EX-10 3 dex10.htm AMENDED & RESTATED TEXT AMENDED & RESTATED TEXT

Exhibit 10

 

Overview

 

Highfields Capital is the owner of 2,184,500 MONY shares and will vote AGAINST the proposed sale of MONY to AXA. Like many MONY shareholders, we invested in MONY five years ago with a view towards long-term equity appreciation. We strongly believe that a sale at less than 75% of book value is not in the best interest of shareholders and that recent changes made by MONY and AXA are thinly—veiled attempts to frustrate the will of long-term shareholders and deliver MONY to AXA at a bargain price.

 

The sale of MONY to AXA was a bad deal when made, and a worse deal now –

 

the recent “amendments” made by AXA do not change that.

 

We will continue to oppose any merger proposal that does not provide fair value for MONY shareholders, and we will continue to demand our appraisal rights. Under the amended merger proposal, AXA may elect not to close and complete the merger if appraisal demands are received which cover in excess of 15% of MONY’s outstanding shares.

 

We believe that MONY shareholders—no matter how many shares they own—should:

 

    vote AGAINST the sale to AXA, and

 

    exercise their Delaware statutory right to be paid appraised value.

 

 

WHY YOU SHOULD VOTE AGAINST THE SALE TO AXA

AND EXERCISE YOUR APPRAISAL RIGHTS

 

We believe that $31 per share is too low a price and that with new management MONY has the potential to provide a much higher return on our investment. We strongly oppose this bargain-basement sale and believe it is being driven by the desire of MONY’s executives to collect golden parachute payments despite their failure to enhance MONY’s value since the IPO five years ago. The Delaware Court of Chancery has even noted the “unusually large” size of these golden parachutes, and ruled that MONY’s proxy statement was “misleading” for failing to disclose how exceptionally rich they are. Highfields Capital believes that MONY shareholders should require that their interest come first by rejecting the inadequate AXA price.

 

Independent proxy advisors agree—the sale to AXA for $31 per share is at

 

too low a price and should be rejected.

 

Institutional Investor Services Inc. and Glass Lewis & Co., the two most respected independent shareholder advisory services, concluded that management’s proposed sale to AXA is not in the best interest of MONY shareholders. Both have studied the proposal objectively and solely from the perspective of the vote that would most benefit MONY shareholders. After exhaustive analysis they each emphatically recommended a vote AGAINST the AXA proposal.

 


 

Glass Lewis & Co., an independent financial proxy and financial advisory firm, stated that:

 

    “…the merger consideration offered here is inadequate”

 

    MONY is “simply worth more than AXA has agreed to pay for it”

 

 

 

 

 

 

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    the AXA proposal is a “fire sale”

 

    the sale allows “[management to] mask its own failures and collect tens of millions in golden parachutes”

 

    trading prices of MONY’s peers since the transaction was announced suggests that “in the absence of the AXA transaction, MONY would be trading above [$31]”

 

Institutional Investor Services (ISS), a leading provider of proxy advisory services to over 700 institutional investors, stated that:

 

    ...the deal is a low price and raises the question of why management is selling the company now.”

 

    the $31 per share price is “outside the boundary of reasonableness”

 

    “the lack of an action process to sell the company, rich goodbye package to management, and the company’s historical underperformance to peers, creates a mosaic of management actions not serving shareholders interests

 

    shareholders could target “a change of management [to] unlock more value over the long-term rather than sell at a discount to book value

 

READ MORE FROM THE ISS AND GLASS LEWIS REPORTS

 

AXA AND MONY MANAGEMENT HAVE DELAYED THE MEETING IN A

 

DESPERATE MOVE TO FORCE THE SALE

 

MONY has announced that management’s merger agreement with AXA has been amended and that the special meeting will now be held on May 18, 2004. We believe that the “amended” proposal does not provide any additional substantive financial value to MONY shareholders and is only an excuse for MONY to cancel the special meeting and give management another chance to control the vote.

 

We believe management continues to act more in its own interest than in the interests of shareholders. MONY’s latest proxy statement makes it clear that after five months of effort management had failed to obtain the required shareholder approval of the AXA proposal. Rather than accept this shareholder verdict by completing the shareholder meeting as soon as possible, management and AXA chose to delay the meeting for nearly three months and to reset the record date. Though MONY points to a court ruling and minor amendments to the agreement as triggering such delay, their proxy statement acknowledges that such a delay allows “investors [who have an interest in AXA convertible bonds]…to purchase additional shares of MONY stock to vote at the special meeting.”

