EXHIBIT 1.1
EXECUTION COPY
METLIFE, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
May 26, 2004
To the Representatives of the several
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
Senior Indenture or Subordinated Indenture, in each case as supplemented by one
or more Supplemental Indentures (each such Senior Indenture or Subordinated
Indenture, as so supplemented, an "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 as of the date hereof and as of the Closing Date
(as hereinafter defined), and agrees with each of the Underwriters, as follows:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-112073) 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"; such prospectus in the form in which it appears in the
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 the "Preliminary Prospectus." Any reference herein to
the Registration Statement, the Base Prospectus, any Preliminary Prospectus 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 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 or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the date of this Agreement,
or the issue date of the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference; each Preliminary 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 and the Final Prospectus delivered to the Representatives for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T;
(b) As of the date hereof, when the Final Prospectus is
first filed or transmitted for filing pursuant to Rule 424 under the Act, when,
prior to the Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any supplement to
the Final Prospectus is filed with the Commission and at the Closing Date, (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 an Indenture, such Indenture, will comply in all
material respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the Exchange
Act and the respective rules thereunder and (ii) neither the Registration
Statement, as amended as of any such time, nor the Final Prospectus, as amended
or supplemented as of any such time, will 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; provided,
however, that 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 (the "Form T-1s") or (ii) the information contained in or omitted from the
Registration Statement, the Final Prospectus or the Preliminary Prospectus or
any amendment thereof or supplement thereto in reliance upon and in conformity
with information relating to such Underwriter or the underwriting arrangements
furnished in writing to the Company by any Underwriter expressly for use in the
Registration Statement and the Final Prospectus;
(c) Each document incorporated or deemed to be
incorporated by reference in the Registration Statement 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, and, when read together with
the other information in the Final Prospectus, at the time the Registration
Statement became effective, at the time the Final Prospectus was issued and at
the Closing Date (as hereinafter defined) did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
(d) Neither the Company nor any subsidiary of the Company
that would qualify as a "Significant Subsidiary" of the Company under Regulation
S-X and is listed on Annex II hereto (each, a "Significant Subsidiary") (for
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avoidance of doubt, One Madison Investment (Cayco) Limited shall be deemed not
to be a Significant Subsidiary for purposes of this Agreement) has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Final Prospectus 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 Final Prospectus, 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 Registration
Statement and the Base Prospectus, otherwise than as described or contemplated
in the Final Prospectus, there has not been any (i) material addition, or
development involving a prospective material addition, to the liability of
Metropolitan Life Insurance Company ("MetLife") 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 MetLife 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;
(e) 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 Final Prospectus 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 as are not material and 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;
(f) 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 Final Prospectus and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which 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; there are no
subsidiaries of the Company that are Significant Subsidiaries that are not
listed on Annex II hereto (other than One Madison Investment (Cayco) Limited);
MetLife 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; and 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 Final Prospectus; and each Significant Subsidiary is 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;
(g) 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;
(h) The Company has an authorized capitalization as set
forth and described in the Final Prospectus, 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 Final
Prospectus, there are no
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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 and purchase plans
and the options or other rights granted and exercised thereunder set forth in
the Final Prospectus accurately and fairly describe the information required to
be shown with respect to such plans, arrangements, options and rights; except as
disclosed in the Final Prospectus, 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;
and all of the issued shares of capital stock or other ownership interests of
each Significant Subsidiary have been duly and validly authorized and issued,
are fully paid and nonassessable and (except as described in the Final
Prospectus and except for directors' qualifying shares) are owned directly or
indirectly by the Company free and clear of all liens, encumbrances, equities or
claims;
(i) 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 (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, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to 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 Final Prospectus;
(j) Each of MetLife, General American Life Insurance
Company, New England Life Insurance Company and Metropolitan Property and
Casualty Insurance Company (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 Final Prospectus, 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;
(k) Each of the Company, the Insurance Subsidiaries and
State Street Research & Management Company 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 Final Prospectus, 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, each of
