pursuant to a plan of
reorganization which was approved by the New York Superintendent of Insurance,
The Mutual Life Insurance Company of New York converted from a mutual life
insurance company to a stock life insurance company and became our wholly-owned
subsidiary. We were organized on June 24, 1997, for the purpose of becoming the
parent holding company of MONY Life Insurance Company. Also, on November 16,
1998, The Mutual Life Insurance Company of New York changed its name to MONY
Life Insurance Company. At that same time, we completed an initial public
offering of approximately 12.9 million shares of our common stock. The shares of
common stock issued in our initial public offering are in addition to
approximately 34.3 million shares of common stock that we distributed in our
demutualization to some of our eligible policyholders in exchange for their
ownership interests in MONY Life Insurance Company. Through MONY Life Insurance
Company, The Advest Group, Inc. and our other subsidiaries, we provide life
insurance, annuities, mutual funds, brokerage, asset management, business &
estate planning, trust and investment banking products and services to
individual and institutional clients. Our products and services are distributed
through multiple distribution channels, including our career agency sales force,
brokerage general agencies, financial advisors, brokers and other complementary
distribution channels.
Our corporate offices are located at 1740 Broadway, New York, New York
10019 and our telephone number is (212) 708-2000.
USE OF PROCEEDS
The MONY Group Inc. will not receive any of the proceeds from the sale of
the shares of our common stock by the selling stockholders.
RISK FACTORS
You should carefully consider the following factors, in addition to the
other information provided in this prospectus and any applicable prospectus
supplement, before purchasing any of the securities.
DIVIDENDS AND DEBT SERVICE PAYMENTS MAY BE AFFECTED BY LIMITATIONS IMPOSED ON
MONY LIFE INSURANCE COMPANY
Substantially all of our business and operations are conducted through our
subsidiaries, which generate virtually all of our earnings and cash flow. The
assets of our company consist primarily of all of the outstanding shares of the
common stock of MONY Life Insurance Company, The Advest Group, Inc. and our
other subsidiaries. Our ongoing ability to pay dividends to our stockholders and
meet our obligations, including paying operating expenses and any debt service,
primarily depends upon the receipt of dividends from our subsidiaries and, in
particular, MONY Life Insurance Company. Any inability of our subsidiaries to
pay dividends to us in the future in an amount sufficient for us to pay
dividends to our stockholders and meet our other obligations, including debt
service obligations such as payments of principal, premium, if any, and interest
on any debt securities, may materially adversely affect our business, results of
operations and financial condition. The payment of dividends by MONY Life
Insurance Company is regulated under state insurance law. Under the New York
Insurance Law, MONY Life Insurance Company may pay a stockholder dividend to us
where the aggregate amount of such dividends in any calendar year does not
exceed the lesser of:
. ten percent of MONY Life Insurance Company's surplus to policyholders as of
the immediately preceding calendar year or
. MONY Life Insurance Company's gains from operations for the immediately
preceding calendar year, not including realized capital gains.
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Except for dividend distributions described in the preceding sentence, MONY Life
Insurance Company may pay a stockholder dividend to us only if it files notice
of its intention to declare a dividend and the amount of the dividend with the
New York Superintendent of Insurance. The New York Superintendent may prevent
the payment of such a dividend. Under the New York Insurance Law, the New York
Superintendent has broad discretion in determining whether the financial
condition of a stock life insurance company would support the payment of that
dividend. The New York Insurance Department has established informal guidelines
for the New York Superintendent's determinations that focus on, among other
things, an insurer's overall financial condition and profitability under
statutory accounting practices. From time to time, the National Association of
Insurance Commissioners and various state insurance regulators have considered,
and may in the future consider and adopt, proposals to further restrict the
making of dividend payments by an insurer without regulatory approval. MONY Life
Insurance Company's ability to pay dividends to us will be further restricted if
these types of proposals are enacted. We cannot assure you that MONY Life
Insurance Company or our other subsidiaries will be able to pay dividends to us
in an amount sufficient to fund our cash requirements, pay cash dividends and
service our debt.
THE DECLINE AND EXPIRATION OF PAYMENTS AND INCOME RELATED TO OUR GROUP PENSION
BUSINESS TRANSFERRED TO AEGON MAY REDUCE OUR PROFITS
On December 31, 1993, we entered into an agreement with AEGON USA, Inc.
Under the agreement, we transferred a substantial portion of our group pension
business to AEGON's wholly-owned subsidiary, AUSA Life Insurance Company, Inc.
The transaction was legally structured as a sale. However, for accounting
purposes, we continue to record the assets and liabilities comprising the
transferred business, and the related profits from the transferred business, in
our financial statements. The assets, liabilities and profits are recorded on
our financial statements because, pursuant to the terms of the agreement with
AEGON, we retained substantially all the risks and rewards of the transferred
business. On December 31, 1993, we also made a $200.0 million capital investment
in AEGON by purchasing $150.0 million face amount of Series A Notes and $50.0
million face amount of Series B Notes. The Series A Notes pay interest at 6.44%
per annum and the Series B Notes pay interest at 6.24% per annum. Both the
Series A and Series B Notes mature on December 31, 2002. Pursuant to the AEGON
agreement, we receive from AUSA: (1) payments on an annual basis through
December 31, 2002 equal to all of the earnings from the deposits on contracts in
force and transferred to AEGON on December 31, 1993; (2) a final payment at
December 31, 2002 based on the remaining fair value of the deposits on contracts
in force and transferred to AEGON on December 31, 1993; and (3) a contingent
payment at December 31, 2002 based on new business growth subsequent to December
31, 1993. However, it is unlikely that we will receive this payment because of
the high level of new business growth necessary in order to receive it. With
respect to the payments received in clause (1) above, the annual earnings from
the deposits are measured in accordance with an earnings formula contained in
the AEGON agreement. The earnings formula is substantially the same as generally
accepted accounting principals, except that:
. asset impairments on fixed maturity securities are only recognized when such
securities are designated with a rating of "6" by the National Association
of Insurance Commissioners and
. no impairment losses are recognized on mortgage loans until those loans are
disposed of or at the time, and in the calculation, of the final payment
referred to in clause (2) above.