 

We believe the delay shows that management is more interested in helping AXA complete its goal of purchasing MONY than in pursuing the interests of MONY’s own long-term shareholders.

 

DO NOT LET MANAGEMENT SUCCEED IN ITS EFFORT TO GAIN THE VOTE THAT SERVES

ITS OWN INTEREST.

 

EXERCISE YOUR RIGHT TO HAVE YOUR MONY SHARES APPRAISED BY A DELAWARE COURT

 

Highfields Capital and other shareholders holding approximately 14.2% of MONY shares have already notified MONY that we are exercising our right under Delaware law to be paid the appraised value of MONY shares if the transaction is completed. Highfields Capital believes that an independent valuation would result in an appraised value higher than $31 per share.

 

    Exercising appraisal rights preserves your right to be paid the appraised value, rather than accept just a fraction of book value that AXA has offered.

 

    You may revoke your appraisal demand at any time until 60 days after the effective date of the merger. If you vote in favor of the AXA

 

 

 

 

 

 

http://www.demandfairvalue.com/index.php


transaction, you cannot later demand appraisal, and will lose this right to the appraised value forever.

 

Preserve your statutory right to be paid the appraised value of your shares.

Vote AGAINST the AXA proposal and send MONY a demand for appraisal of your shares.

 

HOW TO PRESERVE YOUR APPRAISAL RIGHTS

 

All MONY shareholders have the same right to demand the appraised value of MONY shares, so long as they take certain steps described below. If you vote in favor of the AXA proposal, you will lose this right.

 

To preserve your appraisal rights, you must take two steps:

 

  1.   Do not vote in favor of the AXA proposal (either by not voting at all, or by voting against the transaction), and

 

  2.   Deliver to MONY a written request for appraisal PRIOR to the Shareholder Meeting

 

For further information on the appraisal and voting process contact MacKenzie Partners, or email info@demandfairvalue.com

 

The material provided in this website is solely informational, is provided for the convenience of MONY shareholders and is not to be construed as legal or financial advice. No party referred to herein shall be obligated to provide any additional information, updated information or to take, or not take, any steps or actions whether or not referred to herein. MONY shareholders should make their own determination, and consult with their own advisors, regarding the merger and the exercise of appraisal rights.

 

 

 

 

 

 

http://www.demandfairvalue.com/index.php


Highfields Capital Letters to MONY Shareholders

 

Highfields Capital has provided communications to other MONY shareholders explaining its reasons for voting against the proposed sale to AXA, and for exercising its appraisal rights. Look for future communications to be posted here from time-to-time.

 

Shareholders can also find these letters, as well as communications from other independent shareholders who oppose the sale and MONY’s own proxy material, at www.sec.gov.

 

    Letter of February 5, 2004 [See Exhibit 2 to Amendment No. 1 to Highfields Capital’s Form PX14A6G filed on February 9, 2004.]

 

    Letter of February 11, 2004 [See Exhibit 5 to Amendment No. 4 to Highfields Capital’s Form PX14A6G filed on February 17, 2004.]

 

    Letter of February 20, 2004 [See Exhibit 8 to Amendment No. 7 to Highfields Capital’s Form PX14A6G filed on February 20, 2004.]

 

 

 

 

 

 

http://www.demandfairvalue.com/shareholders.php


Highfields Capital Letters to MONY Board of Directors

 

Highfields Capital believes that MONY’s Board of Directors has a duty to ensure that shareholders be allowed to communicate with each other and exercise their governance rights without interference from management. Through repeated litigation claims MONY’s management has sought to harass Highfields Capital and other shareholders who oppose the sale to AXA.

 

Management has even pursued claims that it knows are contrary to stated (and recently confirmed) SEC policy and interpretations. Highfields Capital has written to MONY’s Board to express its views that such attacks on MONY’s own shareholders are a waste of corporate assets and violate shareholders rights.

 

    Letter of February 12, 2004 [See Exhibit 4 to Highfields Capital’s Amendment No. 3 to Form PX14A6G filed on February 13, 2004.]