the Company, the Insurance Subsidiaries and State Street Research & Management
Company 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 none of the Company, any Insurance Subsidiary
or State Street Research & Management Company has
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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 such subsidiary, except as described
in the Final Prospectus or except for any such non-compliance, suspension,
revocation or limitation which would not have, individually or in the aggregate,
a Material Adverse Effect;
(l) 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;
(m) State Street Research & Management Company is duly
registered as an investment advisor in each jurisdiction where it is required to
be so registered to conduct its business with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect; State Street
Research & Management Company 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 Final Prospectus, State Street Research & Management Company
has not 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) State Street Research & Management Company would in
fact be required either to obtain any such additional Approvals or cease or
otherwise limit engaging in certain business and (y) the failure to have such
Approvals or limiting such business would have a Material Adverse Effect; and
State Street Research & Management Company is in compliance with the
requirements of the 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;
(n) 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
the provisions of the certificate of incorporation or by-laws of the Company or
any Significant Subsidiary or any statute or any order, rule or regulation of
any court or insurance regulatory authority or other governmental agency or body
having jurisdiction over the Company or any Significant Subsidiary or any of
their properties, in each case other than such breaches, conflicts, violations,
or defaults which (other than a violation of the certificate of incorporation or
by-laws or similar organizational documents of the Company or a Significant
Subsidiary), 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, 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 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;
(o) Other than as set forth in the Final Prospectus,
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 transactions contemplated by
this Agreement 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; and, to the knowledge of the Company, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
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(p) 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;
(q) The statements set forth in the Final Prospectus
under the captions "Description of Debt Securities" and "Description of the
Senior Notes", insofar as they purport to constitute a summary of the terms of
the Securities, under the caption "Underwriting", and under the captions
"Business - Regulation", "Business - Competition" and "Legal Proceedings", which
have been incorporated therein by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 2003, as updated by the Final
Prospectus, insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete in all material
respects;
(r) The financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement, 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, except for any normal year-end adjustments and
except as described therein;
(s) Deloitte & Touche LLP, which has certified certain
financial statements of the Company and its subsidiaries, is a registered public
accounting firm as required by the Act and the rules and regulations of the
Commission thereunder;
(t) Neither the Company nor any Significant Subsidiary is
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 MetLife and of
certain Insurance Subsidiaries are required to register as investment companies
under the Investment Company Act;
(u) This Agreement and the applicable Pricing Agreements
with respect to the applicable Securities have been duly authorized, executed
and delivered by the Company;
(v) There are no contracts or documents which are
required to be described in the Registration Statement, the Final Prospectus or
the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required; and
(w) 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.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule II to the applicable Pricing Agreement the principal amount or number
of shares, as the case may be, 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
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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
date of the Pricing Agreement relating to the applicable Securities 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 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) 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;
(c) To furnish the Underwriters with copies of the Final
Prospectus (including as it may be amended or supplemented) in such quantities
as the Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the offering
or sale of such Securities, and if at such time any event shall have occurred as
a result of which 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 Final Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Final Prospectus or to file under
the Exchange Act any document incorporated by reference in the Final Prospectus
in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Representatives and upon their request to 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 Final
Prospectus or a supplement to the Final Prospectus which will correct such
statement or omission or effect such compliance; 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;
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(d) 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);
(e) During the period beginning from the date of the
Pricing Agreement for any Securities and continuing to and including the Closing
Date for such Securities, not to offer, sell, contract to sell or otherwise
dispose of any securities of the Company (other than pursuant to employee stock
option plans existing, or on the conversion or exchange of convertible or
exchangeable securities outstanding on the date of such Pricing Agreement) which
are substantially similar to such Securities, without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld; and
(f) 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 deliver 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).
