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25,000,000 SHARES OF COMMON STOCK
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
August 7, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
MetLife, Inc., a Delaware corporation (the "Company"), and Santusa
Holding, S.L. (the "Selling Shareholder"), confirm their agreement with Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx") with respect to the sale by the Selling Shareholder and the purchase by
Xxxxxxx Xxxxx of 25,000,000 shares of Common Stock, par value $.01 per share, of
the Company ("Common Stock"). The aforesaid 25,000,000 shares of Common Stock
are hereinafter called, collectively, the "Securities".
The Company and the Selling Shareholder understand that the Securities
may be offered by Xxxxxxx Xxxxx from time to time as set forth in the Final
Prospectus.
1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to Xxxxxxx Xxxxx as of the date hereof and as of the
Closing Date (as hereinafter defined), and agrees with Xxxxxxx Xxxxx, as
follows:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-62782) 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
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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 Xxxxxxx Xxxxx 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;
(ii) 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, will comply in all material respects
with the applicable requirements of the 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 such time, will contain any untrue
statement of a material fact
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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 the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment thereof
or supplement thereto in reliance upon and in conformity with
information relating to Xxxxxxx Xxxxx or the underwriting arrangements
furnished in writing to the Company by Xxxxxxx Xxxxx expressly for use
in the Registration Statement and the Final Prospectus;
(iii) 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 did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(iv) Neither the Company nor any of its subsidiaries listed on
Schedule B hereto (the "Significant Subsidiaries" and, individually, a
"Significant Subsidiary") 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 Significant 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, there has not been any (i) material addition, or
development involving a prospective material addition, to Metropolitan
Life Insurance Company's ("MetLife") liability 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 this 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
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statutory accounting or U.S. generally accepted accounting principles
("GAAP") basis, as applicable) of the Company and its subsidiaries
considered as a whole, otherwise than as described or contemplated in
the Final Prospectus;
(v) 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;
(vi) The Company has been duly incorporated and is validly
existing as a corporation, and upon payment of the franchise taxes owed
through the end of August 2001, will be 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 it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified and in good standing in any
such jurisdiction; there are no subsidiaries of the Company that are
material to the Company considered as a whole which are not listed on
Schedule B hereto; and each Significant Subsidiary has been duly
incorporated and 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 to do business 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 would not have a Material Adverse Effect;
(vii) 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
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the Company including, without limitation, the Securities to be sold by
the Selling Shareholder, have been duly and validly authorized and
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 the Common Stock or any other securities in connection with
the filing of the Registration Statement and the issuance and sale to
Xxxxxxx Xxxxx pursuant to this Agreement; 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;
(viii) The Securities have been duly authorized and validly
issued, and are fully paid and nonassessable, and the Securities
conform to all statements relating thereto contained in the Final
Prospectus;
(ix) Each Significant Subsidiary that is required to be
organized or licensed as an insurance company in its jurisdiction of
incorporation (an "Insurance Subsidiary") is duly organized and
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
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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 the 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;
(x) The Company and each Significant Subsidiary has all
necessary Approvals of and from, and has made all filings,
registrations and declarations (collectively, the "Filings") with, all
insurance regulatory authorities, all Federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, necessary to own, lease, license and use
its properties and assets and to conduct its business in the manner
described in the Final Prospectus, except where the failure to have
such Approvals or to make such Filings would not have, individually or
in the aggregate, a Material Adverse Effect; to the knowledge of the
Company, the Company and each Significant Subsidiary is in compliance
with all applicable laws, rules, regulations, orders, by-laws and
similar requirements, including in connection with registrations or
memberships in self-regulatory organizations, and all such Approvals
and Filings are in full force and effect and neither the Company nor
any Significant Subsidiary has received any notice of any event,
inquiry, investigation or proceeding that would reasonably be expected
to result in the suspension, revocation or limitation of any such
Approval or otherwise impose any limitation on the conduct of the
business of the Company or any Significant Subsidiary, except as
described in the Final Prospectus or except for any such suspension,
revocation or limitation which would not have, individually or in the