 

    Letter of February 19, 2004 [See Exhibit 7 to Highfields Capital’s Amendment No. 6 to Form PX14A6G filed on February 19, 2004.]

 

 

 

 

 

 

http://www.demandfairvalue.com/directors.php

 


Read Why ISS and Glass Lewis Recommend

a Vote AGAINST AXA

 

The two most respected independent shareholder advisory services joined the voices of independent shareholders in concluding that management’s proposed sale to AXA is not in the interest of MONY shareholders. Both Institutional Investor Services Inc. (a proxy advisor to over 700 institutional investors, mutual funds, and other fiduciaries) and Glass Lewis & Co. (an independent proxy and financial advisory firm) each studied the proposal objectively and solely from the perspective of the vote that would most benefit MONY shareholders.

 

After exhaustive analysis both ISS and Glass Lewis emphatically recommended a vote AGAINST the AXA proposal. The forcefulness of their recommendations highlights management’s conflicts and self-interest, as well as the flawed process, which led to the proposed sale at an inadequate price.

 

Below are some excerpts of the reports and recommendations issued by ISS and Glass Lewis. Shareholders are encouraged to obtain and review the full text of the reports and recommendations which more fully describe the basis assumptions and risk factors associated with the conclusions set forth in the reports, and excerpted below. The commentary below, or elsewhere in this web-site, is not intended to be investment advice and should not be construed as such, or relied upon by any shareholder or other person.

 

Glass Lewis & Co.

 

“Does the Proposed Merger Give Shareholders Fair Value? We believe the merger consideration offered here is inadequate.”

 

“It is also worth noting that the peer companies have all traded higher since the time this deal was announced. In fact.... the peers have traded up more than MONY, suggesting that in the absence of the AXA transaction, MONY would be trading above the transaction price.”

 

“The Company has been poorly managed by a team of executives that the Board has left in place for too long despite anemic performance. And now the Board has essentially conceded defeat—agreeing to a fire sale for less than the stated book value of the business.”

 

“The decision to throw in the towel was appreciated, no doubt, by the management team, which likely sees this transaction as a way to both mask its own failures and collect tens of millions in golden parachutes.”

 

“... this Board has not tried hard enough to create value for shareholders. MONY’s cost and margin structure are substantially worse than its peers but we know of no reason this cannot be fixed.”

 

“...one of the dissenting shareholders has offered additional capital, if that is required. And, we know there are insurance executives who have long track records of producing returns on equity substantially above the meager one percent that this team has achieved. This Company can be better and should be worth more.”

 

 

 

 

 

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“... Mr. Roth explained to shareholders that the lack of scale is preventing MONY from successfully growing its business... We... found no evidence that MONY was worried about scale prior to the announcement of the merger. The company had not previously mentioned this issue in its conference calls and we are aware of no Street analyst who has cited scale as a reason for MONY’s lack of success. Indeed, given that there are several successful players in the life insurance industry of roughly similar size (AmerUS Group and StanCorp Financial both come to mind), we are doubtful of this ‘scale’ claim.”

 

“CSFB [in its fairness analysis] noted the mean and median book value multiples were 1.28 and 1.32, respectively. Nevertheless, in valuing MONY, CSFB elected to apply a book value multiple range of 0.7 to 0.9.....Our research failed to uncover a single instance in the last several years of a company selling for less than book value in a transaction valued at more than $1 billion.”

 

“We note that CSFB will receive its full fee of approximately $15 million only if shareholders approve the transaction and it is ultimately closed. We believe these sorts of contingency fee arrangements ... render suspect the work they do in evaluating the fairness of a deal ... We believe that several of the principal methods used in the analysis are flawed and that CSFB’s conclusions should not, therefore, be relied upon.”

 

“Again using our back-of-the-envelop math, if one assumes that MONY could grow its top line at 5% per year and achieve 2007 net income margins equal to those of AmerUS, the discounted cash flow value analysis (using CSFB’s discount rates) would yield a ‘fair’ price of $37 to $47 per share for MONY today.”

 

“We believe that if these assets were managed like MONY’s peers, MONY would generate cash flow that would justify the book value. Indeed, our math suggests that with a management team that could modestly grow the top line while getting expenses under control, this company could be fairly valued in the $50 to $60 range within three years.

 

“Now is no time to fold. MONY shareholders should insist that the board discard this management team and play on.”

