METLIFE, INC. UNDERWRITING AGREEMENT
Exhibit 1.1
Execution Version
METLIFE, INC.
June 30, 2009
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time, MetLife, Inc., a Delaware corporation (the “Company”), proposes to
enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex
I hereto, with such additions and deletions as the parties thereto may determine and, subject to
the terms and conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (the “Underwriters” with respect to such
Pricing Agreement and the securities specified therein) the principal amount of its securities or
aggregate number of shares identified in Schedule I to the applicable Pricing Agreement (the
“Securities” with respect to such Pricing Agreement).
The terms and rights of any particular issuance of Securities shall be as specified in the
Pricing Agreement relating thereto and in or pursuant to the Subordinated Indenture as specified in
such Pricing Agreement as supplemented by the Eighth Supplemental Indenture (the Subordinated
Indenture as so supplemented, the “Indenture”), or the Amended and Restated Certificate of
Incorporation of the Company (including the applicable Certificate of Designation), as applicable
(each a “Securities Agreement”), and identified in such Pricing Agreement.
Particular sales of Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the Underwriters of such Securities
in the Pricing Agreement relating thereto will act as representatives (the
“Representatives”). The term “Representatives” also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm being designated as
their representative. This Underwriting Agreement shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase
the Securities. The obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such Securities or the
total number of shares, as the case may be, the initial public offering price of such Securities,
the purchase price to the Underwriters of such Securities, the names of the Underwriters of such
Securities, the names of the Representatives of such Underwriters and the principal amount or
number of shares, as the case may be, of such Securities to be purchased by each Underwriter. In
addition, such Pricing Agreement shall set forth the date, time and manner
of delivery of such
Securities and payment therefor. Such Pricing Agreement shall also specify (in a manner not
inconsistent with the applicable Securities Agreements and the registration
statement and prospectus with respect thereto) the terms of such Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
1. Representations and Warranties. The Company represents and warrants to the Underwriters,
and agrees with each of the Underwriters that, unless otherwise specified, as of the date hereof,
as of the Applicable Time and as of the Closing Date, as follows:
(a) The Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-147180) under the Securities
Act of 1933, as amended (the “Act”), which has become effective, for the registration under
the Act of the Securities. The Company meets the requirements for use of Form S-3 under the Act. No
stop order suspending the effectiveness of the registration statement has been issued under the Act
and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the Commission for
additional information has been complied with. The Company proposes to file with the Commission
pursuant to Rule 424 under the Act a supplement or supplements to the form of prospectus included
in such registration statement relating to the Securities and the plan of distribution thereof.
Such registration statement, including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the “Registration Statement”; the Registration Statement
at the time it originally became effective is herein called the “Original Registration
Statement”; such prospectus in the form in which it appears in the Original Registration
Statement is hereinafter called the “Base Prospectus”; and such supplemented form of
prospectus, in the form in which it shall first be filed with the Commission pursuant to Rule 424
(including the Base Prospectus as so supplemented), is hereinafter called the “Final
Prospectus.” Any preliminary form of the Final Prospectus which has heretofore been filed
pursuant to Rule 424 is hereinafter called a “Preliminary Prospectus.” Any reference herein
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing
Prospectus (as defined below) or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date
of this Agreement, or the issue date of the Base Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Final Prospectus, as the case may be; and any reference herein to the
terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Final Prospectus shall be
deemed to refer to and include any document filed under the Exchange Act after the date of this
Agreement, or the issue date of the Base Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by
reference; each Preliminary Prospectus, the Pricing Prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material respects with the Act
and the rules thereunder and each Preliminary Prospectus, the Pricing Prospectus and the Final
Prospectus delivered to the Representatives for use in connection with this offering was identical
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to the electronically transmitted copies thereof filed with the Commission via the Electronic Data
Gathering, Analysis and Retrieval (“XXXXX”) system, except to the extent permitted by
Regulation S-T.
(b) (i) The Registration Statement, as amended as of any such time, and the Final Prospectus,
as amended or supplemented as of any such time, and, in the case of Securities issued pursuant to
the Indenture, such Indenture, will comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), as applicable, and the respective rules thereunder;
(ii) (A) The Registration Statement does not and will not, as of the applicable
effective date as to each part of the Registration Statement, contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading and (B) the Final
Prospectus does not and will not, as of its date and as of its filing date, contain any
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that for each of (A) and (B), the Company makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute the trustee’s Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act or (ii) the
information contained in or omitted from the Registration Statement or the Final Prospectus
in reliance upon and in conformity with information relating to such Underwriter furnished
in writing to the Company by any Underwriter expressly for use in the Registration Statement
and the Final Prospectus;
(iii) As of the Applicable Time, the Issuer Free Writing Prospectus(es) (as defined
below) listed on Schedule 1 hereto, if any, the Pricing Prospectus (as defined below), and
the final term sheet relating to the Securities set forth as Schedule 2 to the Pricing
Agreement (as defined below) (the “Final Term Sheet”), all considered together
(collectively, the “Disclosure Package”), will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; and
(iv) As of the Applicable Time, each Issuer Free Writing Prospectus listed on Schedule
1 hereto, if any, will not conflict with the information contained or incorporated by
reference in the Registration Statement or the Disclosure Package, and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the Disclosure Package and
any other such Issuer Free Writing Prospectus, in each case as of the Applicable Time, will
not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, it is understood and agreed that in no
event shall any such Issuer Free Writing Prospectus, including but not limited to any
electronic roadshow, be listed on Schedule 1 hereto unless the Company (i) has consented to
the use thereof and (ii) shall have approved its
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contents before any such use, in each case
in accordance with the provisions of this Agreement.
As used in this subsection and elsewhere in this Underwriting Agreement:
“Applicable Time” means 4:55 p.m. (Eastern Time) on June 30, 2009 or such other time
as agreed by the Company and the Representatives and stated in the applicable Pricing Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433 under the Act (“Rule 433”), relating to the Securities.
“Pricing Prospectus” means the Base Prospectus, as amended or supplemented (including
by any Preliminary Prospectus) immediately prior to the Applicable Time.
(c) At the time the Company or another offering participant first made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company was not an
“ineligible issuer” as defined in Rule 405 under the Act.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Act) relied
on the exemption of Rule 163 of the Act and (iv) as of the date of this Agreement, the Company was
and is a “well known seasoned issuer” as defined in Rule 405 of the Act. The Registration
Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities
Act, that automatically became effective not more than three years prior to the date hereof; the
Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Act
objecting to use of the automatic shelf registration statement and the Company has not otherwise
ceased to be eligible to use the automatic shelf registration statement. The Company has paid or
shall pay the required Commission filing fees relating to the Securities within the time required
by Rule 456(b)(1) under the Act and otherwise in accordance with Rules 456(b) and 457(r) under the
Act.
(e) Each document incorporated or deemed to be incorporated by reference in the Registration
Statement, the Disclosure Package and the Final Prospectus, when they became effective or at the
time they were or hereafter are filed with the Commission, complied and will comply in all material
respects with the Act or the Exchange Act, as applicable.
(f) Neither the Company nor any Significant Subsidiary (as defined below) of the Company has
sustained since the date of the latest audited financial statements included or incorporated by
reference in the Disclosure Package any loss or interference material to the business of the
Company and its subsidiaries considered as a whole, other than as described in or contemplated by
the Disclosure Package, from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree; and, since
the respective dates as of which information is given in the Disclosure Package, other than as
described or contemplated in the Disclosure Package, there has not been
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any (i) material addition,
or development involving a prospective material addition, to the liability of Metropolitan Life
Insurance Company (“MLIC”) for future policy benefits,
policyholder account balances and other claims, other than in the ordinary course of business,
(ii) material decrease in the surplus of MLIC or material change in the capital stock or other
ownership interests (other than issuances of common stock upon the exercise of outstanding employee
stock options or pursuant to existing employee compensation plans or on the conversion or exchange
of convertible or exchangeable securities outstanding on the date of the applicable Pricing
Agreement) of the Company or any Significant Subsidiary or any material increase in the long-term
debt of the Company or its subsidiaries, considered as a whole, or (iii) material adverse change,
or development involving a prospective material adverse change, in or affecting the business,
financial position, reserves, surplus, equity or results of operations (in each case considered
either on a statutory accounting or U.S. generally accepted accounting principles (“GAAP”)
basis, as applicable) of the Company and its subsidiaries considered as a whole. As of December 31,
2008, the subsidiaries of the Company that would qualify as a “Significant Subsidiary” of the
Company under Regulation S-X were MLIC, MetLife Insurance Company of Connecticut, MetLife
Reinsurance Company of Charleston, St. Xxxxx Xxxxx Investments Two Limited and One Madison
Investments (CAYCO) Limited. For purposes of this Agreement, the term “Significant Subsidiary”
shall mean each of the subsidiaries listed in the preceding sentence other than St. Xxxxx Xxxxx
Investments Two Limited and One Madison Investments (CAYCO) Limited.