Earnings from the deposits on contracts in force and transferred to AEGON
on December 31, 1993 calculated pursuant to the application of the earnings
formula described above are recorded in our financial statements only after
adjustments. These adjustments primarily recognize asset impairments in
accordance with generally accepted accounting principles, specifically,
Statements of Financial Accounting Standards Nos. 114 and 115. As adjusted, the
earnings or "group pension profits" are reported in accordance with generally
accepted accounting principles. Losses which arise from the application of the
earnings formula for any annual period will be reflected in our results of
operations (after adjustments to reflect such losses in accordance with
generally accepted accounting principles) only up to the amount for which we are
at risk (as described below), which at any time is equal to the then outstanding
principal amount of the Series A Notes. Operating losses reported in any annual
period pursuant to the earnings formula are carried forward to reduce any
earnings in subsequent years reported pursuant to the earnings formula. Any
resulting deficit remaining at December 31, 2002 will be deducted from the final
payment referred to in clause (2) above and the contingent payment referred to
in clause (3) above, if any. If a deficit still remains, it will be applied as
an offset against the principal payment we are due upon maturity of the
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Series A Notes. The Series A Notes have been allocated to the closed block. The
group pension profits have in the past represented a significant portion of our
net income. We expect that the payments referred to in clause (1) above and
related group pension profits for the years ending December 31, 2001 and
December 31, 2002 will continue to decline consistent with the continuing
run-off of the underlying business until these payments terminate as of December
31, 2002. Accordingly, our results of operations could be adversely affected
unless we take actions which will increase our revenue and net income subsequent
to December 31, 2002 to replace the group pension profits.
CHANGES IN INTEREST RATES MAY SIGNIFICANTLY AFFECT OUR PROFITABILITY
In periods of increasing interest rates, policy loans and surrenders and
withdrawals may tend to increase as policyholders seek investments with higher
perceived returns. This process may result in cash outflows requiring that we
sell invested assets at a time when the prices of those assets are adversely
affected by the increase in market interest rates, which may result in realized
investment losses. Conversely, during periods of declining interest rates, life
insurance and annuity products may be relatively more attractive investments,
resulting in increased premium payments on products with flexible premium
features, repayment of policy loans and increased persistency during a period
when our new investments carry lower returns. The profitability of certain of
our products with guaranteed interest rates could be adversely affected by a
significant decline in interest rates. In addition, borrowers may prepay or
redeem mortgages and bonds in our investment portfolio as they seek to borrow at
lower market rates, and we might have to reinvest those funds in lower
interest-bearing investments. Accordingly, during periods of declining interest
rates, a decrease in the spread between interest and dividend rates to
policyholders and returns on our investment portfolio may adversely affect our
profitability.
OUR INVESTMENT PORTFOLIO RAISES POTENTIAL RISKS THAT THE VALUE OF OUR INVESTMENT
PORTFOLIO WILL FLUCTUATE
Our investment portfolio consists primarily of fixed maturity securities,
equity securities, limited partnership interests, money market investments,
commercial mortgage loans, agricultural mortgage loans and real estate. The fair
value of these and our other invested assets fluctuates depending on general
economic and market conditions. In addition, we are also subject to credit risk
relating to the uncertainty associated with the continued ability of debtors to
make timely payments pursuant to the contractual terms underlying these
investments. With respect to our investments in fixed maturity securities and
commercial and agricultural mortgage loans, the market value of these
investments generally increases or decreases in an inverse relationship with
fluctuations in interest rates, and our net investment income increases or
decreases in direct relationship with interest rate changes. We may, from time
to time, for business, regulatory or other reasons, elect or be required to sell
some of our general account invested assets at a time when their fair values are
less than their carrying values, resulting in realized losses on investments,
which would reduce net income.
WRITEDOWNS OF FIXED MATURITY SECURITIES MAY ADVERSELY AFFECT OUR PROFITABILITY
A portion of our invested assets consist of fixed maturity securities. We
write down to fair value fixed maturity securities whose value is deemed other
than temporarily impaired. We record these writedowns as realized investment
losses and, accordingly, we reflect those writedowns in our results of
operations and we permanently adjust the cost basis of the respective assets to
reflect the impairment. In the past we have recorded investment losses as a
result of writedowns. There can be no assurance that we will not need to make
additional writedowns for impairment with respect to our fixed maturity
securities. Any of these writedowns may have a material adverse effect on our
financial position and results of operations.
PREPAYMENT OF OUR MORTGAGE BACKED SECURITIES MAY ADVERSELY AFFECT OUR
PROFITABILITY
Our fixed maturity securities include mortgage backed securities,
collateralized mortgage obligations and pass-through securities. These
securities are subject to prepayment risks that vary with, among other things,
interest rates. During periods of declining interest rates, mortgage backed
securities generally prepay faster as the underlying mortgages are prepaid and
are refinanced by the borrowers in order to take advantage of the lower rates.
Mortgage backed securities that we purchase at a premium because they have an
amortized cost that is greater than
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par, may experience a reduction in yield or a loss as a result of these
prepayments. In addition, during periods of declining interest rates, we will
generally be unable to reinvest the proceeds of the prepayment at comparable
yields. Conversely, during periods of rising interest rates, prepayments are
generally slow. Mortgage backed securities that we purchase at a discount
because they have an amortized value that is less than par, may experience a
decrease in yield or a loss as a result of slower prepayments.