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, the Base Prospectus, any Preliminary
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 Agreement among Underwriters, 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(b) hereof, including
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky Survey;
(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
National Association of Securities Dealers, Inc. ("NASD") 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. 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 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
for such Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder 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) 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; 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
8
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) Xxxxx X. Xxxxxxxx, Executive Vice President and
General Counsel of the Company, shall have furnished to the Underwriters his
written opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) The Company has an authorized capitalization as set
forth and described in the Final Prospectus, 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; securityholders of the Company have no
preemptive or other similar rights with respect to the Securities
arising out of the certificate of incorporation or the by-laws of the
Company or the Delaware General Corporation Law ("DGCL"); except as
disclosed in the Final Prospectus, there are no rights of any person,
corporation or other entity to require registration of any securities
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; the Securities to
be issued and sold to the Underwriters pursuant to this Agreement, the
applicable Pricing Agreements and the applicable Securities Agreements
conform in all material respects to the description thereof contained
in the Final Prospectus;
(ii) All issued shares of capital stock or other ownership
interests of each Significant Subsidiary have been duly authorized and
validly issued, are fully paid and nonassessable, and (except as
described in the Final Prospectus and except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims, other than any lien,
encumbrance, equity or claim which would not have a Material Adverse
Effect;
(iii) The Company and each Significant Subsidiary has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each jurisdiction in which
its ownership or lease of property or the conduct of its business
requires such qualification, except to the extent that the failure to
be so qualified and in good standing would not have a Material Adverse
Effect;
(iv) Each Significant Subsidiary that is required to be
organized or licensed as an insurance company in its jurisdiction of
incorporation is licensed as an insurance company in its jurisdiction
of incorporation, and is duly licensed or authorized as an insurer in
each other jurisdiction where it is required to be so licensed or
authorized to conduct its business as described in the Final
Prospectus, in each case with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect; and,
except as otherwise described in the Final Prospectus, has all other
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; to such counsel's
knowledge, there is no pending or 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 such counsel's
knowledge, no insurance regulatory agency or body has issued any order
or decree impairing, restricting or prohibiting the payment of
dividends by any such Significant Subsidiary to its parent which would
have, individually or in the aggregate, a Material Adverse Effect;
(v) The Company and each Significant Subsidiary has all
necessary Approvals of and from, and has made all Filings with, all
insurance regulatory authorities, all Federal, state, local and other
governmental
9
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 Final Prospectus, 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 such counsel's
knowledge, 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 Final Prospectus or except for
any such suspension, revocation or limitation which would not have,
individually or in the aggregate, a Material Adverse Effect;
(vi) Each Significant Subsidiary that 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 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 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 Final Prospectus, to such counsel's knowledge, no Broker-Dealer
Subsidiary or Investment Advisor Subsidiary 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) such Broker-Dealer Subsidiary or
Investment Advisor Subsidiary would in fact be required either to
obtain any such additional Approvals or cease or otherwise limit
engaging in certain business and (y) the failure to have such Approvals
or limiting such business would have a Material Adverse Effect;
(vii) To such counsel's knowledge and other than as set
forth in the Final Prospectus, there are no legal or governmental
proceedings pending to which the Company or any Significant Subsidiary
is a party or to which any property of the Company or any Significant
Subsidiary is subject, challenging the transactions contemplated by
this Agreement or which, if determined adversely to the Company or any
Significant Subsidiary, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect; and, to such
counsel's knowledge and other than as described or contemplated in the
Final Prospectus, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(viii) The issue and sale of the Securities and the
execution and delivery by the Company of and the compliance by the
Company with all of the provisions of the Securities, the applicable
Securities Agreements, this Agreement and the applicable Pricing
Agreements, 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 and provisions of, or constitute a default under,
any agreement or instrument listed as an exhibit to the Registration
Statement or any other indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which, to the knowledge
of such counsel, 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, except
for such conflicts, breaches, violations or defaults as would not,
individually or in the aggregate, have a Material Adverse Effect and
would not adversely affect the validity or performance of this
Agreement, the applicable Pricing Agreements, the applicable Securities
Agreements and the Securities; nor will such action result in any
violation of the provisions of the certificate of incorporation or
by-laws of the Company or any Significant Subsidiary or any statute or
any order, rule or regulation of any court or insurance regulatory
authority or other governmental agency or body having jurisdiction over
the Company, any Significant Subsidiary or any of their respective
properties; provided, that no opinion need be given with respect to (i)
the Act, the Exchange Act, the Trust Indenture Act, the rules and
regulations issued pursuant to each such act, or any order, rule or
regulation made or established by the NASD, or (ii) any state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
10
(ix) The statements set forth in the Final Prospectus
under the captions "Business - Regulation", "Business - Competition"
and "Legal Proceedings", which have been incorporated therein by
reference to the Company's Annual Report on Form 10-K for the year
ended December 31, 2003, as updated by the Final Prospectus, insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are accurate and complete in all material
respects; and
(x) Each of the documents filed by the Company pursuant
to the Exchange Act, and incorporated by reference into the
Registration Statement and the Final Prospectus as of the date hereof,
when it was filed, complied in all material respects with the
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, except that such counsel need
not express any opinion as to the financial statements and related
notes and schedules and other financial data included or incorporated
by reference therein or excluded therefrom.