(g) The Company and each Significant Subsidiary has good and marketable title in fee simple to
all material real property and good and marketable title to all material personal property owned by
it, in each case free and clear of all liens, encumbrances and defects, except such as are
described in the Disclosure Package or such as would not have a material adverse effect on the
business, financial position, equity, reserves, surplus or results of operations of the Company and
its subsidiaries, considered as a whole (“Material Adverse Effect”), and do not materially
interfere with the use made and proposed to be made of such property by the Company or any
Significant Subsidiary, and any material real property and material buildings held under lease by
the Company or any of its subsidiaries are held under valid, subsisting and enforceable leases with
such exceptions that do not materially interfere with the use made and currently proposed to be
made of such property and buildings by the Company or any Significant Subsidiary.
(h) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Disclosure Package and has been
duly qualified as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification and good standing, except to the extent that
the failure to be so qualified and in good standing would not have a Material Adverse Effect; MLIC
was duly converted from a mutual life insurance company to a stock life insurance company on April
7, 2000 in accordance with the Plan of Reorganization of MetLife under Section 7312 of the New York
Insurance Law; each Significant Subsidiary is validly existing as a corporation and is in good
standing under the laws of its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Disclosure Package;
and each Significant Subsidiary is duly
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qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which its ownership
or lease of property or the conduct of its business requires such qualification and good standing, except to the extent that the
failure to be so qualified and in good standing would not have a Material Adverse Effect.
(i) The Company has the corporate power and authority to execute and deliver this Agreement,
the applicable Pricing Agreements, the applicable Securities Agreements and the Securities and to
consummate the transactions contemplated hereby and thereby.
(j) The Company has an authorized capitalization as set forth and described in the Disclosure
Package, and all of the issued shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable; none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company; except as disclosed in the Disclosure Package, there are no
outstanding options or warrants to purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible into or any contracts or commitments
to sell shares of the Company’s capital stock or any such options, rights, warrants, convertible
securities or obligations; the description of the Company’s stock option plans and the options or
other rights granted and exercised thereunder set forth in the Disclosure Package accurately and
fairly describe the information required to be shown with respect to such plans, arrangements,
options and rights; except as disclosed in the Disclosure Package, there are no rights of any
person, corporation or other entity to require registration of any shares of common stock or any
other securities of the Company in connection with the filing of the Registration Statement and the
issuance and sale of the Securities to the Underwriters pursuant to this Agreement and the
applicable Pricing Agreements; all of the issued shares of capital stock or other ownership
interests of MLIC have been duly and validly authorized and issued, are fully paid and
nonassessable and are owned directly or indirectly by the Company free and clear of all liens,
encumbrances, equities or claims.
(k) The Securities have been duly authorized and, when the Securities are issued and delivered
pursuant to this Agreement and the applicable Pricing Agreements, such Securities will have been
duly executed, authenticated, issued and delivered (assuming their due authentication by the
trustee and, in the case of Securities representing capital stock of the Company, will be fully
paid and nonassessable) and will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, and will be entitled to the
benefits provided by the applicable Securities Agreements; such Securities Agreements have been
duly authorized, executed and delivered by the Company and, in the case of Securities issued
pursuant to an Indenture, such Indenture has been duly qualified under the Trust Indenture Act and,
on the Closing Date for any Securities, each Securities Agreement will constitute a valid and
legally binding agreement of the Company (assuming due execution and delivery by the trustee, where
applicable), enforceable against the Company in accordance with its terms, subject, as to
enforcement, bankruptcy, insolvency, fraudulent transfer, moratorium and other similar laws
relating to or affecting creditors’ rights generally and to general principles of equity; and the
Securities will be substantially in the form contemplated by the applicable Securities Agreements,
and the Securities and the applicable Securities Agreements conform in all material respects to the
descriptions thereof contained in the Disclosure Package and the Final Prospectus.
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(l) Each Significant Subsidiary that is required to be organized or licensed as an insurance
company in its jurisdiction of incorporation (each, an “Insurance Subsidiary” and
collectively, the “Insurance Subsidiaries”) is licensed as an insurance company in its
respective jurisdiction of incorporation and is duly licensed or authorized as an insurer in each
other jurisdiction where it is required to be so licensed or authorized to conduct its business, in
each case with such exceptions as would not have, individually or in the aggregate, a Material
Adverse Effect; except as otherwise described in the Disclosure Package, each Insurance Subsidiary
has all other approvals, orders, consents, authorizations, licenses, certificates, permits,
registrations and qualifications (collectively, the “Approvals”) of and from all insurance
regulatory authorities to conduct its business, with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect; there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or investigation that could
reasonably be expected to lead to any revocation, termination or suspension of any such Approval,
the revocation, termination or suspension of which would have, individually or in the aggregate, a
Material Adverse Effect; and, to the knowledge of the Company, no insurance regulatory agency or
body has issued any order or decree impairing, restricting or prohibiting the payment of dividends
by any Insurance Subsidiary to its parent which would have, individually or in the aggregate, a
Material Adverse Effect.
(m) The Company and each Significant Subsidiary has all necessary Approvals of and from, and
has made all filings, registrations and declarations (collectively, the “Filings”) with,
all insurance regulatory authorities, all Federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals, which are necessary to own,
lease, license and use its properties and assets and to conduct its business in the manner
described in the Disclosure Package, except where the failure to have such Approvals or to make
such Filings would not have, individually or in the aggregate, a Material Adverse Effect; to the
knowledge of the Company, the Company and each Significant Subsidiary is in compliance with all
applicable laws, rules, regulations, orders, by-laws and similar requirements, including in
connection with registrations or memberships in self-regulatory organizations, and all such
Approvals and Filings are in full force and effect and neither the Company nor any Significant
Subsidiary has received any notice of any event, inquiry, investigation or proceeding that would
reasonably be expected to result in the suspension, revocation or limitation of any such Approval
or otherwise impose any limitation on the conduct of the business of the Company or any Significant
Subsidiary, except as described in the Disclosure Package or except for any such non-compliance,
suspension, revocation or limitation which would not have, individually or in the aggregate, a
Material Adverse Effect.
(n) Each Insurance Subsidiary is in compliance with and conducts its businesses in conformity
with all applicable insurance laws and regulations of its respective jurisdiction of incorporation
and the insurance laws and regulations of other jurisdictions which are applicable to it, in each
case with such exceptions as would not have, individually or in the aggregate, a Material Adverse
Effect.