GENERAL MARKET CONDITIONS MAY ADVERSELY AFFECT OUR INVESTMENTS IN LIMITED
PARTNERSHIPS
We have investments in many limited partnerships. Investment results for
this portfolio are dependent upon, among other things, general market conditions
for initial and secondary offerings of common stock. In the recent past we have
earned significant investment income from investments in limited partnership
interests. Due to the recent decline in general market conditions, near term
performance for this portfolio is expected to be materially lower than
performance for previous periods. There can be no assurance that the favorable
levels of investment performance achieved in previous periods on our limited
partnership investments will be achieved again in the future.
WE EXPECT TO TAKE RESTRUCTURING CHARGES AGAINST OUR EARNINGS
We are undertaking a reorganization of certain of our businesses designed to
improve our overall profitability by enhancing operating efficiency, generating
new revenue opportunities and more effectively allocating resources and capital.
As a result of this initiative, we expect to take a restructuring charge against
our fourth quarter 2001 earnings. This charge includes severance and
compensation for affected employees, discontinued real estate leases and certain
other charges. We also anticipate the inclusion of other charges that may result
from uncertain market conditions. We expect that this charge will have a
material adverse impact on our fourth quarter earnings and that this and any
future restructuring charges may adversely impact our common stock prices.
FLUCTUATIONS AND VOLATILITY IN MARKETS MAY RESULT IN DECLINES IN OUR REVENUES
Substantially all of the risk of fluctuation in market value of our
separate account assets is borne by the separate account contract holders. A
number of our policy charges for administering these separate account assets are
set as a percentage of market value of the assets. Accordingly, fluctuations in
the market value of these assets may result in declines in our revenue from
policy charges. Other assets under our management, including our mutual funds,
typically generate fees based on a percentage of their value. In addition, other
client assets consist of assets in brokerage accounts, on which we earn
commissions. Significant declines and volatility in the securities markets may
result in material reductions in revenues derived from asset management fees and
brokerage commissions.
WE MAY BE ADVERSELY AFFECTED BY THE DECLINE IN VALUE OF OUR REAL ESTATE HELD FOR
INVESTMENT
We are subject to the risk that our investments in real estate may decline
in value. We generally adjust the carrying value of real estate classified as
held for investment for declines in value whenever events or changes in
circumstances indicate that the carrying amount of the asset may not be
recoverable. We record these writedowns as realized investment losses, which
would reduce our net income.
INCREASES IN VALUATION ALLOWANCES WOULD REDUCE OUR NET INCOME
Once we identify a real estate property to be sold and commence a plan for
marketing the property, the property is classified as "to be disposed of" and,
if necessary, a valuation allowance is established to the extent that its fair
value minus associated selling costs is less than its current carrying value.
These valuation allowances are periodically revised, if necessary, to reflect
changes in fair value, except that, in no case will the carrying value of the
real estate property exceed its original cost. Increases in valuation allowances
serve to reduce our net income.
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WE MAY BE ADVERSELY AFFECTED BY THE DECLINE IN VALUE OF OUR COMMERCIAL MORTGAGE
LOAN INVESTMENTS
We are subject to the risk that our investments in commercial mortgage
loans will decline in value. Commercial mortgage loans are stated at their
unpaid principal balances, net of valuation allowances for decline in value. We
provide valuation allowances for commercial mortgage loans when it is probable
that we will be unable to collect all amounts due according to the contractual
terms of the loan agreement. Increases in valuation allowances are recorded as
realized investment losses and serve to reduce our net income.
THE EXPIRATION OF SURRENDER PENALTIES WITH RESPECT TO SOME OF OUR ANNUITIES
COULD RESULT IN SURRENDERS WHICH MAY REDUCE OUR PROFITS
We typically impose surrender charges on the annuities we sell. The
surrender charges enable us to recover unamortized policy acquisition costs in
the event that the annuity is surrendered before policy acquisition costs are
fully amortized. In addition, the surrender charges discourage contract
surrenders, which could require us to dispose of assets prematurely at a loss.
As surrender penalties expire it is likely that surrenders of single premium
deferred annuities and flexible payment variable annuities will increase. A
substantial increase in surrenders may reduce our profits.
WE MAY BE REQUIRED TO ADD ASSETS TO THE CLOSED BLOCK IN THE EVENT THAT THE
ASSETS THEREIN ARE NOT SUFFICIENT TO PAY GUARANTEED BENEFITS
The plan of demutualization requires MONY Life Insurance Company to
establish and operate a closed block for the benefit of certain policyholders
holding participating insurance policies of MONY Life Insurance Company. The
closed block is designed to give reasonable assurance with respect to policies
included in the closed block that assets will be available to maintain
policyholder dividend scales payable at the time we funded the closed block if
the experience underlying such dividend scales continues. The amount of assets
we allocated to the closed block is expected to produce cash flows which,
together with anticipated revenues from the policies included in the closed
block, are reasonably expected to be sufficient:
. for the payment of claims and surrender benefits, certain expenses and taxes,
and
. to provide for the continuation of the policyholder dividend scales payable
in 1998, if the experience underlying those scales continues.
The closed block assets, the cash flows generated by the closed block
assets and the anticipated revenues from the policies in the closed block will
benefit only the holders of those policies, and will not be available to us or
our stockholders. We cannot assure you that the closed block assets, the cash
flows generated by the closed block assets and the anticipated revenues from the
policies included in the closed block will be sufficient to provide for the
benefits guaranteed under these policies. If they are not sufficient, we must
fund the shortfall. Even if they are sufficient, we may choose, for competitive
reasons, to support policyholder dividend payments with our general account
funds. We have allocated the Series A Notes described above to the closed block.
We will reimburse the closed block from our general account assets for any
reduction in principal payments due on the Series A Notes pursuant to their
terms. In addition, as described below, there is currently pending litigation
against us which seeks to require us to increase the assets in the closed block.
LITIGATION CHALLENGING THE NEW YORK SUPERINTENDENT'S ORDER APPROVING THE PLAN OF
DEMUTUALIZATION MAY HAVE A MATERIAL ADVERSE EFFECT ON US
On November 16, 1999, The MONY Group Inc. and MONY Life Insurance Company
were served with a complaint in an action entitled Calvin Chatlos, M.D., and
Alvin H. Clement, On Behalf of Themselves And All Others Similarly Situated v.