In rendering such opinion, such counsel may state that such counsel is
admitted to practice law in the State of New York and that he expresses no
opinion as to the laws of any jurisdiction other than the United States, the
State of New York and the DGCL; and such counsel shall be entitled to rely in
respect of the above opinions upon opinions of local or in-house counsel of the
Company or its subsidiaries and in respect of matters of fact upon certificates
of officers of the Company or its subsidiaries, provided that such counsel shall
state that such counsel believes that both the Underwriters and such counsel are
justified in relying upon such opinions and certificates.
(d) The Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request;
(e) At 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and at the Closing Date for the
applicable Securities, Deloitte & Touche LLP shall have furnished to the
Representatives a letter, dated the respective dates of delivery thereof, in
form and substance reasonably satisfactory to you, confirming that they are
independent 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 III hereto;
(f) The Representatives shall have received from Deloitte
& Touche LLP (and furnished to you in form and substance satisfactory to you) a
review report with respect to "Management's Discussion and Analysis of Financial
Condition and Results of Operations of the Company," as set forth in the
Company's most recent reports on Forms 10-K and 10-Q, respectively, in
accordance with Statement on Standards for Attestation Engagement No. 10 issued
by the Auditing Standards Board of the American Institute of Certified Public
Accountants;
(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 Final Prospectus any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Final Prospectus, and (ii) since the respective dates as of
which information is given in the Final Prospectus, there shall not have been
any change in the surplus of MetLife 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 its subsidiaries considered as a
whole, otherwise than as set forth or contemplated in the Final Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of the
applicable Securities on the terms and in the manner contemplated in the Final
Prospectus;
(h) On or after the date of the Pricing Agreement
relating to the applicable Securities (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. or any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule
11
436(g)(2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any debt security or the financial strength or the
claims paying ability of the Company or any Significant Subsidiary, 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;
(i) On or after the date of the Pricing Agreement
relating to the applicable Securities 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 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 (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 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(c) 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) LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P. counsel for
the Company, shall have furnished to the Underwriters their written opinion,
dated such Closing Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Final Prospectus;
(ii) 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;
(iii) This Agreement, the applicable Pricing Agreements,
the applicable Securities Agreements and the Securities have been duly
authorized, executed and delivered by the Company;
(iv) Each Significant Subsidiary is validly existing as a
corporation and is in good standing under the laws of its jurisdiction
of incorporation, with the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus;
(v) Neither the Company nor any Significant Subsidiary is
an "investment company" required to be registered under the Investment
Company Act, although certain separate accounts of MetLife and of its
subsidiaries are required to register as investment companies under the
Investment Company Act;
12
(vi) The Company and each Significant Subsidiary has made
all filings, qualifications or registrations required to be made
pursuant to, and has obtained all consents, approvals, licenses,
authorizations or validations required to be obtained under any law or
regulation of the United States or any state thereof for the issuance
and sale by the Company of the Securities, the compliance by the
Company with all provisions of this Agreement, the applicable Pricing
Agreements, the applicable Securities Agreements and the Securities,
and the consummation of the transactions herein and therein
contemplated, except for such filings, qualifications, registrations,
consents, approvals, licenses, authorizations or validations (i) as may
be required under state securities, insurance securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters, or (ii) individually or in the aggregate, as would
not affect the validity, performance of, or adversely affect the
consummation of, the transactions contemplated by this Agreement, the
applicable Securities Agreements, the applicable Pricing Agreements and
the Securities or would not have a Material Adverse Effect;
(vii) To such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement or any part thereof has
been issued, and no proceedings for that purpose have been instituted
or are pending or contemplated under the Act;
(viii) The statements set forth in the Final Prospectus
under the captions "Description of Debt Securities" and "Description of
the Senior Notes", insofar as they purport to constitute a summary of
the terms of the Securities, and under the caption "Underwriting",
insofar as it purports to describe the provisions of the laws and
documents referred to therein, are accurate and complete in all
material respects;
(ix) The discussion contained in the Final Prospectus
under the caption "Certain U.S. Federal Income Tax Consequences"
constitutes in all material respects (subject to the limitations and
qualifications set forth therein) a fair and accurate summary of the
material United States federal income tax consequences of the
acquisition, ownership and disposition of the Securities.