(o) Each Significant Subsidiary which is engaged in the business of acting as a broker-dealer
or an investment advisor (respectively, a “Broker-Dealer Subsidiary” and an “Investment
Advisor Subsidiary”) is duly licensed or registered as a broker-dealer or investment advisor,
as the case may be, in each jurisdiction where it is required to be so licensed or
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registered to conduct its business, in each case, with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect; each Broker-Dealer Subsidiary and each
Investment Advisor Subsidiary has all other necessary Approvals of and from all applicable
regulatory authorities, including any self-regulatory organization, to conduct its businesses, in
each case with such exceptions, as would not have, individually or in the aggregate, a Material
Adverse Effect; except as otherwise described in the Disclosure Package, none of the Broker-Dealer
Subsidiaries or Investment Advisor Subsidiaries has received any notification from any applicable
regulatory authority to the effect that any additional Approvals from such regulatory authority are
needed to be obtained by such subsidiary in any case where it could be reasonably expected that (x)
any of the Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries would in fact be required
either to obtain any such additional Approvals or cease or otherwise limit engaging in a certain
business and (y) the failure to have such Approvals or limiting such business would have a Material
Adverse Effect; and each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary is in
compliance with the requirements of the broker-dealer and investment advisor laws and regulations
of each jurisdiction which are applicable to such subsidiary, and has filed all notices, reports,
documents or other information required to be filed thereunder, in each case with such exceptions
as would not have, individually or in the aggregate, a Material Adverse Effect.
(p) The issue and sale of the Securities pursuant to any Pricing Agreement, and compliance by
the Company with all of the provisions of the Securities, the applicable Securities Agreements,
this Agreement and any Pricing Agreement, and the consummation of the transactions herein and
therein contemplated, will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which the Company or any Significant Subsidiary is a
party or by which the Company or any Significant Subsidiary is bound or to which any of the
property or assets of the Company or any Significant Subsidiary is subject, or which affects the
validity, performance or consummation of the transactions contemplated by this Agreement, nor will
such action result in any violation of any statute or any order, rule or regulation of any court or
insurance regulatory authority or other governmental agency or body having jurisdiction over the
Company or any Significant Subsidiary or any of their properties, in each case other than such
breaches, conflicts, violations, or defaults which individually or in the aggregate, would not have
a Material Adverse Effect and would not adversely affect the validity or performance of the
Company’s obligations under the Securities, the applicable Securities Agreements, this Agreement
and any Pricing Agreement; nor will such action result in any violation of the provisions of the
certificate of incorporation or by-laws or other charter documents of the Company or any
Significant Subsidiary; and no Approval of or Filing with any such court or insurance regulatory
authority or other governmental agency or body is required for the issue or sale of the Securities,
except (i) the registration under the Act of the Securities which registration has become effective
and (ii) such Approvals or Filings as may be required under the Trust Indenture Act or state
securities or Blue Sky laws in connection with the purchase and distribution of the Securities by
the Underwriters and except as otherwise described in the Disclosure Package.
(q) Other than as set forth in the Disclosure Package, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is subject, challenging the
8
transactions contemplated by this Agreement and the applicable Pricing Agreements or which, if
determined adversely to the Company or its subsidiaries, could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or would materially and adversely
affect the ability of the Company to perform its obligations under the Securities Agreements or
this Agreement; and, to the knowledge of the Company, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others other than as set forth in the
Disclosure Package.
(r) Neither the Company nor any Significant Subsidiary is in violation of any of its
certificate of incorporation or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a party or by which it is
bound or to which any of its property or assets is subject, which violation or default would have,
individually or in the aggregate, a Material Adverse Effect.
(s) The statements set forth in the Disclosure Package and the Final Prospectus under the
captions “Description of Junior Subordinated Debentures”, “Description of the Replacement Capital
Covenant” and “Description of Debt Securities”, insofar as they purport to constitute a summary of
the terms of the Securities fairly summarize such terms in all material respects. The statements
set forth in the Disclosure Package and the Final Prospectus under the caption “Material United
States Federal Income Tax Considerations,” insofar as they purport to describe provisions of the
laws referred to therein, fairly summarize such provisions in all material respects. The
statements set forth in the Disclosure Package and the Final Prospectus under the caption
“Underwriting,” insofar as they purport to constitute a summary of the terms of this Agreement and
the applicable Pricing Agreement, fairly summarize such terms in all material respects.
(t) The financial statements of the Company and its consolidated subsidiaries included or
incorporated by reference in the Disclosure Package, together with the related schedules and notes,
comply in all material respects with the requirements of the Act and the Exchange Act, as
applicable, and present fairly in all material respects the financial position, the results of
operations and the changes in cash flows of such entities in conformity with GAAP at the respective
dates or for the respective periods to which they apply; and such financial statements and related
notes and schedules, if any, have been prepared in accordance with GAAP consistently applied
throughout the periods involved (for the avoidance of doubt, any unaudited pro forma condensed
consolidated financial information, together with the related schedules and notes, included or
incorporated by reference in the Disclosure Package shall not be deemed the financial statements of
the Company and its consolidated subsidiaries); any pro forma consolidated statement of income and
any pro forma consolidated balance sheet and the related notes thereto set forth in the Disclosure
Package have been prepared in all material respects in accordance with the applicable requirements
of Rule 11-02 of Regulation S-X promulgated under the Exchange Act, have been compiled on the pro
forma basis described therein, and the assumptions used in the preparation thereof were reasonable
at the time made and the adjustments used therein are based upon good faith estimates and
assumptions believed by the Company to be reasonable at the time made.
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(u) Deloitte & Touche LLP, which has audited certain consolidated financial statements of the
Company and its subsidiaries, is an Independent Registered Public Accounting Firm as required by
the Act and the rules and regulations of the Commission thereunder.
(v) Neither the Company nor any Significant Subsidiary is, or after giving effect to the issue
and sale of the Securities pursuant to any Pricing Agreement will be, an “investment company”, as
such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company
Act”), and the rules and regulations thereunder, although certain separate accounts of MLIC and
of certain Insurance Subsidiaries are required to register as investment companies under the
Investment Company Act.
(w) This Agreement and the applicable Pricing Agreements with respect to the applicable
Securities have been duly authorized, executed and delivered by the Company.
(x) None of the Company or its subsidiaries or, to the best of their knowledge, any of their
directors, officers or affiliates, has taken or will take, directly or indirectly, any action
designed to, or that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Securities in violation of Regulation M under the Exchange Act.
(y) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. As disclosed in the
Company’s Annual Report on Form 10-K for the year ended December 31, 2008, the Company’s internal
control over financial reporting was effective as of December 31, 2008 and the Company is not aware
of any material weaknesses in its internal control over financial reporting.
(z) The Company and its consolidated subsidiaries employ disclosure controls and procedures
(as such term is defined in Rule 13a-15(e) under the Exchange Act) that are designed to ensure that
information required to be disclosed by the Company in the reports that it files or submits under
the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms, and is accumulated and communicated to the Company’s
management, including its principal executive officer or officers and principal financial officer
or officers, as appropriate, to allow timely decisions regarding disclosure. As disclosed in the
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2009, the Company’s
disclosure controls and procedures was effective as of March 31, 2009 and the Company is not aware
of any material weaknesses in its disclosure controls and procedures.
(aa) Except as would not individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (1) all tax returns required to be filed by the Company or any of its
subsidiaries have been timely filed, (2) (x) all taxes (whether imposed directly or through
withholding) including any interest, fine, sales and use taxes, all taxes which the Company and
each of its subsidiaries is obligated to withhold from amounts owing to
10
employees, creditors and third parties with respect to the period covered by such tax returns,
additions to tax, or penalties applicable thereto due or claimed to be due from such entities have
been timely paid, and (y) no deficiency assessment with respect to a proposed adjustment of the
Company or its subsidiaries’ federal, state, local or foreign taxes is pending or, to the best of
the Company or its subsidiaries’ knowledge, threatened, in each case of (x) and (y), other than
such taxes or adjustments that are being contested in good faith or for which adequate reserves
have been provided, and (3) to the Company and its subsidiaries’ knowledge, there is no tax lien,
whether imposed by any federal, state, foreign or other taxing authority, outstanding against the
assets, properties or business of the Company or its subsidiaries.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Company agrees, as of the date hereof and as
of the Applicable Time, to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, as of the date hereof and as of the Applicable Time, to purchase from the Company, at the
purchase price set forth in Schedule II to the applicable Pricing Agreement the principal amount of
the Securities set forth opposite such Underwriter’s name in Schedule I to the applicable Pricing
Agreement.