The MONY Life Insurance Company, The MONY Group Inc., and Neil D. Levin,
Superintendent, New York Department of Insurance, filed in the United States
District Court for the Southern District of New York. The action purported to be
brought as a class action on behalf of all individuals who had an
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ownership interest in one or more in-force life insurance policies issued by
MONY Life Insurance Company as of November 16, 1998. The complaint, which was
dismissed voluntarily in early 2000, alleged that (i) the New York
Superintendent of Insurance, Neil D. Levin, violated Section 7312 of the New
York Insurance Law by approving the plan of demutualization, which plaintiffs
claim was not fair and adequate, primarily because it allegedly failed to
provide for sufficient assets for the mechanism established under the plan to
preserve reasonable policyholder dividend expectations of the closed block, and
(ii) we violated Section 7312 by failing to develop and submit to the
Superintendent a plan of demutualization that was fair and adequate. The
plaintiffs sought equitable relief in the form of an order vacating and/or
modifying the Superintendent's order approving the plan of demutualization
and/or directing the Superintendent to order us to increase the assets in the
closed block, as well as unspecified monetary damages, attorneys' fees and other
relief. On March 27, 2000, plaintiffs filed a new action in New York State
Supreme Court bearing the same caption and naming the same defendants as the
previously filed federal action. The state court complaint differs from the
complaint previously filed in federal court in two primary respects. First, it
no longer asserts a claim for damages against the Superintendent, nor does its
prayer for relief seek entry of an order vacating or modifying the
Superintendent's decision or requiring the Superintendent to direct us to place
additional assets into the closed block. Rather, it seeks an accounting and an
order from the Court directing us to transfer additional assets to the closed
block. Second, the new complaint contains claims for breach of contract and
fiduciary duty, as well as new allegations regarding the adequacy of the
disclosures contained in the Policyholder Information Booklet distributed to
policyholders soliciting their approval of the plan of demutualization (which
plaintiffs claim violated both the New York Insurance Law and our fiduciary
duties). We and the Superintendent moved to dismiss the state court complaint in
its entirety on a variety of grounds. On April 20, 2001, the New York Supreme
Court granted both motions and dismissed all claims against us and the
Superintendent. On June 29, 2001 plaintiffs filed a Notice of Appeal with the
New York Appellate Division, appealing the dismissal of the claims against us
and the Superintendent. We intend to defend ourselves vigorously against
plaintiffs' appeal. However, an adverse outcome to the present litigation could
have a material adverse effect on us.
LITIGATION WITH RESPECT TO OUR SALES PRACTICES MAY AFFECT OUR PROFITABILITY
Since late 1995 a number of purported class actions have been commenced in
various state and federal courts against us alleging that we engaged in
deceptive sales practices in connection with the sale of whole and universal
life insurance policies from the early 1980s through the mid 1990s. Although the
claims asserted in each case are not identical, they seek substantially the same
relief under essentially the same theories of recovery (i.e., breach of
contract, fraud, negligent misrepresentation, negligent supervision and
training, breach of fiduciary duty, unjust enrichment and violation of state
insurance and/or deceptive business practice laws). Plaintiffs in these cases
seek primarily equitable relief (e.g., reformation, specific performance,
mandatory injunctive relief prohibiting us from canceling policies for failure
to make required premium payments, imposition of a constructive trust and
creation of a claims resolution facility to adjudicate any individual issues
remaining after resolution of all class-wide issues) as opposed to compensatory
damages, although they also seek compensatory damages in unspecified amounts. We
have answered the complaints in each action (except for one being voluntarily
held in abeyance). We have denied any wrongdoing and have asserted numerous
affirmative defenses. On June 7, 1996, the New York State Supreme Court
certified one of those cases, Goshen v. The Mutual Life Insurance Company of New
York and MONY Life Insurance Company of America, the first of the class actions
filed, as a nationwide class consisting of all persons or entities who have, or
at the time of the policy's termination had, an ownership interest in a whole or
universal life insurance policy issued by us and sold on an alleged "vanishing
premium" basis during the period January 1, 1982 to December 31, 1995. On March
27, 1997, we filed a motion to dismiss or, alternatively, for summary judgment
on all counts of the complaint. All of the other putative class actions have
been consolidated and transferred by the Judicial Panel on Multidistrict
Litigation to the United States District Court for the District of Massachusetts
and/or are being held in abeyance pending the outcome of the Goshen case. On
October 21, 1997, the New York State Supreme Court granted our motion for
summary judgment and dismissed all claims filed in the Goshen case against us.
On December 20, 1999, the New York State Court of Appeals affirmed the dismissal
of all but one of the claims in the Goshen case (a claim under New York's
General Business Law), which has been remanded back to the New York State
Supreme Court for further proceedings consistent with the opinion. The New York
State Supreme Court has subsequently reaffirmed that, for purposes of the
remaining New York General Business Law claim, the class is now limited to New
York purchasers only, and has further held that the New York General Business
Law claims of all class members whose claims accrued prior to November 29, 1992
are barred by the applicable statute of limitations. We intend to defend
ourselves vigorously against the sole remaining claim. However, an adverse
outcome to the present litigation could have a material adverse effect on us.
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VARIATIONS IN CLAIMS EXPERIENCE WILL AFFECT OUR RESULTS FROM PERIOD TO PERIOD
An insurance company's earnings significantly depend upon the timing and
amount of claims paid under its insurance contracts. Consequently, MONY Life
Insurance Company's earnings will vary from period to period. depending upon the
amount of claims incurred in the relevant periods. Therefore, there is limited
predictability of claims experience within any given month or year. As a result,
we anticipate that our financial results may vary from period to period and that
those variations may be material in any given period. We use certain assumptions
in pricing our products. There can be no assurance that actual experience will
match our assumptions made for pricing purposes and, to the extent that they
differ, our operating results could be materially adversely affected.
