Exhibit 1.1
EXECUTION COPY
METLIFE, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
July 20, 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
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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 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;
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(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 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
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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 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
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Effect; and, to the knowledge of the Company, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(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.
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3. Delivery and Payment. Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter at the office, on the date
and at the time specified in the applicable Pricing Agreement (or such later
date not later than five business days after such specified date as the
Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Underwriters for the respective accounts of the several Underwriters against
payment by the several Representatives of the purchase price thereof by wire
transfer of Federal (same-day) funds to the account specified by the Company or
as otherwise set forth in the applicable Pricing Agreement.
4. Company Covenants. The Company agrees with each of the Underwriters of
any Securities:
(a) To prepare the Final Prospectus as amended and supplemented in
relation to the applicable Securities in a form approved by the Representatives
and to file timely such Final Prospectus pursuant to Rule 424(b) under the Act;
to make no further amendment or any supplement to the Registration Statement or
Final Prospectus as amended or supplemented after the 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
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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;
(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:
8
(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 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
9
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
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
10
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;
(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) [Reserved]
(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;
11
(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
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;
12
(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;
(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
13
(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 (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
14
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 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
15
party be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same allegations or circumstances.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, other than due
to the express provisions thereof, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offering of
the applicable Securities to which any such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law 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
16
respective prescribed periods, the Representatives notify the Company that the
Representatives have so arranged for the purchase of such Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Securities, the Representatives or the Company shall have the right to
postpone the Closing Date for such Securities for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement 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.
17
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 Skadden, 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.
18
EXECUTION COPY
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.
Very truly yours,
METLIFE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Treasurer
Accepted as of the date hereof
on behalf of each of the Underwriters:
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ Xxx Xxxxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxxxx
Title: Managing Director
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:
I-2
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
This draft is furnished solely for the purpose of indicating the form of letter
that we would expect to be able to furnish Citigroup Global Markets Inc. and
Wachovia Capital Markets, LLC in response to their request, the matters expected
to be covered in the letter, and the nature of the procedures that we would
expect to carry out with respect to such matters. Based on our discussions with
Citigroup Global Markets Inc. and Wachovia Capital Markets, LLC, it is our
understanding that the procedures outlined in this draft letter are those they
wish us to follow. Unless Citigroup Global Markets Inc. and Wachovia Capital
Markets, LLC inform us otherwise, we shall assume that there are no additional
procedures they wish us to follow. The text of the letter itself will depend, of
course, on the results of the procedures, which we would not expect to complete
until shortly before the letter is given and in no event before the cutoff date
indicated therein.
July 23, 2004
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
As Underwriters and Representatives of the Several Underwriters
$150,000,000 of 5.50% Senior Notes due 2014 and $350,000,000 of 6.375%
Senior Notes due 2034 of MetLife, Inc.
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
c/o Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Dear Sirs and Mesdames:
We refer to our letter of June 3, 2004, relating to the registration statement
(No. 333-112073) of MetLife, Inc. ("the Company"). We reaffirm as of the date
hereof and as though made on the date hereof all statements made in that letter
except that, for the purposes of this letter --
A. The registration statement to which this letter relates is as
amended on July 20, 2004.
B. The reading of minutes described in paragraph 4 of that letter has
been carried out through July 21, 2004 (our work did not extend to
July 23, 2004).
C. The procedures and inquiries covered in paragraph 7 of that letter
are revised with the following procedures and inquiries. With
respect to the period from April 1, 2004 to June 30, 2004, we have--
i. Read the unaudited draft consolidated financial statements of
the Company as of and for the three and six-month periods
ended June 30, 2004 and 2003 furnished to us by the Company,
officials of the Company
having advised us that no such financial statements as of any
date or for any period subsequent to June 30, 2004, were
available.
ii. Inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether
the unaudited draft consolidated financial statements referred
to in C(i) are stated on a basis substantially consistent with
that of the audited consolidated financial statements
incorporated by reference in the registration statement.
Nothing came to our attention as a result of the foregoing procedures,
however, that caused us to believe that --
iii. (a) At June 30, 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 condensed consolidated balance sheet
included in the Company's 2004 First Quarter Form 10-Q,
incorporated by reference in the registration statement,
except in all instances for changes, increases, or decreases
that the registration statement discloses have occurred or may
occur and except as described below, or (b) for the three and
six-month periods ended June 30, 2004, there were any
decreases, as compared to the three and six-month periods
ended June 30, 2003, in consolidated revenues or in the total
or per-share amounts of net income, except in all instances
for changes, increases or decreases that the registration
statement discloses have occurred or may occur.
iv. As mentioned in paragraph C(i), Company officials have advised
us that no consolidated financial statements as of any date or
for any period subsequent to June 30, 2004 are available;
accordingly no procedures have been carried out by us with
respect to changes in consolidated financial statement items
after June 30, 2004.
Yours truly,
DELOITTE & TOUCHE LLP
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.