(x) The Registration Statement, at the time it became
effective, and the Final Prospectus, as of its date, complied in all
material respects with the requirements of the Act and the general
rules and regulations thereunder, except that in each case such counsel
need not express any opinion as to the financial statements and
schedules and other financial data included or incorporated by
reference therein or excluded therefrom, and, except to the extent
expressly stated in paragraphs (viii) and (ix), such counsel need not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Final
Prospectus;
(xi) The Registration Statement has been declared
effective by the Commission under the Act, and the Final Prospectus has
been filed with the Commission in accordance with Rule 424(b) under the
Act;
(xii) When the Securities have been authenticated and
delivered by the trustee in accordance with the terms of the applicable
Securities Agreements and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement and the applicable
Pricing Agreements, (a) the Securities will constitute the valid and
legally binding obligations of the Company, entitled to the benefits of
the applicable Securities Agreements, and will be enforceable against
the Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity), and (b) the
Securities will be substantially in the form contemplated by the
applicable Securities Agreements, and the Securities and the applicable
Securities Agreements conform to the descriptions thereof in the Final
Prospectus; and
(xiii) The applicable Securities Agreements constitute valid
and legally binding agreements of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity
13
(regardless of whether enforceability is considered in a proceeding at
law or in equity), and the Indenture has been duly qualified under the
Trust Indenture Act.
Such counsel shall also state that while it has not itself
checked the accuracy and completeness of, or otherwise verified, and is not
passing upon and assumes no responsibility for, the accuracy or completeness of
the statements contained in the Registration Statement or the Final Prospectus
except to the limited extent stated in clauses (viii) and (ix) of this Section
6(l), no facts have come to the attention of such counsel which have led such
counsel to believe that, as of the date of the Pricing Agreement, the
Registration Statement or any further amendment thereto made by the Company
prior to such Closing Date (other than the financial statements and schedules
and other financial information contained therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date and as of such Closing
Date, the Final Prospectus or any further amendment or supplement thereto made
by the Company prior to such Closing Date (other than the financial statements
and schedules and other financial information contained therein, as to which
such counsel need express no opinion) contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and such counsel does not know of any amendment to the
Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the Final
Prospectus which are not filed or described as required.
In rendering such opinion, such counsel may state that such
counsel is admitted to practice law in the State of New York and that it
expresses no opinion as to the laws of any jurisdiction other than the United
States, the State of New York and the DGCL; and such counsel shall be entitled
to rely in respect of the above opinions upon opinions of local or in-house
counsel of the Company or its subsidiaries and in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries, provided that
such counsel shall state that such counsel believes that both the Underwriters
and such counsel are justified in relying upon such opinions and certificates.