3. Delivery and Payment. Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in definitive form to the extent practicable, and in such
authorized denominations and registered in such names as the Representatives may request upon at
least forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the
Company to the Representatives for the account of such Underwriter at the office, on the date and
at the time specified in the applicable Pricing Agreement (or such later date not later than five
business days after such specified date as the Representatives shall designate), which date and
time may be postponed by agreement between the Representatives and the Company or as provided in
Section 8 hereof (such date and time of delivery and payment for the Securities being herein called
the “Closing Date”). Delivery of the Securities shall be made to the Underwriters for the
respective accounts of the several Underwriters against payment by the several Representatives of
the purchase price thereof by wire transfer of Federal (same-day) funds to the account specified by
the Company or as otherwise set forth in the applicable Pricing Agreement.
4. Company Covenants. The Company agrees with each of the Underwriters of any Securities:
(a) To prepare the Final Prospectus as amended and supplemented in relation to the applicable
Securities in a form approved by the Representatives and to file timely such Final Prospectus
pursuant to Rule 424(b) under the Act; to make no further amendment or any supplement to the
Registration Statement or Final Prospectus as amended or supplemented after the Applicable Time and
prior to the Closing Date for such Securities unless the Representatives for such Securities shall
have had a reasonable opportunity to review and comment upon any such amendment or supplement prior
to any filing thereof; to advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Final Prospectus or any amended Final Prospectus has been filed and to
furnish the Representatives with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the Commission pursuant to
Section
13(a), 13(c), 14 or 15(d) of the
13(a), 13(c), 14 or 15(d) of the
11
Exchange Act for so long as the delivery of a prospectus is required in connection with the
offering or sale of such Securities and, during such same period, to advise the Representatives,
promptly after it receives notice thereof, of (i) the issuance by the Commission of any stop order
or of any order preventing or suspending the use of the Final Prospectus, (ii) the suspension of
the qualification of such Securities for offering or sale in any jurisdiction or of the initiation
or threatening of any proceeding for any such purpose, or (iii) any request by the Commission for
the amending or supplementing of the Registration Statement or Final Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order preventing or
suspending the use of the Final Prospectus or suspending any such qualification, promptly to use
its best efforts to obtain the withdrawal of such order;
(b) To give the Representatives notice of any filings made pursuant to the Exchange Act or the
regulations of the Commission thereunder within forty-eight hours prior to the Applicable Time, it
being acknowledged by the Representatives that such notice was given with respect to the Current
Report on Form 8-K, dated June 29, 2009; to give the Representatives notice of its intention to
make any such filing from the Applicable Time to the Closing Date and to furnish the
Representatives with copies of any such documents a reasonable amount of time prior to such
proposed filing. The Company shall prepare the Final Term Sheet and file such Final Term Sheet as
an Issuer Free Writing Prospectus within two business days after the date hereof; provided that the
Company shall furnish the Representatives with copies of any such Final Term Sheet a reasonable
amount of time prior to such proposed filing and will not use or file any such document to which
the Representatives or counsel to the Representatives shall object;
(c) Promptly from time to time to take such action as the Representatives may reasonably
request to qualify such Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may reasonably request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for so long as may be
necessary to complete the distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation, to file a general consent to
service of process in any jurisdiction or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise subject;
(d) To furnish to the Representatives a copy of each proposed Issuer Free Writing Prospectus
prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any
proposed Issuer Free Writing Prospectus to which the Representatives reasonably object; if at any
time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement, the Disclosure Package, the Final
Prospectus or any Preliminary Prospectus, to promptly notify the Representatives and, if requested
by the Representatives, to promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict; provided, however, that this covenant
shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing to the Company by any
Underwriter expressly for use therein;
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(e) To furnish the Underwriters with copies of any Issuer Free Writing Prospectus or the Final
Prospectus in such quantities as the Representatives may from time to time reasonably request, and
if, at any time prior to the earlier of (i) the completion of the initial distribution by each of
the Underwriters of the Securities purchased by such Underwriter under this Agreement or (ii) the
expiration of nine months after the date of the Final Prospectus, any event shall have occurred as
a result of which any Issuer Free Writing Prospectus or the Final Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Issuer Free Writing Prospectus or the Final Prospectus were
delivered, not misleading, or, if for any other reason it shall be necessary during such period to
amend or supplement any Issuer Free Writing Prospectus or the Final Prospectus or to file under the
Exchange Act any document incorporated by reference in any Issuer Free Writing Prospectus or the
Final Prospectus in order to comply with the Act or the Exchange Act, (i) to notify the
Representatives and (ii) upon their request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Issuer Free Writing Prospectus or a supplement to the Final
Prospectus which will correct such statement or omission or effect such compliance; and any Issuer
Free Writing Prospectus and the Final Prospectus and any amendments or supplements thereto
furnished to the Representatives shall be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T;
(f) To make generally available to securityholders of the Company as soon as practicable, but
in any event not later than eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of the Company, Rule 158);
(g) During the period beginning from the Applicable Time and continuing to and including the
Closing Date for such Securities, not to offer, sell, contract to offer or sell or otherwise
dispose of any debt securities of the Company having pricing characteristics similar to the
Securities, except, for the avoidance of doubt, debt securities issued under the Global Medium Term
Note Program of Metropolitan Life Global Funding I, Euro Medium Term Note Program of MetLife
Institutional Funding I, LLC, or any commercial paper program of, or sponsored by, the Company or
any subsidiaries, exceeding an aggregate principal amount of $3 billion without the prior written
consent of the Representatives, which consent shall not be unreasonably withheld.
(h) During a period of five years from the effective date of the Registration Statement, to
furnish to the Representatives copies of all reports or other communications (financial or other)
furnished to stockholders of the Company, and to furnish to the Representatives as soon as they are
available, copies of any reports and financial statements furnished to or filed with the Commission
or any national securities exchange on which the Securities or any class of securities of the
Company is listed (such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission), provided that reports and financial statements
furnished to or filed with the Commission, and publicly
13
available on XXXXX, or furnished on the Company’s website, shall be deemed to have been
furnished to the Representatives under this Section 4(h);
(i) The Company agrees that, unless it obtains the prior consent of the Representatives, and
each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and
the Representatives, it has not made and will not make any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus (other than, for the avoidance of doubt, any
Bloomberg L.P. or other electronic communication regarding any preliminary term sheets or
comparable bond prices and the Final Term Sheet filed pursuant to Section 4(b) hereto). Each
Underwriter agrees, unless it obtains the prior consent of the Company and the Representatives, not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such
Underwriter that otherwise would not be required to be filed by the Company thereunder but for the
action of such Underwriter (other than, for the avoidance of doubt, the Final Term Sheet filed
pursuant to Section 4(b) hereto); and
(j) The Company agrees to promptly notify the Representatives if A.M. Best & Co., Fitch
Ratings (“Fitch”), Xxxxx’x Investors Service (“Xxxxx’x”) and Standard & Poor’s
Ratings Services (“S&P”) or any other “nationally recognized statistical rating
organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, has given notice of
any intended or potential downgrading or any review for a possible change of its rating of any debt
security or the financial strength or the claims paying ability of the Company or any Significant
Subsidiary.
5. Fees and Expenses. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of
counsel and accountants to the Company in connection with the registration of the Securities under
the Act and all other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the
Final Prospectus and any amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing this
Agreement, any Pricing Agreement, any Securities Agreement, any Blue Sky Survey and any other
documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for offering and sale under state
securities laws and insurance securities laws as provided in Section 4(c) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky Survey; (iv) the filing fees incident to, and the
fees and disbursements of counsel for the Underwriters in connection with, securing any required
review by the Financial Industry Regulatory Authority of the terms of the sale of the Securities;
(v) any fees charged by securities rating services for rating the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of any trustee, paying agent or transfer
agent and the fees and disbursements of counsel for any such trustee, paying agent or transfer
agent in connection with a Securities Agreement and the Securities issued pursuant to any
Securities Agreement; (viii) any travel expenses of the Company’s officers and employees and any
other expenses of the Company in connection with attending or hosting meetings with prospective
purchasers of the Securities; and (ix) all other costs and expenses incident to the performance of
the obligations of the Company hereunder which are not otherwise specifically provided for in this
Section. The Underwriters covenant
14
and agree with the Company that the Underwriters will reimburse or cause to be reimbursed the
reasonable out-of-pocket expenses of the Company, including the fees and disbursements of their
counsel, up to an amount not to exceed 0.05% of the principal amount of Securities sold. Except as
provided in this Section, and Sections 7 and 10 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of
the Securities by them and any advertising expenses connected with any offers of the Securities
that they may make.