 

Institutional Shareholder Services (“ISS”)

 

[The merger price of $31 per share] “is outside the boundary of reasonableness when compared to precedent transactions coupled with open market opportunities to sell above the offer price.”

 

“...we believe the deal value is a low price and raises the question of why management is selling the company now.”

 

“The approximately $90 million in management payments for negotiating a deal that is the lowest price to book valuation in the nine years covered in the financial advisor report underscores the significant conflict of interest between management and shareholders.”

 

“ Incredibly, management will receive more in additional compensation than MONY shareholders will receive in additional value from this transaction ... The transaction represents a major disconnect between pay and performance.”

 

“... one alternative shareholders could target is a change in management to attempt to unlock more value over the long-term rather than sell at a discount to book value. We believe that shareholders should focus on long term corporate value, and that there is an opportunity for the board to reconsider its alternatives as an independent entity and take measures to build the company’s return on capital to a more competitive level within the industry.”

 

“...the lack of an auction process to sell the company, rich goodbye package to management, and the company’s historical underperformance to peers, creates a mosaic of management actions not serving shareholder interests.”

 

“...Mr. Roth [states] that ... public filings could form a basis for bidders if anyone was inclined to make a superior offer [and that] an auction process would be detrimental to the value of the company as agents might defect in the uncertainty. We disagree with the assertion that public filings are enough for a bidder to enter the process. In terms of ... an auction process ...disrupting the company’s agent base, we note that there is the potential for the agent base to be disrupted whether the board initiated an auction or in this case chose to negotiate with one party.”

 

 

 

 

 

 

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“In the interests of longterm corporate value, we believe the board should reconsider its alternatives and either negotiate a transaction closer to precedents, replace management, or develop a strategy to improve the low ROE [return on equity].”

 

“...if capital is the barrier to improving the company’s financial position then the company can attempt to raise capital. If there is excess capital in the business then management can attempt to scale the business down to a more focused competitor and target capital allocation to product lines generating the best returns on capital.”

 

 

 

 

 

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Description of Delaware Appraisal Rights

 

Under Delaware law, if you do not wish to accept the cash payment provided for in the MONY—AXA merger agreement, you have the right to dissent from the merger and to demand payment in cash for the appraised value of your MONY shares, exclusive of any element of value arising from the accomplishment or expectation of the merger. Voting AGAINST the merger agreement and delivering an appraisal demand will preserve your right to be paid the appraised value of your MONY shares or to elect to accept the $31 per share merger price at anytime within 60 days after the effective date of the merger.

 

MONY shareholders electing to exercise appraisal rights must comply with the provisions of Section 262 of the Delaware General Corporation Law. MONY has stated that it will require strict compliance with the statutory procedures contained in Section 262.

 

The following is intended as a summary of the Delaware statutory procedures required to be followed to perfect appraisal rights and is not to be construed as legal or financial advice. MONY shareholders should make their own determination, and consult with their own advisors, regarding the merger and the exercise of appraisal rights. This summary is not complete and is qualified in its entirety by reference to Section 262 of the Delaware General Corporation Law. If you wish to exercise your appraisal rights, you should carefully review the text of Section 262 since failure to timely and properly comply with Section 262 will result in the loss of your appraisal rights under Delaware law. Click here for the full text of Section 262.

 

Steps to Demand Appraisal: To demand appraisal of your MONY shares, you must satisfy each of the following conditions BEFORE THE MAY 18, 2004 VOTE ON THE MERGER AGREEMENT WITH AXA:

 

  1.   You must NOT vote in favor of the adoption of the AXA merger agreement. A vote in favor of the adoption of the merger agreement, by proxy or in person, will constitute a waiver of your appraisal rights, AND

 

  2.   You (or your broker or other nominee if you are not a record holder) must deliver to MONY a written demand for appraisal of your MONY common stock before the vote on the merger with AXA. This written demand for appraisal must be in addition to and separate from any proxy or vote abstaining from or voting against the adoption of the merger agreement.

 

CLICK HERE FOR FORMS OF APPRAISAL DEMAND

 

  3.   A vote AGAINST the merger agreement will satisfy the requirement that you not vote in favor of the AXA proposal, and would also revoke any earlier vote in favor of the AXA proposal.