aggregate, a Material Adverse Effect;
(xi) 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;
(xii) Each Significant Subsidiary which is engaged in the
business of acting as a broker-dealer or an investment advisor
(respectively, a "Broker-Dealer Subsidiary" and an "Investment Advisor
Subsidiary") is duly licensed or registered as a broker-dealer or
investment advisor, as the case may be, in each jurisdiction where it
is required to be so licensed or registered to conduct its business, in
each case, with such exceptions as would not have, individually or in
the aggregate, a Material Adverse Effect; each Broker-Dealer Subsidiary
and each Investment Advisor Subsidiary has all other necessary
Approvals of and from all applicable regulatory authorities, including
any self-regulatory organization, to conduct its businesses, in each
case with such exceptions, as would not have, individually or in the
aggregate, a Material Adverse Effect; except as otherwise
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described in the Final Prospectus, none of the Broker-Dealer
Subsidiaries or Investment Advisor Subsidiaries has received any
notification from any applicable regulatory authority to the effect
that any additional Approvals from such regulatory authority are needed
to be obtained by such subsidiary in any case where it could be
reasonably expected that (i) any of the Broker-Dealer Subsidiaries or
Investment Advisor Subsidiaries would in fact be required either to
obtain any such additional Approvals or cease or otherwise limit
engaging in certain business and (ii) the failure to have such
Approvals or limiting such business would have a Material Adverse
Effect; and each Broker-Dealer Subsidiary and each Investment Advisor
Subsidiary is in compliance with the requirements of the broker-dealer
and investment advisor laws and regulations of each jurisdiction which
are applicable to such subsidiary, and has filed all notices, reports,
documents or other information required to be filed thereunder, in each
case with such exceptions as would not have, individually or in the
aggregate, a Material Adverse Effect;
(xiii) The sale of the Securities pursuant to this Agreement,
and compliance by the Company with all of the provisions of this
Agreement, 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 of its Significant
Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Significant Subsidiaries 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 of its Significant
Subsidiaries 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 of its Significant
Subsidiaries 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 no filing, authorization, approval, order, consent,
registration or qualification of or with any such court or insurance
regulatory authority or other governmental agency or body is required
for the sale of the Securities, except (i) the registration under the
Act of the Securities; and (ii) such authorizations, approvals, orders,
consents, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by Xxxxxxx Xxxxx;
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(xiv) Other than as set forth in the Final Prospectus, there
are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party, or to which any property of the
Company or any of its subsidiaries is subject, challenging the
transactions contemplated by this Agreement or which, if determined
adversely to the Company or its subsidiaries, could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect; and, to the knowledge of the Company, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(xv) 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 or any of its properties may be bound,
which violation or default would have, individually or in the
aggregate, a Material Adverse Effect;
(xvi) The statements set forth in the Final Prospectus under
the caption "Description of Common Stock", insofar as they purport to
constitute a summary of the terms of the Common Stock, and under the
captions "Legal Proceedings Update" and "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,
2001, 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;
(xvii) 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;
(xviii) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
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(xix) 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 certain Insurance Subsidiaries are required to register as
investment companies under the Investment Company Act;
(xx) This Agreement has been duly authorized, executed and
delivered by the Company;
(xxi) 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
(xxii) 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.
(b) Representations and Warranties by the Selling Shareholder. The
Selling Shareholder represents and warrants to Xxxxxxx Xxxxx as of the date
hereof and as of the Closing Date, and agrees with Xxxxxxx Xxxxx, as follows:
(i) The information provided by the Selling Shareholder in (A)
the Base Prospectus, which consists solely of (i) the last two
sentences in the first paragraph under the caption "Selling
Stockholders", (ii) the name "Santusa Holding, S.L.", and the figure
"30,000,000" set forth opposite such name under the heading "Number of
Shares of Common Stock Beneficially Owned Prior to this Offering", each
of which appears in the table found under the caption "Selling
Stockholders", and (iii) the sixth paragraph under the caption "Selling
Stockholders" and (B) the Final Prospectus, which consists solely of
(i) the phrase "Santusa Holding, S.L. ("Santusa"), an affiliate of
Banco Santander Central Hispano, S.A." and the sentence "Santusa's
address is Xxxxx xx xx Xxxxxxxxxx 00, 00000 Xxxxxx, Xxxxx", each of
which occurs in the initial paragraph under the caption "Selling
Stockholder" in the Final Prospectus, (ii) the name "Santusa Holding,
S.L.", which appears in the table found under the caption "Selling
Stockholder" in the Final Prospectus and (iii) the figures
"30,000,000", "25,000,000" and "5,000,000" which appear in the table
found under the caption "Selling Stockholder" in the Final Prospectus,
is true, correct and complete and does not contain any untrue statement
of a material fact or omit to state any material fact necessary to make
such information not misleading.