6. Conditions to Underwriters’ Obligations. The obligations of the Underwriters of any
Securities under the Pricing Agreement relating to such Securities shall be subject, in their
discretion, to the condition that all representations and warranties and other statements of the
Company herein or in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof are, at and as of the Closing Date true and correct,
the condition that the Company shall have performed all of its obligations hereunder and under the
Pricing Agreement relating to such Securities to be performed at or before the Closing Date, and
the following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof; the Final Term Sheet shall
have been filed with the Commission pursuant to Rule 433(d); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have been complied with to
the Representatives’ reasonable satisfaction;
(b) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, shall have
furnished to the Underwriters such written opinion or opinions, dated such Closing Date, with
respect to the incorporation of the Company, the validity of the Securities being delivered on such
Closing Date, the Registration Statement and the Final Prospectus, and such other related matters
as the Underwriters may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxxx Xxxxxxxxx, Chief Counsel — General Corporate, of the Company, shall have
furnished to the Underwriters his written opinion, dated the Closing Date, in form and substance
substantially in the form attached hereto as Annex II:
(d) Xxxxx & XxXxxxx LLP, counsel for the Company, shall have furnished to the Underwriters
their written opinions, each dated the Closing Date, in form and substance substantially in the
form attached hereto as Annex III-A with respect to certain corporate matters, and Annex III-B with
respect to the Registration Statement, Disclosure Package and the Final Prospectus;
(e) The Company will furnish the Representatives with such conformed copies of such opinions,
certificates, letters and documents as the Representatives reasonably
15
request, including, but not limited to, a certificate of the Chief Accounting Officer of the
Company, dated as of the Closing Date, substantially in the form of Annex V hereto;
(f) On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a
letter, dated the date hereof, in form and substance reasonably satisfactory to you, confirming
that they are independent registered public accountants with respect to the Company and the
Company’s subsidiaries within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder, and further to the effect set forth in Annex
VI hereto, and (ii) on the Closing Date for the applicable Securities, Deloitte & Touche LLP shall
have furnished to the Representatives a letter, dated the date of delivery thereof, in form and
substance reasonably satisfactory to you, that reaffirms the statements made in the letter
furnished pursuant to subclause (i) of this Section 6(f), except that the specified date referred
to shall be a date not more than three business days prior to the Closing Date;
(g) Neither the Company nor any Significant Subsidiary shall have sustained (i) since the date
of the latest audited financial statements included or incorporated by reference in the Disclosure
Package any loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Disclosure Package, and (ii)
since the respective dates as of which information is given in the Disclosure Package, there shall
not have been any change in the surplus of MLIC or the capital stock of the Company or any increase
in the long-term debt of the Company and its respective subsidiaries considered as a whole, or any
change, or any development involving a prospective change, in or affecting the business, financial
position, stockholders’ equity or results of operations of the Company and the Significant
Subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Disclosure
Package, the effect of which, in any such case described in clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable or inadvisable to
proceed with the offering or the delivery of the applicable Securities on the terms and in the
manner contemplated in the Final Prospectus;
(h) At or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the debt securities of the Company or any Significant Subsidiary or the financial strength
or claims paying ability of the Company or any Significant Subsidiary by A.M. Best & Co., Fitch,
Xxxxx’x and S&P or any other “nationally recognized statistical rating organization,” as that term
is defined by the Commission in Section 3(a)(62) of the Exchange Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review, with possible negative
implications its rating of any debt security or the financial strength or the claims paying ability
of the Company or any Significant Subsidiary;
(i) At or after the Applicable Time, there shall not have occurred any of the following: (i)
a change in U.S. or international financial, political or economic conditions or currency exchange
rates or exchange controls as would, in the reasonable judgment of the Representatives, be likely
to prejudice materially the success of the proposed issue, sale or distribution of the applicable
Securities, whether in the primary market or in respect of dealings in the secondary market; (ii) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange; (iii) a suspension or material limitation in trading in the Company’s securities on the
New York Stock Exchange; (iv) a suspension or material limitation
16
in clearing and/or settlement in securities generally; (v) a general moratorium on commercial
banking activities declared by either Federal or New York State authorities; or (vi) the material
outbreak or escalation of hostilities involving the United States or the declaration by the United
States of a national emergency or war or any other national or international calamity or emergency
(including without limitation as a result of an act of terrorism) if the effect of any such event
specified in this clause (vi) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities being delivered on the
Closing Date on the terms and in the manner contemplated in the Disclosure Package and the Final
Prospectus;
(j) The Company shall have complied with any request by the Representatives with respect to
the furnishing of copies of the Final Prospectus in compliance with the provisions of Section 4(e)
hereof;
(k) At the Closing Date, the Representatives shall have received a certificate of the Company,
dated as of the Closing Date, to the effect that (i) the representations and warranties of the
Company contained in Section 1 hereof are true and correct in all respects with the same force and
effect as though expressly made at and as of Closing Date and (ii) the Company has complied in all
respects with all agreements and all conditions on its part to be performed under this Agreement at
or prior to the Closing Date; and
(l) Debevoise & Xxxxxxxx LLP, counsel for the Company, shall have furnished to the
Underwriters their written opinion, dated the Closing Date, in form and substance substantially in
the form attached hereto as Annex IV.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
contained in (i) the Registration Statement or any amendment or supplement (when considered
together with the document to which such supplement relates) thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) any Preliminary
Prospectus, Pricing Prospectus, any Issuer Free Writing Prospectus or the Final Prospectus, or any
amendment or supplement (when considered together with the document to which such supplement
relates) thereto, or any “issuer information” filed or required to be filed pursuant to Rule 433(d)
under the Act, or arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability (or action in respect thereof) arises out
17
of or is based upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any Issuer Free Writing Prospectus, Pricing
Prospectus, the Registration Statement or the Final Prospectus, or any such amendment or
supplement(s) in reliance upon and in conformity with written information furnished to the Company
by any Underwriter of the applicable Securities through the Representatives expressly for use
therein.
(b) Each Underwriter will, severally and not jointly, indemnify and hold harmless the Company,
its directors and officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities (or actions in respect thereof) to which the
Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary Prospectus, any Issuer
Free Writing Prospectus, Pricing Prospectus, the Registration Statement, or the Final Prospectus,
or any amendment or supplement (when considered together with the document to which such supplement
relates) thereto, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus,
any Issuer Free Writing Prospectus, Pricing Prospectus, the Registration Statement, the Final
Prospectus or any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the Representatives expressly for
use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; the omission so to notify the indemnifying party shall relieve
it from any liability which it may have to any indemnified party under such subsection, to the
extent the indemnifying party is actually materially prejudiced by such omission. In case any such
action shall be brought against any indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the indemnifying party
or any other indemnified party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation, unless (i) the indemnifying party
and such indemnified party shall have mutually agreed to the contrary, (ii) the indemnifying party
has failed within a reasonable time to retain counsel reasonably satisfactory to such indemnified
party or (iii) the
18
named parties in any such proceeding (including any impleaded parties) include both the
indemnifying party and such indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. No
indemnifying party shall, without the prior written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party. In no event shall the indemnifying party be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same allegations or circumstances.
(d) If the indemnification provided for in this Section 7 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, other than due
to the express provisions thereof, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from the offering of the
applicable Securities to which any such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law, then each indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and the Underwriters
of the applicable Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Final Prospectus relating to the applicable Securities.
The relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the
19
provisions of this subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the applicable Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of
the applicable Securities in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 7 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act. The obligations of the
Underwriters under this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent, is named in the
Registration Statement as about to become a director of the Company) and to each person, if any,
who controls the Company within the meaning of the Act.