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, the Final Prospectus
or any other prospectus relating to the Securities, 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, 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 of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Final Prospectus
and any other prospectus relating to the Securities, 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 in the Final Prospectus; provided,
further, that the Company shall not be liable to any Underwriter under this
Section 7(a) with respect to any Preliminary Prospectus to the extent that a
court of competent jurisdiction has found by final and nonappealable order that
any such loss, claim, damage or liability of such Underwriter results from the
fact that such Underwriter sold Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Final Prospectus as then amended or supplemented (it being understood that
if at the time of any such claim such Underwriter shall certify that it has sent
or given the Final Prospectus as
14
then amended or supplemented to any person making such claim at or prior to the
written confirmation of such sale, it shall be presumed that such Final
Prospectus has been so sent or given unless the Company shall have sustained the
burden of proving, in a court of competent jurisdiction by a final and
nonappealable order, that the facts are otherwise), if (i) such delivery to such
person is required by Section 5 of the Act, (ii) the Company has furnished
copies of such Final Prospectus as amended or supplemented to such Underwriter a
reasonable period of time prior to such Underwriter being required so to deliver
such Final Prospectus as amended or supplemented and (iii) the untrue or alleged
untrue statement or omission or alleged omission of material fact contained in
the Preliminary Prospectus was corrected by such Final Prospectus as amended or
supplemented.
(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 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, the Registration Statement, the Final Prospectus and any
other prospectus relating to the Securities, 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, the Registration
Statement, the Final Prospectus and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; 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
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
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.
15
(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 or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters of the 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 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
16
Statement 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 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 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. 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.
10. 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.
11. 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.
12. 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
Representatives shall be directed to the address of the Representatives as set
forth in the applicable Pricing Agreements with a copy to Xxxxxxx,
00
Arps, Slate, Xxxxxxx & Xxxx LLP, 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of Xxxxx X. Xxxxxxxxxx, Esq.; and if to the Company shall be delivered
or sent by mail, telex or facsimile transmission to MetLife, Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
13. 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.
14. 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.
15. 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 Securities 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.
16. Offering Restrictions. Each of the Underwriters severally
represents and agrees that it has not offered, sold or delivered and it will not
offer, sell or deliver, directly or indirectly, any of the Securities, or
distribute the Preliminary Prospectus, the Final Prospectus or any other
offering material relating to the Securities, in or from any jurisdiction except
under circumstances that will result in compliance with the applicable laws and
regulations thereof and that will not impose any obligations on the Company,
except as set forth in this Agreement and the applicable Pricing Agreement. In
particular, each Underwriter severally represents and agrees as set forth in
Annex IV to this Agreement.
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.
18
Very truly yours,
METLIFE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice
President and Chief
Financial Officer
Accepted as of the date hereof
on behalf of each of the Underwriters:
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
---------------------
Name: Xxxx Xxxxx
Title: Principal
19
ANNEX I
PRICING AGREEMENT
[ ]
As Representatives of the
several Underwriters
named in Schedule I hereto
c/o [ ]
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 ___________, 2004 (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 "Designated
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 and the Closing Date, except that each representation and warranty
which refers to the Final Prospectus in Section 1 of the Underwriting Agreement
shall be deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Final Prospectus (as therein defined)
and also a representation and warranty as of the date of this Agreement in
relation to the Final Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Agreement. 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. 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 Designated
Securities pursuant to the Underwriting Agreement and the address of the
Representatives are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Base
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the number of shares or the principal amount, as the case may be, of Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
I-1
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.
Very truly yours,
METLIFE, INC.
By:________________________
Name:
Title:
Accepted as of the date hereof
on behalf of each of the Underwriters:
By: _____________________________
Name:
Title:
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SCHEDULE I
TO PRICING AGREEMENT
NUMBER OF SHARES
OR PRINCIPAL
AMOUNT OF
SECURITIES TO
UNDERWRITERS BE PURCHASED
------------ ------------
------------------------------------- ..........................................................
------------------------------------- ..........................................................
------------------------------------- ..........................................................
------------------------------------- ..........................................................