WE OPERATE IN A HIGHLY REGULATED INDUSTRY
Our insurance business is subject to comprehensive state regulation and
supervision throughout the U.S. The primary purpose of such regulation is to
protect policyholders, not securityholders. The laws of the various states
establish insurance departments with broad powers with respect to:
. licensing companies to transact business;
. licensing agents;
. admitting statutory assets;
. mandating certain insurance benefits;
. regulating premium rates;
. approving policy forms;
. regulating unfair trade and claims practices;
. regulating advertising;
. establishing statutory reserve requirements and solvency standards;
. fixing maximum interest rates on life insurance policy loans and minimum
rates for accumulation of surrender values;
. restricting certain transactions between affiliates;
. regulating the distribution of dividends; and
. regulating the types, amounts and statutory valuation of investments.
The U.S. Federal government does not directly regulate the insurance
business. However, Federal legislation and administrative policies in certain
areas can significantly and adversely affect the insurance industry generally
and us in particular. These areas include employee benefit plan regulation,
financial services regulation and Federal taxation and securities laws. MONY
Life Insurance Company, some of its subsidiaries and some policies and contracts
offered by them are subject to various levels of regulation under the Federal
securities laws administered by the Securities and Exchange Commission. These
laws and regulations are primarily intended to protect investors in securities
and generally grant supervisory agencies broad administrative powers, including
the power to limit or restrict the conduct of business for failure to comply
with such laws and regulations. We may also be subject to similar laws and
regulations in the states our subsidiaries provide investment advisory services,
offer products or conduct other securities-related activities. All of these
regulations may limit our freedom of action.
CHANGES IN STATE AND FEDERAL REGULATION MAY AFFECT OUR PROFITABILITY
State insurance regulators and the National Association of Insurance
Commissioners continually reexamine existing laws and regulations, and may
impose changes in the future. Additionally, the passage from time to time of new
legislation may adversely affect our claims exposure on our policies. We cannot
predict the impact of future state or Federal laws or regulations on our
business. Future laws and regulations, or the interpretation thereof, may
materially adversely affect our business, results of operations and financial
condition.
WE MAY BE UNABLE TO ATTRACT AND RETAIN AGENTS TO SELL OUR PRODUCTS
We must attract and retain productive agents to sell our insurance and
annuity products. Strong competition exists among insurance companies for agents
with demonstrated ability. Our management believes that key bases of competition
among insurance companies for agents with demonstrated ability include a
company's
8
financial position and the services provided to, and relationships developed
with, these agents in addition to compensation and product structure. Changes
arising from the realignment of our career agency sales force, the restructuring
of agent compensation and the ability to obtain state regulatory approvals for
new products may affect our ability to retain productive distributors of our
individual insurance and annuity products. Sales of individual insurance and
annuity products and our financial position and results of operations could be
materially adversely affected by those changes.
COMPETITIVE FACTORS MAY ADVERSELY AFFECT OUR BUSINESS
The insurance industry is highly competitive and has experienced severe
price competition over the last several years. We compete with a large number of
other insurers, as well as non-insurance financial services companies, such as
banks, broker-dealers and asset managers, for customers and agents and other
distributors of insurance and investment products. Some of these companies offer
a broader array of products, have more competitive pricing or, with respect to
other insurers, have higher claims paying ability ratings. Some may also have
greater financial resources with which to compete.
COMPETITION FROM NON-INSURANCE FINANCIAL SERVICES COMPANIES MAY ADVERSELY AFFECT
OUR BUSINESS
National banks, with their pre-existing customer bases for financial
services products, may increasingly compete with insurers, as a result of court
cases that permit national banks to sell annuity products of life insurance
companies in some circumstances. In addition there has been recently enacted
legislation removing restrictions on bank affiliations with insurers. This
legislation, the Gramm-Leach-Bliley Act of 1999, permits mergers that combine
commercial banks, insurers and securities firms under one holding company. Until
passage of the Gramm-Leach-Bliley Act, the Glass-Steagall Act of 1933 had
limited the ability of banks to engage in securities-related businesses, and the
Bank Holding Company Act of 1956 had restricted banks from being affiliated with
insurance companies. The ability of banks to affiliate with insurance companies
and to offer annuity products of life insurance companies may materially
adversely affect all of our product lines by substantially increasing the
number, size and financial strength of potential competitors.
A DOWNGRADE IN OUR RATINGS MAY ADVERSELY AFFECT OUR ABILITY TO MARKET OUR
PRODUCTS AND RETAIN OUR CURRENT POLICYHOLDERS
Claims-paying ability and financial strength ratings are an important
factor in establishing the competitive position of insurance companies. Ratings
are important to maintaining public confidence in our company and in our ability
to market our products. Rating organizations continually review the financial
performance and condition of insurance companies, including our company. Any
downgrade in our ratings could have a material adverse effect on our ability to
market our products and retain our current policyholders. These consequences
could, depending upon their extent, have a material adverse effect on our
liquidity and, under some situations, net income.
CHANGES IN FEDERAL INCOME TAXATION COULD ADVERSELY IMPACT SALES OF OUR
INSURANCE, ANNUITIES AND INVESTMENT PRODUCTS
Current Federal income tax laws generally defer income tax on any
accumulation of earnings on the premiums paid by the holders of annuities and
life insurance products. Taxes, if any, are payable when earnings are actually
paid. Congress has, from time to time, considered possible legislation that
would eliminate this deferral of taxation for certain annuities and life
insurance products. Enactment of other possible legislation, including a
simplified "flat tax" income structure with an exemption from taxation for
investment income and elimination of, or reduction in, the estate tax, could
also adversely affect purchases of life insurance. For example, Congress in 2001
enacted legislation providing estate tax reduction. At this time, we cannot
foresee whether such tax reduction will have an adverse effect on our life
insurance and annuity products. We also cannot foresee whether Congress will
enact legislation or, whether such legislation, if enacted, will contain
provisions with possible adverse effects on our life insurance and annuity
products.