8. Defaulting Underwriters. (a) If any Underwriter shall default in its obligation to
purchase the Securities which it has agreed to purchase under the Pricing Agreement relating to
such Securities, the Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the Representatives to
purchase such Securities on such terms. In the event that, within the respective prescribed
periods, the Representatives notify the Company that the Representatives have so arranged for the
purchase of such Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Securities, the Representatives or the Company shall have the right to
postpone the Closing Date for such Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration Statement, the Disclosure
Package or the Final Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the Registration Statement,
the Disclosure Package or the Final Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term “Underwriter” as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of any
defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of shares of such Securities or the aggregate principal
amount of such Securities, as applicable, which remains unpurchased does not exceed ten percent of
the aggregate number of shares of such Securities or the aggregate principal amount of the
Securities, as applicable, to be purchased on such Closing Date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the
20
aggregate number of shares of such Securities or the aggregate principal amount of Securities,
as applicable, which such Underwriter agreed to purchase under the Pricing Agreement relating to
such Securities and, in addition, to require each nondefaulting Underwriter to purchase its pro
rata share (based on the aggregate number of shares of such Securities or the aggregate principal
amount of Securities, as applicable, which such Underwriter agreed to purchase under such Pricing
Agreement) of the Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of shares of such Securities or the aggregate principal
amount of such Securities, as applicable, which remains unpurchased exceeds ten percent of the
aggregate number of shares of such Securities or the aggregate principal amount of such Securities,
as applicable, as referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such
Securities shall thereupon terminate, without liability on the part of any nondefaulting
Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters
as provided in Section 5 hereof and the indemnity and contribution agreements in Section 7 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability for its default.
9. Offering Restrictions. Each Underwriter acknowledges, represents and agrees that it has
not offered, sold or delivered and it will not offer, sell or deliver, any of the Securities, in or
from any jurisdiction except under circumstances that are reasonably designed to result in
compliance with the applicable securities laws and regulations thereof. In particular, each
Underwriter acknowledges, represents and agrees as set forth in Annex VII to this Agreement.
10. Survival. The respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, the Company or any officer
or director or controlling person of the Company and shall survive delivery of and payment for the
Securities.
11. Effect of Termination of Pricing Agreement or Nondelivery of Securities. If any Pricing
Agreement shall be terminated pursuant to Section 8 hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Securities covered by such Pricing Agreement
except as provided in Section 5 and Section 7 hereof; but, if for any other reason, Securities are
not delivered by or on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Securities, but the Company shall then be under no further
liability to any Underwriter in respect of such Securities except as provided in Section 5 and
Section 7 hereof.
21
12. Reliance upon Representatives. In all dealings hereunder, the Representatives shall act on
behalf of the Underwriters of Securities and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such
of the Representatives, if any, as may be designated for such purpose in the applicable Pricing
Agreements.
13. Notices. All statements, requests, notices and agreements hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication; notices to the Underwriters shall be directed to the address of the respective
Representatives as set forth in the applicable Pricing Agreements with a copy to Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxx X.
Xxxxxxxxxx, Esq.; if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration Statement, Attention:
General Counsel, with a copy to Xxxxx & XxXxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000, attention Xxxx X. Xxxxxxxxx, Esq. and Xxxxxxxx Nicenko, Esq. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
14. Successors and Assigns. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company, and, to the extent provided in
Sections 7 and 9 hereof, the officers and directors of the Company and each person who controls the
Company or any Underwriter, and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by virtue of this Agreement
or any such Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
15. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
16. Consent to Jurisdiction. The Company agrees that any legal suit, action or proceeding
against the Company brought by any Underwriter or by any person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, arising
out of or based upon this Agreement or the transactions contemplated hereby may be instituted in
any state or federal court in the Borough of Manhattan, The City of New York, New York, and, to the
fullest extent permitted by applicable law, waives any objection which it may now or hereafter have
to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any suit, action or proceeding.
17. Counterparts. This Agreement and each Pricing Agreement may be executed by any one or more
of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the same instrument.
22
18. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the
purchase and sale of the Securities pursuant to this Agreement, including the determination of the
public offering price of the Securities and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company, on the one hand, and the several
Underwriters, on the other hand, (b) in connection with any offering contemplated by this Agreement
and any Pricing Agreement and the process leading to any such transaction each Underwriter is and
has been acting solely as a principal and is not the agent or fiduciary of the Company, or its
stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will
assume an advisory or fiduciary responsibility in favor of the Company with respect to any such
offering contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters) and no Underwriter
has any obligation to the Company with respect to such offering contemplated hereby except the
obligations expressly set forth in this Agreement and any relevant Pricing Agreement, (d) the
Underwriters and their respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company, (e) the Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto and (f) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and the Company has
consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
19. Entire Agreement. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
20. Waiver of Jury Trial. The Company and each of the Underwriters hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
[Signature pages to follow]
23
Very truly yours,
METLIFE, INC.
| By: | /s/ Xxxx X. Xxxxxxxxxxx
|
Name: Xxxx X. Xxxxxxxxxxx
| Title: | Senior Vice President and Treasurer |
[Signature page to Underwriting Agreement]
Accepted as of the date hereof
on behalf of each of the Underwriters:
on behalf of each of the Underwriters:
X.X. XXXXXX SECURITIES INC.
| By: |
/s/ Xxxxxx Xxxxxxxxx
|
Name: Xxxxxx Xxxxxxxxx
| Title: | Vice President |
XXXXXX XXXXXXX & CO. INCORPORATED
| By: |
/s/ Yurij Slyz
|
Name: Yurij Slyz
| Title: | Vice President |
[Signature page to Underwriting Agreement]
Schedule 1
to the Underwriting Agreement
Issuer Free Writing Prospectuses included in the Disclosure
Package:
The Free Writing Prospectus filed by the Company with the
Commission dated June 30, 2009.
S-1
ANNEX I
PRICING AGREEMENT
June 30, 2009
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the several Underwriters
named in Schedule I hereto
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the several Underwriters
named in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
MetLife, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms
and conditions stated herein (this “Agreement”) and in the Underwriting Agreement, dated
June 30, 2009 (the “Underwriting Agreement”), to issue and sell to the Underwriters named
in Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto
(the “Underwritten Securities”).
Each of the provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this Agreement, the
Applicable Time and the Closing Date. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Each reference to Securities Agreement shall be deemed to refer to the Indenture, dated as of
June 21, 2005 between MetLife, Inc. and The Bank of New York Mellon Trust Company, N. A. (successor
to X.X. Xxxxxx Trust Company, National Association) (the “Subordinated Indenture”) and the
Supplemental Indenture to be dated as of July 8, 2009, between MetLife, Inc. and The Bank of New
York Mellon Trust Company, N. A.) (the “Eighth Supplemental Indenture”). Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Securities pursuant to the
Underwriting Agreement and the address of the Representatives are set forth at the end of
Schedule II hereto.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to issue, sell and deliver to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the authority of the signers
thereof.