----------------
Total $
================
ANNEX II
SIGNIFICANT SUBSIDIARY
METROPOLITAN LIFE INSURANCE COMPANY (NY)
SCHEDULE II
TO PRICING AGREEMENT
Underwriting Agreement dated ______________, 2004
Registration Statement No. 333-____________
Title, Purchase Price and Description of Securities
Title:
Applicable Securities Agreement:
Number or Aggregate Principal Amount:
Price to the Public:
Purchase Price by Underwriters (include accrued interest or
amortization, if any):
Sinking Fund Provisions:
Redemption Provisions:
Securities into which Convertible or Exchangeable:
Maturity:
Interest Rate:
Interest Payment Dates:
Liquidation Preferences:
Dividends:
Voting Rights:
Other Provisions:
Closing Date, Time and Location:
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Underwriters:
Other Terms, if any: [over-allotment options] [description of particular tax,
accounting or other unusual features of the Securities]
ANNEX III
June XX, 2004
[Address to underwriters]
Dear Ladies and Gentlemen:
We have audited the consolidated balance sheets of MetLife, Inc. and
subsidiaries (the "Company") as of December 31, 2003 and 2002, and the related
consolidated statements of income, stockholders' equity and cash flows for each
of the three years in the period ended December 31, 2003, and the related
financial statement schedules, all included in the Company's annual report on
Form 10-K for the year ended December 31, 2003 ("Form 10-K"), and incorporated
by reference in registration statement (No. 333-112073) on Form S-3 filed by the
Company under the Securities Act of 1933 (the "Act"); our report with respect
thereto is also incorporated by reference in that registration statement. The
registration statement, as amended on March 4, 2004, is herein referred to as
the registration statement. We have also reviewed (a) the unaudited interim
condensed consolidated balance sheet of the Company as of March 31, 2004, the
unaudited interim condensed consolidated statements of income for the
three-month periods ended March 31, 2004 and 2003, the unaudited interim
condensed consolidated statements of cash flows for the three-month periods
ended March 31, 2004 and 2003 and the unaudited interim condensed consolidated
statement of stockholders' equity for the three-month period ended March 31,
2004 included in the Company's Form 10-Q for the quarter ended March 31, 2004
("First Quarter Form 10-Q") and incorporated by reference in the registration
statement as indicated in our report dated May 5, 2004; (b) the Company's
Management's Discussion and Analysis of Financial Condition and Results of
Operations for the year ended December 31, 2003, included in the Company's Form
10-K, as indicated in our report dated June __, 2004; and (c) the Company's
Management's Discussion and Analysis of Financial Condition and Results of
Operations for the three-month periods ended March 31, 2004 and 2003 included in
the First Quarter Form 10-Q, as indicated in our report dated June __, 2004; our
reports with respect thereto are attached.
In connection with the registration statement --
1. We are independent certified public accountants with respect to the
Company within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Securities and Exchange
Commission ("SEC").
2. In our opinion, the consolidated financial statements and financial
statement schedules audited by us and incorporated by reference in
the registration statement comply as to form in all material
respects with the applicable accounting requirements of the
Securities Exchange Act of 1934, and the related rules and
regulations adopted by the SEC.
3. We have not audited any consolidated financial statements of the
Company as of any date or for any period subsequent to December 31,
2003; although we have conducted an audit for the year ended
December 31, 2003, the purpose (and therefore the scope) of the
audit was to enable us to express our opinion on the consolidated
financial statements as of December 31, 2003, and for the year
ended, but not on the consolidated financial statements for any
interim period within that year. Therefore, we are unable to and do
not express any opinion on: (a) the unaudited interim condensed
consolidated balance sheet as of March 31, 2004, the related
unaudited interim condensed consolidated statements of income and
cash flows for the three-month periods ended March 31, 2004 and
2003, and the unaudited interim condensed consolidated statement of
stockholders' equity for the three-month period ended March 31, 2004
included in the First Quarter Form 10-Q, incorporated by reference
in the registration statement; or
II-1
(b) the consolidated financial position, consolidated results of
operations, or consolidated cash flows as of any other date or for
any period subsequent to December 31, 2003.
4. For purposes of this letter we have read the 2004 minutes of
meetings of MetLife, Inc.'s stockholders, board of directors,
executive committee, audit committee, compensation committee,
corporate social responsibility committee and the nominating and
corporate governance committee as set forth in the minute books at
____, 2004, officials of the Company having advised us that the
minutes of all such meetings or summary of such meetings through
that date were set forth therein and have carried out other
procedures to _____, 2004, (our work did not extend to _____, 2004).