9
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. Our SEC filings are
available to the public over the internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file with the SEC
at its public reference facilities at:
450 Fifth Street, N.W. Citicorp Center
Washington, DC 20549 500 West Madison Street
Suite 1400
Chicago, Illinois 60661
You may also obtain copies of this information at prescribed rates by
writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Washington, D.C., 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference facilities. Our SEC filings
are also available at the office of the New York Stock Exchange. For further
information on obtaining copies of our public filings at the New York Stock
Exchange you should call (212) 656-5060.
The SEC allows us to "incorporate by reference" information into this
prospectus which we file with the SEC. This means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus and
information that we file later with the SEC will automatically update and
supersede the information in this prospectus.
We incorporate by reference the documents listed below that we previously
filed with the SEC:
. Annual Report on Form 10-K for the fiscal year ended December 31,
2000.
. Quarterly Reports on Form 10-Q for the quarterly periods ended March
31, 2001, June 30, 2001 and September 30, 2001.
. Current Reports on Form 8-K filed on January 5, 2001, February 7,
2001, February 9, 2001, March 19, 2001, May 8, 2001, June 1, 2001,
August 7, 2001, October 18, 2001, November 8, 2001 and November 14,
2001.
. The description of our capital stock contained in our Registration
Statement on Form 8-A, File No. 001-14603, filed with the SEC on
November 6, 1998, including any further amendments or reports filed
for the purpose of updating such description.
You may request a free copy of any of these filings or any other
information incorporated by reference in this prospectus from us by calling us
or writing to us at the following address and telephone number:
The MONY Group Inc.
1740 Broadway
New York, New York 10019
Attention: Jay A. Davis
Telephone: (212) 708-2000
We also incorporate by reference any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
(1) after the date of the filing of the registration statement and before its
effectiveness and (2) until we have sold all of the securities to which this
prospectus relates or the offering is otherwise terminated. Our subsequent
filings with the SEC will automatically update and supersede information in this
prospectus.
You should rely only on the information contained in this document,
incorporated by reference into this document or set forth in the applicable
prospectus supplement. We have not authorized anyone to give you different
information. Therefore, if anyone does provide you with different or
inconsistent information, you should not rely on it. We may only use this
prospectus to sell securities if it is accompanied by a prospectus supplement.
We are
10
only offering these securities in states where the offer is permitted. The
information contained in this prospectus and the applicable prospectus
supplement speaks only as of the dates on the front of those documents.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the information included and incorporated by reference in this
prospectus and other written and oral statements made from time to time by us
contain "forward-looking statements" as defined by the Private Securities
Litigation Reform Act of 1995. Forward-looking statements include, among other
things, discussions concerning our potential exposure to market risks, as well
as statements expressing our expectations, beliefs, estimates, forecasts,
projections and assumptions. Forward-looking statements can be identified by the
use of words such as "anticipate," "believe," "estimate," "expect," "intend,"
"may," "could," "possible," "plan," "project," "will," "forecast" and similar
words or expressions. Forward-looking statements are only predictions. Our
forward-looking statements generally relate to our operations, economic
performance and financial condition. You should carefully consider
forward-looking statements and understand that actual events or results may
differ materially as a result of a variety of risks and uncertainties, known and
unknown, and other factors facing our company. Many of those factors are noted
in conjunction with the forward-looking statements in the text. It is not
possible to foresee or identify all factors affecting our forward-looking
statements and investors therefore should not consider any list of factors
affecting our forward-looking statements to be an exhaustive statement of all
risks or uncertainties. Although we cannot give a comprehensive list of all
factors that may cause actual results to differ from our forward-looking
statements, the factors include those noted in our SEC filings incorporated by
reference into this prospectus, those discussed in this prospectus under the
caption "Risk Factors," any included in an accompanying prospectus supplement,
as well as:
. losses with respect to our equity real estate, and the success of our
continuing process of selectively selling our equity real estate;
. successful implementation of our recently-announced reorganization of MONY
Life Insurance Company;
. our ability to control operating expenses;
. the outcome of pending litigation;
. deterioration in the experience of the "closed block" established in
connection with the demutualization of our subsidiary MONY Life Insurance
Company;
. the performance of the financial markets;
. the intensity of competition from other financial institutions;
. our mortality, morbidity, persistency and claims experience;
. our ability to develop, distribute and administer competitive products and
services in a timely, cost-effective manner;
. our financial and claims paying ratings;
. the effect of changes in laws and regulations affecting our businesses,
including changes in tax laws affecting insurance and annuity products;
. market risks related to interest rates, equity prices, derivatives, foreign
currency exchange and credit;
. the continuing impact on general economic, business and market conditions
of recent terrorist acts, including the September 11, 2001 terrorist
attacks; and
. our ability to identify and consummate on successful terms any future
acquisitions, and to successfully integrate acquired businesses with
minimal disruption.
11
THE SELLING STOCKHOLDERS
The selling stockholders were issued a total of 534,514 shares of
common stock by The MONY Group Inc. on November 30, 2001. We list below
with respect to the selling stockholders (1) the number of shares of our common
stock beneficially owned as of November 30, 2001 and prior to the offering
covered by this prospectus, (2) the maximum number of shares of our common stock
which may be sold in the offering and (3) the number of shares of our common
stock which will be beneficially owned after the offering, assuming the sale of
all the shares set forth in (2) above.