 

What the Appraisal Demand Looks Like: The demand for appraisal must reasonably inform MONY of the identity of the shareholder and the intention of the shareholder to demand appraisal of MONY shares. A demand for appraisal must be made by, or in the name of, a registered shareholder, fully and correctly, as the shareholder’s name appears on his or her stock certificate(s) and cannot be made by the beneficial owner if he or she does not also hold the shares of record (such as if shares are held in a brokerage account or other nominee account). The beneficial holder must, in such cases, have the broker or other registered owner submit the required demand covering those shares.

 

Where to Deliver the Appraisal Demand: All demands for appraisal should be addressed to the MONY General Counsel at The MONY Group Inc., 1740 Broadway, New York, New York 10019, before the vote on the merger is taken at the special meeting, and should be executed by, or on behalf of, the record holder of the shares of MONY common stock.

 

In view of the complexity of Section 262, MONY shareholders who may wish to dissent from the merger and pursue appraisal rights should consult their legal advisors.

 

 

 

 

 

 

http://www.demandfairvalue.com/appraisalRights.php


DELAWARE GENERAL CORPORATION LAW

SECTION 262. APPRAISAL RIGHTS.

 

  a.   Any stockholder of a corporation of this State who holds shares of stock on the date of the making of a demand pursuant to subsection (d) of this section with respect to such shares, who continuously holds such shares through the effective date of the merger or consolidation, who has otherwise complied with subsection (d) of this section and who has neither voted in favor of the merger or consolidation nor consented thereto in writing pursuant to § 228 of this title shall be entitled to an appraisal by the Court of Chancery of the fair value of the stockholder’s shares of stock under the circumstances described in subsections (b) and (c) of this section. As used in this section, the word “stockholder” means a holder of record of stock in a stock corporation and also a member of record of a nonstock corporation; the words “stock” and “share” mean and include what is ordinarily meant by those words and also membership or membership interest of a member of a nonstock corporation; and the words “depository receipt” mean a receipt or other instrument issued by a depository representing an interest in one or more shares, or fractions thereof, solely of stock of a corporation, which stock is deposited with the depository.

 

  b.   Appraisal rights shall be available for the shares of any class or series of stock of a constituent corporation in a merger or consolidation to be effected pursuant to § 251 (other than a merger effected pursuant to § 251(g) of this title), § 252, § 254, § 257, § 258, § 263 or § 264 of this title:

 

  1.   Provided, however, that no appraisal rights under this section shall be available for the shares of any class or series of stock, which stock, or depository receipts in respect thereof, at the record date fixed to determine the stockholders entitled to receive notice of and to vote at the meeting of stockholders to act upon the agreement of merger or consolidation, were either (i) listed on a national securities exchange or designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc. or (ii) held of record by more than 2,000 holders; and further provided that no appraisal rights shall be available for any shares of stock of the constituent corporation surviving a merger if the merger did not require for its approval the vote of the stockholders of the surviving corporation as provided in subsection (f) of § 251 of this title.

 

  2.   Notwithstanding paragraph (1) of this subsection, appraisal rights under this section shall be available for the shares of any class or series of stock of a constituent corporation if the holders thereof are required by the terms of an agreement of merger or consolidation pursuant to §§ 251, 252, 254, 257, 258, 263 and 264 of this title to accept for such stock anything except:

 

  a. Shares of stock of the corporation surviving or resulting from such merger or consolidation, or depository receipts in respect thereof;

 

  b. Shares of stock of any other corporation, or depository receipts in respect thereof, which shares of stock (or depository receipts in respect thereof) or depository receipts at the effective date of the merger or consolidation will be either listed on a national securities exchange or designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc. or held of record by more than 2,000 holders;

 

  c. Cash in lieu of fractional shares or fractional depository receipts described in the foregoing subparagraphs a. and b. of this paragraph; or

 

  d. Any combination of the shares of stock, depository receipts and cash in lieu of fractional shares or fractional depository receipts described in the foregoing subparagraphs a., b. and c. of this paragraph.

 

  3.   In the event all of the stock of a subsidiary Delaware corporation party to a merger effected under § 253 of this title is not owned by the parent corporation immediately prior to the merger, appraisal rights shall be available for the shares of the subsidiary Delaware corporation.