[Signature pages to follow]
| Very truly yours, METLIFE, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature
page to Pricing Agreement]
| Accepted as of the date hereof on behalf of each of the Underwriters: |
||||
| X.X. XXXXXX SECURITIES INC. | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
| XXXXXX XXXXXXX & CO. INCORPORATED | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
[Signature page to Pricing Agreement]
SCHEDULE I
TO PRICING AGREEMENT
| Principal Amount of $500,000,000 | ||||
| 10.750% Fixed-to-Floating Junior | ||||
| Subordinated Debentures due 2069 to | ||||
| Underwriters | be Purchased | |||
X.X. Xxxxxx Securities Inc. |
$ | 175,000,000 | ||
Xxxxxx Xxxxxxx & Co. Incorporated |
$ | 175,000,000 | ||
Deutsche Bank Securities Inc. |
$ | 25,000,000 | ||
BNP Paribas Securities Corp. |
$ | 12,500,000 | ||
Credit Suisse Securities (USA) LLC |
$ | 12,500,000 | ||
Daiwa Securities America Inc. |
$ | 12,500,000 | ||
Xxxxxxx, Sachs & Co. |
$ | 12,500,000 | ||
HSBC Securities (USA) Inc. |
$ | 12,500,000 | ||
ING Financial Markets LLC |
$ | 12,500,000 | ||
Xxxxxxx Xxxxx & Associates, Inc. |
$ | 12,500,000 | ||
RBS Securities Inc. |
$ | 12,500,000 | ||
Xxxxxxxx Xxxxxx Van, LLC |
$ | 3,125,000 | ||
Xxxxxxx Capital Markets, LLC |
$ | 3,125,000 | ||
CastleOak Securities, L.P. |
$ | 3,125,000 | ||
Xxxxxx & Company |
$ | 3,125,000 | ||
Xxxxxx Xxxxxxx & Co. Inc. |
$ | 3,125,000 | ||
Xxxxxx X. Xxxxxxx & Company, Inc. |
$ | 3,125,000 | ||
Xxxxxxxxx Capital Partners, LLC |
$ | 3,125,000 | ||
The Xxxxxxxx Capital Group, L.P. |
$ | 3,125,000 | ||
Total |
$ | 500,000,000 | ||
Schedule I-1
SCHEDULE II
TO PRICING AGREEMENT
MetLife, Inc.
$500,000,000
10.750% Fixed-to-Floating Junior Subordinated Debentures due 2069
Final Term Sheet
June 30, 2009
| Issuer: | MetLife, Inc. | |||
| Securities: | 10.750% Fixed-to-Floating Junior Subordinated Debentures due 2069 (the “Junior Subordinated Debentures”) | |||
| Aggregate Principal Amount: | $500,000,000 | |||
| Price to the Public: | 99.981% of principal amount | |||
| Gross Underwriting Discount: | 1.000% | |||
| Proceeds to Issuer Before Expenses: | $494,905,000 | |||
| Pricing Date: | June 30, 2009 | |||
| Settlement Date (T+5): | July 8, 2009 | |||
| Scheduled Redemption Date: | August 1, 2039 | |||
| Final Maturity Date: | August 1, 2069 | |||
| Interest Rate and Interest Payment Dates During Fixed Rate Period: | The Junior Subordinated Debentures will bear interest on their principal amount from and including July 8, 2009 to but excluding August 1, 2039, or earlier redemption, at a fixed rate equal to 10.750% per annum (the “Coupon”), payable semi-annually in arrears on each February 1 and August 1, beginning on February 1, 2010. | |||
Schedule II-1
| Interest Rate and Interest Payment Dates During Floating Rate Period until Final Maturity Date: | Solely in the event that the Junior Subordinated Debentures are not repaid or otherwise redeemed on or before the Scheduled Redemption Date, from and including August 1, 2039 to but excluding August 1, 2069 or earlier redemption, at a floating rate per annum equal to Three-Month LIBOR plus a margin equal to 7.548%, payable quarterly in arrears on each February 1, May 1, August 1 and November 1. | |||
| For the purposes of definition of the term “Three-Month LIBOR” in the Preliminary Prospectus Supplement, with respect to any LIBOR Determination Date, if fewer than three banks selected by the Calculation Agent to provide quotations are quoting as described in the Preliminary Prospectus Supplement, Three-Month LIBOR for that interest period will be the same as Three-Month LIBOR as determined for the previous interest period or, in the case of the interest period beginning on August 1, 2039, 3.202%. | ||||
| Anticipated Ratings*: | Baa1 (Xxxxx’x) / BBB (S&P) / A- (Fitch)* | |||
| Coupon: | 10.750% | |||
| Benchmark Treasury: | UST 3.250% due February 2039 | |||
| Spread to Benchmark Treasury: | T + 640.8 bps | |||
| Benchmark Treasury Price and Yield: | 86-01; 4.342% | |||
| Yield to Maturity: | 10.750% | |||
| Denominations: | $2,000 and integral multiples of $1,000 in excess thereof | |||
| Ranking: | Junior Subordinated | |||
| CUSIP/ISIN: | 00000XXX0 / US59156RAV06 | |||
| Benchmark Treasury: | UST 3.250% due February 2039 | |||
Schedule II-2
| Optional Redemption: | Subject to the provisions of the Replacement Capital Covenant described in the Preliminary Prospectus Supplement, MetLife, Inc. may, at its option redeem the Junior Subordinated Debentures: | |||
| • | in whole or in part, at any time on or after August 1, 2034 at their principal amount plus accrued and unpaid interest to, but excluding, the date of such redemption (the “Par Redemption Amount”); provided that if the Junior Subordinated Debentures are not redeemed in whole, at least $50 million aggregate principal amount of the Junior Subordinated Debentures (excluding any Junior Subordinated Debentures held by MetLife, Inc. or any of its affiliates) must remain outstanding after giving effect to such redemption; | |||
| • | in whole or in part, at any time prior to August 1, 2034, in cases not involving a Tax Event or Rating Agency Event, at the Par Redemption Amount or, if greater, the Make-Whole Redemption Amount; provided that if the Junior Subordinated Debentures are not redeemed in whole, at least $50 million aggregate principal amount of the Junior Subordinated Debentures (excluding any Junior Subordinated Debentures held by MetLife, Inc. or any of its affiliates) must remain outstanding after giving effect to such redemption; and | |||
| • | in whole, but not in part, at any time prior to August 1, 2034, after the occurrence of a Tax Event or Rating Agency Event, at their principal amount plus accrued and unpaid interest to the date of redemption or, if greater, the Special Event Make-Whole Redemption Amount. | |||
| Make-Whole Redemption Amount: means the sum, as calculated by the Premium Calculation Agent, of the present values of the remaining scheduled payments of principal and interest that would have been payable on the Junior Subordinated Debentures to be redeemed to and including August 1, 2034 (not including any portion of those payments of interest accrued as of such redemption date), discounted from their respective scheduled payment dates to such redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 70 basis points; plus accrued and unpaid interest, together with any Compounded Interest, thereon, to the extent permitted by law, to, but excluding, such redemption date. | ||||
Schedule II-3
| Special Event Make-Whole Redemption Amount: means the sum, as calculated by the Premium Calculation Agent, of the present values of the remaining scheduled payments of principal and interest that would have been payable on the Junior Subordinated Debentures to be redeemed to and including August 1, 2034 (not including any portion of those payments of interest accrued as of such redemption date), discounted from their respective scheduled payment dates to such redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 80 basis points; plus accrued and unpaid interest, together with any Compounded Interest, thereon, to the extent permitted by law, to, but excluding, such redemption date. | ||||
| Replacement Capital Covenant: | A Replacement Capital Covenant described in the Preliminary Prospectus Supplement will apply until August 1, 2059. The dates referred to in the Preliminary Prospectus Supplement on which the “applicable percentage” and the types of securities that constitute “qualifying capital securities” (as therein defined) will change are August 1, 2039 and August 1, 2049, respectively. | |||
| Additional Information: | Under the Junior Subordinated Indenture, MetLife, Inc. will be required to use commercially reasonable efforts to obtain stockholder consent to increase the number of authorized shares of its common stock if, at any date, MetLife, Inc.’s Shares Available for Issuance fall below the greater of: | |||
| • | 310 million shares (as adjusted for any stock split, stock dividend, reclassification, recapitalization, split-up, combination, exchange of shares or similar transaction); and | |||
| • | three times the number of shares that MetLife, Inc. would need to issue to raise sufficient proceeds to pay (assuming a price per share equal to the average trading price of shares of MetLife, Inc.’s common stock over the ten-trading day period preceding such date) any then outstanding deferred interest on the Junior Subordinated Debentures (including Compounded Interest thereon), plus 12 additional months of interest (including Compounded Interest) on the Junior Subordinated Debentures, up to a total of ten years of interest (including Compounded Interest). For purposes of determining the amounts, if any, accruing during a Floating Rate Period, the interest will be computed by reference to spot Three-Month LIBOR on the calculation date plus a margin equal to 7.548%. | |||
| Recent Developments: | On June 23, 2009, the Board of Directors (the “Board”) of MetLife, Inc. elected Xxxxxx X. Xxxxx, Xx. as a director of MetLife, Inc., effective immediately. Xx. Xxxxx was also appointed to serve on the Audit, Compensation, and Finance and Risk Policy Committees of the Board, effective immediately. For additional information please see MetLife, Inc.’s Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission on June 29, 2009. | |||