---------------------------------------------------------------------------------------------------------
Beneficial Ownership Beneficial Ownership
Selling Stockholder Prior to Offering Shares to be Sold After the Offering
------------------- ----------------- ----------------- ------------------
Shares Percentage in Offering Shares Percentage
------ ---------- ----------- ------ ----------
---------------------------------------------------------------------------------------------------------
James A. Lebenthal 131,759 * 131,759 0 ---
---------------------------------------------------------------------------------------------------------
Eleanor Lebenthal Bissinger 61,046 * 61,046 0 ---
---------------------------------------------------------------------------------------------------------
James A. Lebenthal Family
Irrevocable Trust 52,030 * 52,030 0 ---
---------------------------------------------------------------------------------------------------------
H. Gerard Bissinger III 47,184 * 47,184 0 ---
---------------------------------------------------------------------------------------------------------
Ann Louise Bissinger Poor 47,184 * 47,184 0 ---
---------------------------------------------------------------------------------------------------------
Alexandra Lebenthal 33,170 * 33,170 0 ---
--------------------------------------------------------------------------------------------------------
James B. Lebenthal 31,456 * 31,456 0 ---
---------------------------------------------------------------------------------------------------------
Claudia Lebenthal 31,456 * 31,456 0 ---
---------------------------------------------------------------------------------------------------------
Jeffrey M. James 27,419 * 27,419 0 ---
---------------------------------------------------------------------------------------------------------
James E. McGrath 17,137 * 17,137 0 ---
---------------------------------------------------------------------------------------------------------
Duncan K. Smith 14,567 * 14,567 0 ---
---------------------------------------------------------------------------------------------------------
D. Warren Kaufman 11,996 * 11,996 0 -
---------------------------------------------------------------------------------------------------------
Denis M. Galle 9,962 * 7,712 2,250 *
---------------------------------------------------------------------------------------------------------
Dennis M. Corrigan 5,141 * 5,141 0 ---
---------------------------------------------------------------------------------------------------------
Gerald H. Tankersley 4,456 * 4,456 0 ---
---------------------------------------------------------------------------------------------------------
Gregory W. Serbe 1,714 * 1,714 0 ---
---------------------------------------------------------------------------------------------------------
Emily Wechsler 1,371 * 1,371 0 ---
---------------------------------------------------------------------------------------------------------
Jack Klein 1,200 * 1,200 0 ---
---------------------------------------------------------------------------------------------------------
Harry Weiss 1,029 * 1,029 0 ---
---------------------------------------------------------------------------------------------------------
James P. Dillon 857 * 857 0 ---
---------------------------------------------------------------------------------------------------------
Laban Levine 857 * 857 0 ---
---------------------------------------------------------------------------------------------------------
Amy Caster 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
Gail S. Levine 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
Jane Glucksman Wasserstrom 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
Joan Rusch 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
Karen A. Crovicz 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
Katie Schachter Wedeen 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
Lisa Santo 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
Melvin P. Cohn 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
Patrick Murphy 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
Phillip E. Leibowitz 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
Suzanne Akian 343 * 343 0 ---
---------------------------------------------------------------------------------------------------------
----------------------------
* Less than 1%
12
PLAN OF DISTRIBUTION
The selling stockholders may choose to sell their shares of The MONY
Group Inc. common stock from time to time on the New York Stock Exchange, at
market prices prevailing at the time of the sale, at prices related to the then
prevailing market prices, in privately negotiated transactions or through a
combination of these methods. In addition, these selling stockholders may choose
to sell their shares in one or more of the following alternative transactions:
. a block trade in which a broker or dealer will attempt to sell the shares as
agent but may position and resell a portion of the block as principal in
order to facilitate the transaction;
. purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this prospectus; and
. ordinary brokerage transactions and transactions in which the broker solicits
purchasers.
In addition, the selling stockholders may transact in exchange-traded
put or call options with respect to our common stock in which they settle
through delivery of shares of our common stock offered for sale by this
prospectus.
The selling stockholders and any broker-dealers who act in connection
with the sale of their shares of our common stock under this prospectus may be
deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933 and any commissions received by them and profit on any
resale of their shares of our common stock as principals might be deemed to be
underwriting discounts and commissions under the Securities Act. We have agreed
to indemnify the selling stockholders against certain liabilities, including
liabilities under the Securities Act of 1933 as underwriters or otherwise.
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Annual Report on Form 10-K for the year ended December 31, 2000, have
been so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
LEGAL OPINION
Bart Schwartz, Senior Vice President and General Counsel of The MONY
Group Inc., will issue an opinion about the legality of The MONY Group Inc.
common stock being offered by this prospectus. As of the date of this
prospectus, Mr. Schwartz beneficially owned 10,826 shares of our common stock.
13
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
-------
Securities and Exchange Commission registration fee $ 4,665
Fees and expenses of transfer agent 5,000
NYSE Additional listing fee 3,500
Accountant's fees and expenses 5,000
Legal fees and expenses 10,000
Blue Sky fees and expenses 5,000
Printing 3,000
Miscellaneous 2,000
-------
Total $38,165
The foregoing items, except for the Securities and Exchange Commission
registration fee, are estimated. The Registrant will pay all of the above
expenses. All expenses of the offering, other than selling discounts,
commissions and legal fees and expenses incurred separately by the selling
stockholders, will be paid by the Registrant.
Item 15. Indemnification of Directors and Officers
-------
The Registrant is a Delaware corporation. Reference is made to Section 145
of the Delaware General Corporation Law as to indemnification by the Registrant
of its officers and directors. The general effect of such law is to empower a
corporation to indemnify any of its officers and directors against certain
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person to be indemnified in
connection with certain actions, suits or proceedings (threatened, pending or
completed) if the person to be indemnified acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The Amended and Restated By-Laws of the Registrant, as amended (the "
Registrant's By-Laws"), provide for indemnification of any person who was or is
a director, officer, employee or agent of the Registrant or was serving in such
capacity at another entity at the Registrant's request (each, an "Indemnified
Person"), and is a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether derivative
or not. Indemnification continues as to an Indemnified Person who has ceased to
be a director, officer, employee or agent and inures to the benefit of the
heirs, executors and administrators of an Indemnified Person. The By-Laws also
authorize indemnification for expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement, as well as the advancement of expenses to
an Indemnified Person. The indemnification provisions in the By-Laws are
non-exclusive and allow the Registrant to indemnify by agreement or vote of
stockholders or disinterested directors.