 

  c.   Any corporation may provide in its certificate of incorporation that appraisal rights under this section shall be available for the shares of any class or series of its stock as a result of an amendment to its certificate of incorporation, any merger or consolidation in which the corporation is a constituent corporation or the sale of all or substantially all of the assets of the corporation. If the certificate of incorporation contains such a provision, the procedures of this section, including those set forth in subsections (d) and (e) of this section, shall apply as nearly as is practicable.

 

 

 

 

 

 

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  d.   Appraisal rights shall be perfected as follows:

 

  1.   If a proposed merger or consolidation for which appraisal rights are provided under this section is to be submitted for approval at a meeting of stockholders, the corporation, not less than 20 days prior to the meeting, shall notify each of its stockholders who was such on the record date for such meeting with respect to shares for which appraisal rights are available pursuant to subsection (b) or (c) hereof that appraisal rights are available for any or all of the shares of the constituent corporations, and shall include in such notice a copy of this section. Each stockholder electing to demand the appraisal of such stockholder’s shares shall deliver to the corporation, before the taking of the vote on the merger or consolidation, a written demand for appraisal of such stockholder’s shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such stockholder’s shares. A proxy or vote against the merger or consolidation shall not constitute such a demand. A stockholder electing to take such action must do so by a separate written demand as herein provided. Within 10 days after the effective date of such merger or consolidation, the surviving or resulting corporation shall notify each stockholder of each constituent corporation who has complied with this subsection and has not voted in favor of or consented to the merger or consolidation of the date that the merger or consolidation has become effective; or

 

  2.   If the merger or consolidation was approved pursuant to § 228 or § 253 of this title, then, either a constituent corporation before the effective date of the merger or consolidation, or the surviving or resulting corporation within 10 days thereafter, shall notify each of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger or consolidation and that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy of this section. Such notice may, and, if given on or after the effective date of the merger or consolidation, shall, also notify such stockholders of the effective date of the merger or consolidation. Any stockholder entitled to appraisal rights may, within 20 days after the date of mailing of such notice, demand in writing from the surviving or resulting corporation the appraisal of such holder’s shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such holder’s shares. If such notice did not notify stockholders of the effective date of the merger or consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the merger or consolidation notifying each of the holders of any class or series of stock of such constituent corporation that are entitled to appraisal rights of the effective date of the merger or consolidation or (ii) the surviving or resulting corporation shall send such a second notice to all such holders on or within 10 days after such effective date; provided, however, that if such second notice is sent more than 20 days following the sending of the first notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has demanded appraisal of such holder’s shares in accordance with this subsection. An affidavit of the secretary or assistant secretary or of the transfer agent of the corporation that is required to give either notice that such notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. For purposes of determining the stockholders entitled to receive either notice, each constituent corporation may fix, in advance, a record date that shall be not more than 10 days prior to the date the notice is given, provided, that if the notice is given on or after the effective date of the merger or consolidation, the record date shall be such effective date. If no record date is fixed and the notice is given prior to the effective date, the record date shall be the close of business on the day next preceding the day on which the notice is given.

 

  e.   Within 120 days after the effective date of the merger or consolidation, the surviving or resulting corporation or any stockholder who has complied with subsections (a) and (d) hereof and who is otherwise entitled to appraisal rights, may file a petition in the Court of Chancery demanding a determination of the value of the stock of all such stockholders. Notwithstanding the foregoing, at any time within 60 days after the effective date of the merger or consolidation, any stockholder shall have the right to withdraw such stockholder’s demand for appraisal and to accept the terms offered upon the merger or consolidation. Within 120 days after the effective date of the merger or consolidation, any stockholder who has complied with the requirements of subsections (a) and (d) hereof, upon written request, shall be entitled to receive from the corporation surviving the merger or resulting from the consolidation a statement setting forth the aggregate number of shares not voted in favor of the merger or consolidation and with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. Such written statement shall be mailed to the stockholder within 10 days after such stockholder’s written request for such a statement is received by the surviving or resulting corporation or within 10 days after expiration of the period for delivery of demands for appraisal under subsection (d) hereof, whichever is later.