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(ii) The Selling Shareholder has the full right, power and
authority to enter into this Agreement, and to sell, transfer and
deliver the Securities to be sold by the Selling Shareholder under this
Agreement; the execution and delivery of this Agreement, and the sale
and delivery of the Securities to be sold by the Selling Shareholder
and the consummation of the transactions contemplated under this
Agreement and compliance by the Selling Shareholder with its
obligations under this Agreement have been duly authorized by the
Selling Shareholder and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any tax (other than capital gains tax), lien, charge or
encumbrance upon the Securities to be sold by the Selling Shareholder
or any property or assets of the Selling Shareholder pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which the
Selling Shareholder is a party or by which the Selling Shareholder may
be bound, or to which any of the property or assets of the Selling
Shareholder is subject, nor will such action result in any violation of
the provisions of the charter or by-laws or other organizational
instrument of the Selling Shareholder, if applicable, or any applicable
treaty, law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Selling Shareholder or any of its
properties;
(iii) The Selling Shareholder has and will at the Closing Date
have good and marketable title to the Securities to be sold by the
Selling Shareholder under this Agreement, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind (collectively, "Liens"), other than pursuant to
this Agreement; and upon delivery of such Securities and payment of the
purchase price therefor as contemplated in this Agreement, assuming
Xxxxxxx Xxxxx has no notice of any adverse claim, Xxxxxxx Xxxxx will
receive good and marketable title to the Securities purchased by it
from the Selling Shareholder, free and clear of any Lien;
(iv) The Selling Shareholder has not taken, and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities;
(v) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the performance by the Selling Shareholder of its
obligations under this Agreement, or in connection with the sale and
delivery of the Securities under this Agreement or the consummation
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of the transactions contemplated by this Agreement, except such as may
have previously been made or obtained or as may be required under the
Act or the rules thereunder or state securities laws; and
(vi) During a period of 90 days from the date of the Final
Prospectus, the Selling Shareholder will not, without the prior written
consent of Xxxxxxx Xxxxx, (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under
the Securities Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise; the
foregoing sentence shall not apply to the Securities to be sold under
this Agreement.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Selling
Shareholder agrees to sell to Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx agrees to
purchase from the Selling Shareholder, at the purchase price set forth in
Schedule A, the Securities. Immediately following the closing of purchase and
sale of the Securities hereunder, Xxxxxxx Xxxxx shall sell to the Company, and
the Company shall purchase from Xxxxxxx Xxxxx, 10,000,000 shares of common stock
at the purchase price referred to in the immediately preceding sentence.
3. Delivery and Payment. Payment of the purchase price for, and
delivery of certificates for, the Securities shall be made at the offices of
Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 or at such other
place as shall be agreed upon by Xxxxxxx Xxxxx and the Company and the Selling
Shareholder, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section 8),
or such other time not later than ten business days after such date as shall be
agreed upon by Xxxxxxx Xxxxx, the Selling Shareholder and the Company (such time
and date of payment and delivery being herein called "Closing Date").
Payment shall be made to the Selling Shareholder by wire transfer of
immediately available funds to bank accounts designated by the Selling
Shareholder, against delivery to Xxxxxxx Xxxxx of certificates for the
Securities to be purchased by Xxxxxxx Xxxxx.