Schedule II-4
| Joint Book-Running Managers (70%): | X.X. Xxxxxx Securities Inc. | |||
| Xxxxxx Xxxxxxx & Co. Incorporated | ||||
| Senior Co-Managers (25%): | Xxxxxxx, Sachs & Co. | |||
| Deutsche Bank Securities Inc. | ||||
| HSBC Securities (USA) Inc. | ||||
| Credit Suisse Securities (USA) LLC | ||||
| Daiwa Securities America Inc. | ||||
| ING Financial Markets LLC | ||||
| BNP Paribas Securities Corp. | ||||
| Xxxxxxx Xxxxx & Associates, Inc. | ||||
| RBS Securities Inc. | ||||
| Joint Co-Managers (5%): | Xxxxxxxx Xxxxxx Van, LLC | |||
| Xxxxxxx Capital Markets, LLC | ||||
| CastleOak Securities, X.X. | ||||
| Xxxxxx & Company | ||||
| Xxxxxx X. Xxxxxxx & Company, Inc. | ||||
| Xxxxxx Xxxxxxx & Co. Inc. | ||||
| Xxxxxxxxx Capital Partners, LLC | ||||
| The Xxxxxxxx Capital Group, L.P. | ||||
| * | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
MetLife, Inc. has filed a registration statement, including a prospectus, and preliminary
prospectus supplement, with the U.S. Securities and Exchange Commission (“SEC”) for the Junior
Subordinated Debentures to which this communication relates. Before you invest, you should read the
prospectus in that registration statement, the preliminary prospectus supplement and the other
documents that MetLife, Inc. has filed with the SEC for more complete information about MetLife,
Inc. and this offering. You may get these documents for free by visiting XXXXX on the SEC web site
at xxx.xxx.xxx. Alternatively, MetLife, Inc. or any underwriter participating in the offering will
arrange to send you the prospectus if you request by calling X.X. Xxxxxx Securities Inc. at (000)
000-0000 (collect) or by calling Xxxxxx Xxxxxxx & Co. Incorporated at (000) 000-0000.
Schedule II-5
ANNEX II
Xxxxxxx Xxxxxxxxx’x Opinion
ANNEX III
XXXXX & XXXXXXX LLP OPINIONS
ANNEX III-A: OPINION
ANNEX III-B: NEGATIVE ASSURANCE LETTER
ANNEX IV
Debevoise & Xxxxxxxx LLP Opinion
ANNEX V
METLIFE, INC.
Management Certificate
Management Certificate
ANNEX VI
DELOITTE & TOUCHE LLP COMFORT LETTER
ANNEX VII
Offering Restrictions
United States of America
The Junior Subordinated Debentures may not be acquired or held by any person who is an employee
benefit plan or other plan or arrangement subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Code, or who is acting on behalf
of or investing the assets of any such plan or arrangement, unless the acquisition and holding of
the Junior Subordinated Debentures by such person will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code.
European Economic Area
In relation to each member state of the European Economic Area which has implemented the Prospectus
Directive (each, a “Relevant Member State”), each Underwriter represents that it has not made and
will not make an offer of the Junior Subordinated Debentures to the public in that relevant member
state, except that it may make an offer of the Junior Subordinated Debentures to the public in that
relevant member state at any time under the following exemptions under the Prospectus Directive (as
defined below), if they have been implemented in that Relevant Member State: (i) to legal entities
which are authorized or regulated to operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in securities; (ii) to any legal entity
which has two or more of (1) an average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than A43,000,000 and (3) an annual net turnover of more than
A50,000,000, as shown in its last annual or consolidated accounts; (iii) to fewer than 100 natural
or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to
obtaining the prior consent of the book-running manager for any such offer; or (iv) in any other
circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer
of Junior Subordinated Debentures shall result in a requirement for the publication by us or any
Underwriter of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this section, the expression an “offer of the Junior Subordinated Debentures to
the public” in relation to any Junior Subordinated Debentures in any relevant member state means
the communication in any form and by any means of sufficient information on the terms of the offer
and the Junior Subordinated Debentures to be offered so as to enable an investor to decide to
purchase or subscribe to purchase the Junior Subordinated Debentures, as the same may be varied in
that member state by any measure implementing the Prospectus Directive in that member state, and
references to the “Prospectus Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each relevant member state.
United Kingdom
Each Underwriter represents that, in connection with the distribution of the Junior Subordinated
Debentures, it has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment activity (within the
meaning of section 21 of the Financial Services and Markets Xxx 0000, or the FSMA, of the United
Kingdom) received by it in connection with the issue or sale of such Junior Subordinated Debentures
or any investments representing the Junior Subordinated Debentures in circumstances in which
section 21(1) of the FSMA does not apply to us and that it has complied and will comply with all
the applicable provisions of the FSMA with respect to anything done by it in relation to any Junior
Subordinated Debentures in, from or otherwise involving the United Kingdom.
Hong Kong
The Junior Subordinated Debentures may not be offered or sold by means of any document other than
(i) in circumstances which do not constitute an offer to the public within the meaning of the
Companies Ordinance (Cap. 32, Laws of Hong Kong), (ii) to “professional investors” within the
meaning of the Securities and Futures Ordinance
Annex VII-1
(Cap. 571, Laws of Hong Kong) and any rules made thereunder or (iii) in other circumstances which
do not result in the document being a “prospectus” within the meaning of the Companies Ordinance
(Cap. 32, Laws of Hong Kong), and no advertisement, invitation or document relating to the Junior
Subordinated Debentures may be issued or may be in the possession of any person for the purpose of
issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of
which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so
under the laws of Hong Kong) other than with respect to Junior Subordinated Debentures which are or
are intended to be disposed of only to persons outside Hong Kong or only to “professional
investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong)
and any rules made thereunder.
Japan
The Junior Subordinated Debentures have not been and will not be registered under the Financial
Instruments and Exchange Law of Japan (the Securities and Exchange Law) and each Underwriter has
agreed that it will not offer or sell any Junior Subordinated Debentures, directly or indirectly,
in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any
person resident in Japan, including any corporation or other entity organized under the laws of
Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to a resident
of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in
compliance with, the Financial Instruments and Exchange Law and any other applicable laws,
regulations and ministerial guidelines of Japan.
Singapore
This prospectus supplement and the accompanying prospectus have not been registered as a prospectus
with the Monetary Authority of Singapore. Accordingly, this prospectus supplement, the accompanying
prospectus and any other document or material in connection with the offer or sale, or invitation
for subscription or purchase, of the Junior Subordinated Debentures may not be circulated or
distributed, nor may the Junior Subordinated Debentures be offered or sold, or be made the subject
of an invitation for subscription or purchase, whether directly or indirectly, to persons in
Singapore other than (i) to an institutional investor under Section 274 of the Securities and
Futures Act, Chapter 289 of Singapore, or the SFA, (ii) to a relevant person, or any person
pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the
SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable
provision of the SFA.
Where the Junior Subordinated Debentures are subscribed or purchased under Section 275 by a
relevant person which is: (a) a corporation (which is not an accredited investor) the sole business
of which is to hold investments and the entire share capital of which is owned by one or more
individuals, each of whom is an accredited investor; or (b) a trust (where the trustee is not an
accredited investor) whose sole purpose is to hold investments and each beneficiary is an
accredited investor, shares, debentures and units of shares and debentures of that corporation or
the beneficiaries’ rights and interest in that trust shall not be transferable for 6 months after
that corporation or that trust has acquired the Junior Subordinated Debentures under Section 275
except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person, or
any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section
275 of the SFA; (2) where no consideration is given for the transfer; or (3) by operation of law.
Annex VII-2