 

 

 

 

 

 

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  f.   Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the surviving or resulting corporation, which shall within 20 days after such service file in the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all stockholders who have demanded payment for their shares and with whom agreements as to the value of their shares have not been reached by the surviving or resulting corporation. If the petition shall be filed by the surviving or resulting corporation, the petition shall be accompanied by such a duly verified list. The Register in Chancery, if so ordered by the Court, shall give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the surviving or resulting corporation and to the stockholders shown on the list at the addresses therein stated. Such notice shall also be given by 1 or more publications at least 1 week before the day of the hearing, in a newspaper of general circulation published in the City of Wilmington, Delaware or such publication as the Court deems advisable. The forms of the notices by mail and by publication shall be approved by the Court, and the costs thereof shall be borne by the surviving or resulting corporation.

 

  g.   At the hearing on such petition, the Court shall determine the stockholders who have complied with this section and who have become entitled to appraisal rights. The Court may require the stockholders who have demanded an appraisal for their shares and who hold stock represented by certificates to submit their certificates of stock to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings; and if any stockholder fails to comply with such direction, the Court may dismiss the proceedings as to such stockholder.

 

  h.   After determining the stockholders entitled to an appraisal, the Court shall appraise the shares, determining their fair value exclusive of any element of value arising from the accomplishment or expectation of the merger or consolidation, together with a fair rate of interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court shall take into account all relevant factors. In determining the fair rate of interest, the Court may consider all relevant factors, including the rate of interest which the surviving or resulting corporation would have had to pay to borrow money during the pendency of the proceeding. Upon application by the surviving or resulting corporation or by any stockholder entitled to participate in the appraisal proceeding, the Court may, in its discretion, permit discovery or other pretrial proceedings and may proceed to trial upon the appraisal prior to the final determination of the stockholder entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving or resulting corporation pursuant to subsection (f) of this section and who has submitted such stockholder’s certificates of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is not entitled to appraisal rights under this section.

 

  i.   The Court shall direct the payment of the fair value of the shares, together with interest, if any, by the surviving or resulting corporation to the stockholders entitled thereto. Interest may be simple or compound, as the Court may direct. Payment shall be so made to each such stockholder, in the case of holders of uncertificated stock forthwith, and the case of holders of shares represented by certificates upon the surrender to the corporation of the certificates representing such stock. The Court’s decree may be enforced as other decrees in the Court of Chancery may be enforced, whether such surviving or resulting corporation be a corporation of this State or of any state.

 

  j.   The costs of the proceeding may be determined by the Court and taxed upon the parties as the Court deems equitable in the circumstances. Upon application of a stockholder, the Court may order all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorney’s fees and the fees and expenses of experts, to be charged pro rata against the value of all the shares entitled to an appraisal.

 

  k.   From and after the effective date of the merger or consolidation, no stockholder who has demanded appraisal rights as provided in subsection (d) of this section shall be entitled to vote such stock for any purpose or to receive payment of dividends or other distributions on the stock (except dividends or other distributions payable to stockholders of record at a date which is prior to the effective date of the merger or consolidation); provided, however, that if no petition for an appraisal shall be filed within the time provided in subsection (e) of this section, or if such stockholder shall deliver to the surviving or resulting corporation a written withdrawal of such stockholder’s demand for an appraisal and an acceptance of the merger or consolidation, either within 60 days after the effective date of the merger or consolidation as provided in subsection (e) of this section or thereafter with the written approval of the corporation, then the right of such stockholder to an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery shall be dismissed as to any stockholder without the approval of the Court, and such approval may be conditioned upon such terms as the Court deems just.

 

  l.   The shares of the surviving or resulting corporation to which the shares of such objecting stockholders would have been converted had they assented to the merger or consolidation shall have the status of authorized and unissued shares of the surviving or resulting corporation.

 

 

 

 

 

 

http://www.demandfairvalue.com/delawareCode.php


Forms of Appraisal Demand

 

Set out below are copies of forms of appraisal demand presented by Highfields Capital to MONY. These are samples only and have not been approved by MONY. The information and forms provided herein are for the convenience of MONY shareholders and should not be construed as legal or financial advice.

 

    Letter for Shares Held in Record Ownership [link]

 

    Letter for Shares Held by a Broker or Other Nominee [link]

 

 

 

 

 

 

http://www.demandfairvalue.com/forms.php


Letter for Shares Held in Record Ownership

 

   
 

 

October 16, 2003

 

The MONY Group Inc.

Attn: General Counsel

1740 Broadway

New York, NY 10019

 

 

 

 

 

  

Copy of Form of Appraisal Demand Letter submitted by Highfields Capital respecting
record ownership of MONY shares included in the  total of 2,184,500 MONY shares held of
record and beneficially by Highfields Capital investment entities.