4. Company Covenants. The Company agrees with Xxxxxxx Xxxxx:
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(a) To prepare the Final Prospectus as amended and supplemented in
relation to the Securities in a form approved by Xxxxxxx Xxxxx 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 this Agreement relating
to the Securities and prior to the Closing Date for the Securities unless
Xxxxxxx Xxxxx shall have had a reasonable opportunity to review and comment upon
any such amendment or supplement prior to any filing thereof; to advise Xxxxxxx
Xxxxx, 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 xxxxxxx Xxxxxxx Xxxxx 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 the Securities and, during such same
period, to advise Xxxxxxx Xxxxx, 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 the 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 Xxxxxxx Xxxxx may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as Xxxxxxx Xxxxx 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 the 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 xxxxxxx Xxxxxxx Xxxxx with copies of the Final Prospectus as
amended or supplemented in such quantities as Xxxxxxx Xxxxx 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 the 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
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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 or the
Exchange Act, to notify Xxxxxxx Xxxxx and upon Xxxxxxx Xxxxx'x request to
prepare and furnish without charge to Xxxxxxx Xxxxx and to any dealer in
securities as many copies as Xxxxxxx Xxxxx 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 Xxxxxxx
Xxxxx will 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 a period of 45 days from the date of the Final Prospectus
not to offer, sell, contract to sell or otherwise dispose of any securities of
the Company which are substantially similar to such Securities, without the
prior written consent of Xxxxxxx Xxxxx, except that such 45-day restriction
shall not prohibit (i) sale of the Securities hereunder, (ii) the issuance by
the Company of any securities upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, (iii) the Company from
issuing any securities or granting any options to purchase securities pursuant
to existing employee benefit plans of the Company, (iv) the Company from issuing
any shares of Common Stock pursuant to any non-employee director stock plan or
dividend reinvestment plan, (v) the exchange of convertible or exchangeable
securities outstanding on the date hereof, (vi) the Company from issuing
securities in connection with any of the Company's existing strategic alliances,
(vii) the Company from publicly announcing its intention to issue, or actually
issuing, securities to shareholders of another entity as consideration for the
Company's acquisition of, or merger with, such entity, (viii) transfers of the
Company's securities on behalf of clients, conducted in the ordinary course of
its brokerage activities, or (ix) the Company from engaging in an offering of
Common Stock in compliance with the provisions of the (a) Standstill Agreement,
dated April 3, 2000, among Credit Suisse First Boston, Guernsey Branch,
Winterthur Life and the Company, (b) the Standstill Agreement, dated April 7,
2000, between Credit Suisse Group, Guernsey Branch and the Company, (c) the
Standstill Agreement, dated April 3, 2000, between Banco Santander Central
Hispano, S.A. and the Company and (d) the Standstill Agreement, dated December
22, 2000, between Santusa Holding, S.L. and the Company;
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(f) During a period of five years from the effective date of the
Registration Statement, to furnish to Xxxxxxx Xxxxx copies of all reports or
other communications (financial or other) furnished to stockholders of the
Company, and to deliver to Xxxxxxx Xxxxx (i) 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), and (ii) such additional, nonconfidential information
concerning the business and financial condition of the Company as Xxxxxxx Xxxxx
may from time to time reasonably request; and
(g) To use its best efforts to maintain the listing of the Common Stock
(including the Securities) on the New York Stock Exchange.
5. Fees and Expenses.
(a) The Company covenants and agrees with Xxxxxxx Xxxxx 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, Base Prospectus, any Preliminary Prospectus and the Final Prospectus
and amendments and supplements thereto and the mailing and delivering of copies
thereof to Xxxxxxx Xxxxx and dealers; (ii) the cost of printing or producing
this 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx in
connection with, securing any required review by the NASD of the terms of the
sale of the Securities; (v) the cost of preparing the Securities; (vi) the fees
and expenses of any transfer agent and the fees and disbursements of counsel for
any such transfer agent in connection with the Securities; (vii) 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; (viii) the fees and disbursements of the Selling
Shareholder's counsel and accountants; 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 11 hereof, Xxxxxxx Xxxxx will pay all of its
own costs and expenses, including the fees of its counsel, stock
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transfer taxes on resale of any of the Securities by them and any advertising
expenses connected with any offers they may make.