Article Eighth of the Registrant's Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") provides for the
indemnification of the Registrant's directors in accordance with the Delaware
General Corporation Law, and includes, as permitted by the Delaware General
Corporation Law, certain limitations on the potential personal liability of
members of the Registrant's Board of Directors for monetary damages as a result
of actions taken in their capacity as Board members.
II-1
The directors and officers of the Registrant are covered by insurance
policies indemnifying them against certain liabilities arising under the
Securities Act of 1933, as amended, that might be incurred by them in such
capacities.
Item 16. Exhibits
-------
Exhibit
Number Description
------- -----------
2.1 Agreement and Plan of Merger dated as of October 8, 2001 by and
among The MONY Group Inc., The Advest Group, Inc., LAM
Acquisition Corp, Lebenthal & Co., Inc. and certain other
parties. (Portions of this exhibit are omitted and were filed
separately with the Securities and Exchange Commission pursuant
to the Registrant's application requesting confidential
treatment in accordance with Rule 406 as promulgated under the
Securities Act of 1933, as amended.)*
3.1 - Amended and Restated Certificate of Incorporation of the
Registrant dated November 3, 1998 (incorporated by reference to
Exhibit 3.1 of the Registrant's Registration Statement on Form
S-1, as amended, File No. 333-63835).
3.2 - Amended and Restated By-Laws of the Registrant (incorporated
by reference to Exhibit 3.2 of the Registrant's Registration
Statement on Form S-1, as amended, File No. 333-63835).
3.3 - Amendment to the Amended and Restated By-Laws of the Registrant
(incorporated by reference to Exhibit 3.3 to the Registrant's
Annual Report on Form 10-K for the year ended December 31,
1998, File No. 1-14603).
5.1 - Opinion of Bart Schwartz, Senior Vice President and General
Counsel of the Registrant, as to legality of securities being
registered.**
23.1 - Consent of PricewaterhouseCoopers LLP.*
23.2 - Consent of Bart Schwartz, Senior Vice President and General
Counsel of the Registrant (included in Exhibit 5.1).
24.1 - Power of Attorney of the Officers and Directors (included on
page II-4 of the Registration Statement as filed on
November 1, 2001).
---------------------
* Filed herewith.
** Previously filed.
Item 17. Undertakings
-------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration statement or any
material change to such information in the registration statement;
II-2
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, S-8 or F-3, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by the director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this amendment to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on the
7th day of December, 2001.
THE MONY GROUP INC.
/s/ Samuel Joseph Foti
By: --------------------------------------------------
Samuel Joseph Foti
President and Chief Operating
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to the registration statement has been signed by the following
persons in the capacities indicated on the 7th day of December, 2001.
Signature Title
--------- -----
* Chairman of the Board, Chief Executive
------------------------ Officer and Director (Principal Executive
Michael Isor Roth Officer)
* Executive Vice President and Chief Financial
------------------------ Officer (Principal Financial Officer)
Richard Daddario
* Vice President and Controller (Principal
------------------------ Accounting Officer)
Larry Cohen
* Director
------------------------
Tom Hans Barrett
* Director
------------------------
David Lincoln Call
II-4
* Director
-------------------------------
Glen Robert Durham
* Director
-------------------------------
James Bernard Farley
/s/ Samuel Joseph Foti President, Chief Operating Officer and
------------------------------- Director
Samuel Joseph Foti
* Director
-------------------------------
Robert Holland, Jr.
* Director
-------------------------------
James Lawrence Johnson
* Director
-------------------------------
Frederick Wilkinson Kanner
* Director
-------------------------------
Robert Raymond Kiley
* Executive Vice President, Chief Investment
------------------------------- Officer and Director
Kenneth Marc Levine
* Director
-------------------------------
Jane Cahill Pfeiffer
* Director
-------------------------------
Thomas Charles Theobald
*By: /s/ Bart Schwartz
---------------------------
Bart Schwartz
Attorney-in-Fact
II-5
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
2.1 Agreement and Plan of Merger dated as of October 8, 2001 by and
among The MONY Group Inc., The Advest Group, Inc., LAM
Acquisition Corp, Lebenthal & Co., Inc. and certain other
parties. (Portions of this exhibit are omitted and were filed
separately with the Securities and Exchange Commission pursuant
to the Registrant's application requesting confidential
treatment in accordance with Rule 406 as promulgated under the
Securities Act of 1933, as amended.)*
3.1 - Amended and Restated Certificate of Incorporation of the
Registrant dated November 3, 1998 (incorporated by reference to
Exhibit 3.1 of the Registrant's Registration Statement on
Form S-1, as amended, File No. 333-63835).
3.2 - Amended and Restated By-Laws of the Registrant (incorporated by
reference to Exhibit 3.2 of the Registrant's Registration
Statement on Form S-1, as amended, File No. 333-63835).
3.3 - Amendment to the Amended and Restated By-Laws of the Registrant
(incorporated by reference to Exhibit 3.3 to the Registrant's
Annual Report on Form 10-K for the year ended December 31,
1998, File No. 1-14603).
5.1 - Opinion of Bart Schwartz, Senior Vice President and General
Counsel of the Registrant, as to legality of securities being
registered.**
23.1 - Consent of PricewaterhouseCoopers LLP.*
23.2 - Consent of Bart Schwartz, Senior Vice President and General
Counsel of the Registrant (included in Exhibit 5.1).
24.1 - Power of Attorney of the Officers and Directors (included on
page II-4 of the Registration Statement as filed on November 1,
2001).
---------------
*Filed herewith.
**Previously filed.