5. With respect to the three-month periods ended March 31, 2004 and
2003, we have inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether the
unaudited interim condensed consolidated balance sheet as of March
31, 2004, the related unaudited interim condensed consolidated
statements of income for the three-month periods ended March 31,
2004 and 2003, the unaudited interim condensed consolidated
statements of cash flows for the three-month periods ended March 31,
2004 and 2003 and the unaudited interim condensed consolidated
statement of stockholders' equity for the three-month period ended
March 31, 2004, incorporated by reference in the registration
statement, comply as to form in all material respects with the
applicable accounting requirements of the Securities Exchange Act of
1934 as it applies to Form 10-Q and the related rules and
regulations adopted by the SEC.
The foregoing procedures do not constitute an audit of financial statements
conducted in accordance with auditing standards generally accepted in the United
States of America. Also, they would not necessarily reveal matters of
significance with respect to the comments in the following paragraph.
Accordingly, we make no representations regarding the sufficiency of the
foregoing procedures for your purposes.
6. Nothing came to our attention as a result of the foregoing
procedures, however, that caused us to believe that the unaudited
interim condensed consolidated financial statements described in
item 5 do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Exchange Act of
1934 as it applies to Form 10-Q and the related rules and
regulations adopted by the SEC.
7. Company officials have advised us that no consolidated financial
statements as of any date or for any period subsequent to March 31,
2004, are available; accordingly, the procedures carried out by us
with respect to changes in consolidated financial statement items
after March 31, 2004, have, of necessity, been even more limited
than those with respect to the periods referred to in item 5. We
have inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether (a) at
____, 2004, there was any change in the capital stock, increase in
long-term debt or any decreases in consolidated assets or
stockholders' equity of the consolidated companies as compared with
amounts shown in the March 31, 2004, unaudited interim condensed
consolidated balance sheet incorporated by reference in the
registration statement or (b) for the period from April 1, 2004 to
_____, 2004, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues
or in the total or per-share amounts of net income. On the basis of
these inquiries and our reading of the minutes as described in item
4, nothing came to our attention that caused us to believe that
there was any such change, increase, or decrease, except in all
instances for changes, increases, or decreases that the registration
statement discloses have occurred or may occur.
8. For purposes of this letter, we have also read the items identified
by you on the attached copy of Form 10-K, the Prospectus Supplement
to the registration statement dated May __, 2004 and Proxy Statement
for the Annual Meeting of Shareholders held on April 27, 2004, and
have performed the following procedures, which were applied as
indicated with respect to the symbols explained below --
[SYMBOLS TO BE ADDED]
II-2
9. It should be noted that we make no representation regarding
questions of legal interpretation or regarding the sufficiency for
your purposes of the procedures enumerated in the preceding
paragraph; also, such procedures would not necessarily reveal any
material misstatements of the amounts or percentages listed above.
Further, we have addressed ourselves solely to the foregoing data as
set forth in the registration statement and make no representations
regarding the adequacy of disclosures or regarding whether any
material facts have been omitted.
10. This letter is solely for the information of the addressees and to
assist the underwriters in conducting and documenting their
investigation of the affairs of the Company in connection with the
offering of the securities covered by the registration statement,
and it is not to be used, circulated, quoted, or otherwise referred
to within or without the underwriting group for any purpose,
including but not limited to the registration, purchase, or sale of
securities, nor is it to be filed with or referred to in whole or in
part in the registration statement or any other document, except
that reference may be made to it in the underwriting agreement or in
any list of closing documents pertaining to the offering of the
securities covered by the registration statement.
Yours truly,
II-3
ANNEX IV
OFFERING RESTRICTIONS
Each underwriter has severally represented and agreed specifically
that: (a) it has not offered or sold and, prior to the expiry of a period of six
months from the issue date of the senior notes, will not offer or sell any such
senior notes to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (b) 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 Act 2000 (the "FSMA")) received
by it in connection with the issue or sale of any such senior notes in
circumstances in which section 21(1) of the FSMA does not apply to the Company;
and (c) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the senior notes in,
from or otherwise involving the United Kingdom.