 

Appraisal demand respecting MONY shares held beneficially in brokerage accounts was
made through letter from Cede & Co., dated October 22, 2003, attached below.

   

  

   
 

 

  Re:   Appraisal Demand for
         Highfields Capital I LP

 

Ladies and Gentlemen:

 

On behalf of Highfields Capital I LP which owns (i) of record 100 shares (the “Record Shares”) of the common stock, par value $.01 per share (the “Common Stock”), of The MONY Group Inc. (“MONY”) and (ii) beneficially an additional {Number of shares held in brokerage account} shares of Common Stock (the “Beneficial Shares” and, together with the Record Shares, the “Shares”). Pursuant to Section 262 of the Delaware General Corporation Law (“Section 262”), the undersigned hereby demands appraisal of the Shares in connection with and as a result of the merger contemplated by the Agreement and Plan of Merger dated as of September 17, 2003 among AXA Financial, Inc., AIMA Acquisition Co. and MONY (the “Merger Agreement”).

 

A demand from the record holder of the Beneficial Shares shall be forthcoming as promptly as practicable.

 

This demand is without prejudice to any other causes of action, rights or remedies the undersigned may have with respect to the Merger Agreement.

 

Please advise the undersigned promptly in you believe or intend to contend that, for any reason, this demand is defective or inadequate as a demand for appraisal of the Shares under Section 262.

 

Very truly yours,

 

/s/    Joseph F. Mazzella

 

Joseph F. Mazzella

 

 

 

Download This Form

 

This form may also be downloaded in PDF format. [link]

 

 

 

 

 

 

http://www.demandfairvalue.com/recordOwnership.php


Letter for Shares Held by a Broker or Other Nominee

 

Cede & Co.

c/o The Depository Trust Company

55 Water Street

New York, NY 10041

 

   
 

 

October 22, 2003

 

The MONY Group Inc.

Attn: Mr. Bart R. Schwartz

Senior Vice President and General Counsel

1740 Broadway

New York, NY 10019

 

 

 

 

 

 

 

Copy of Form of Appraisal Demand Letter submitted with

respect to MONY shares held in brokerage accounts.

 

Arrangements for delivery of this letter may be made

through a broker or other nominee holding shares

beneficially owned by a MONY shareholder.

 

 

 

 

 

   
 

 

Gentleman:

 

Cede & Co., the nominee of The Depository Trust Company (“DTC”), is a holder of record shares of common stock, par value $.01 per share, of The MONY Group Inc. DTC is informed by its participant, {Broker}. (“Participant”), that 2,184,200 of such shares (the “Shares”) are beneficially owned by Highfields Capital I LP, Highfields Capital II LP, and Highfields Capital Ltd., customers of the Participant.

 

In accordance with instructions received from Participant on behalf of its customers, we hereby demand appraisal of the Shares, pursuant to Section 262 of the Delaware General Corporation Law, in connection with and as a result of the merger contemplated by the Agreement and Plan of Merger dated as of September 17, 2003 among AXA Financial, Inc., AIMA Acquisition Co and The MONY Group Inc.

 

While Cede & Co. is furnishing this demand for appraisal as the stockholder of record of the Shares, it does so at the request of Participant and only as a nominal party for the parties in interest, Highfields Capital I LP, Highfields Capital II LP, and Highfields Capital Ltd., L.P., so that they are not denied their rights as the beneficial owners of the Shares, and Cede & Co. assumes no further responsibility in this matter.

 

Future correspondence on this matter should be directed to Joseph F. Mazella, General Counsel, Highfields Capital Management LP, 200 Clarendon Street, Boston, MA 02116.

 

Very truly yours,

Cede & Co.

 

By:                                                                                  

 

 

 

Download This Form

 

This form may also be downloaded in PDF format. [link]

 

 

 

 

 

 

http://www.demandfairvalue.com/brokerHeld.php


Contact Us

 

For More Information Contact:

info@demandfairvalue.com

 

or

 

MacKenzie Partners, Inc.

105 Madison Avenue

14th Floor

New York, NY 10016

(212) 929-5500 collect

(800) 322-2885 toll-free

 

 

 

 

 

 

http://www.demandfairvalue.com/contactUs.php