(b) Except as provided in Section 5(a) hereof, the Selling Shareholder
will pay (i) all expenses incident to the performance of its obligations under
this Agreement, including any stamp duties, capital duties and stock transfer
taxes, if any, payable upon the sale of the Securities to Xxxxxxx Xxxxx and (ii)
the reasonable fees, disbursements and expenses of counsel to Xxxxxxx Xxxxx,
except to the extent required to be paid by the Company pursuant to Section
5(a).
(c) The provisions of this Section shall not affect any agreement that
the Company and the Selling Shareholder may make for the sharing of such costs
and expenses.
6. Conditions to Xxxxxxx Xxxxx'x Obligations. The obligations of
Xxxxxxx Xxxxx under this Agreement shall be subject, in its discretion, to the
condition that all representations and warranties and other statements of the
Company and the Selling Shareholder herein or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of the Selling
Shareholder delivered pursuant to the provisions hereof are, at and as of the
Closing Date, true and correct, the condition that the Company shall have
performed all of its obligations hereunder to be performed at or before the
Closing Date, and the following additional conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 4(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to Xxxxxxx Xxxxx'x reasonable satisfaction;
(b) Debevoise & Xxxxxxxx, counsel for Xxxxxxx Xxxxx, shall
have furnished to Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Company, shall have furnished to Xxxxxxx Xxxxx their written opinion,
dated such
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Closing Date, in form and substance reasonably satisfactory to Xxxxxxx
Xxxxx, substantially in the form attached to this Agreement as Exhibit
A-1. Insofar as such opinion involves factual matters, such counsel may
rely, to the extent such counsel deems proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials;
(d) At the Closing Date, Xxxxxxx Xxxxx shall have received the
favorable opinions, each dated as of the Closing Date, of the general
counsel of the Selling Shareholder and Xxxxx Xxxx & Xxxxxxxx, special
counsel for the Selling Shareholder, each in form and substance
satisfactory to counsel for Xxxxxxx Xxxxx, to the effect set forth in
Exhibits A-2 and A-3 hereto, respectively, and to such other effect as
counsel for Xxxxxxx Xxxxx may reasonably request;
(e) Xxxx X. Xxxxxx, Senior Executive Vice-President and
General Counsel of the Company, shall have furnished to Xxxxxxx Xxxxx
his written opinion, dated the Closing Date, in form and substance
reasonably satisfactory to Xxxxxxx Xxxxx, 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 an authorized capitalization as
set forth in the Final Prospectus, and all of the issued
shares of capital stock of the Company including, without
limitation, the Securities to be sold by the Selling
Shareholder 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; stockholders of the Company
have no preemptive 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 shares of the Common Stock or any
other securities in connection with the filing of the
Registration Statement and the issuance and sale to Xxxxxxx
Xxxxx pursuant to this Agreement; the Securities conform in
all material respects to the description of the Common Stock
contained in the Final Prospectus;
(iii) Each Significant Subsidiary has been duly
incorporated and 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
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to own its properties and conduct its business as described in
the Final Prospectus; and 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;
(iv) 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 other jurisdiction in which its ownership or lease of
property or the conduct of its business requires such
qualification, except where the failure to be so qualified and
in good standing would not have a Material Adverse Effect;
(v) Each Insurance Subsidiary is duly organized and
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; except as otherwise described in the Final
Prospectus, each Insurance Subsidiary 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 the revocation, termination
or suspension of any such Approval, the revocation,
termination or suspension of which would have, individually or
in the aggregate, a Material Adverse Effect; and, to such
counsel's knowledge, no insurance regulatory agency or body
has issued any order or decree impairing, restricting or
prohibiting the payment of dividends by any Insurance
Subsidiary to its parent which would have, individually or in
the aggregate, a Material Adverse Effect;
(vi) The Company and each Significant Subsidiary has
all necessary Approvals 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
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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 such Subsidiary, except as described in
the Final Prospectus or any such suspension, revocation or
limitation which would not have, individually or in the
aggregate, a Material Adverse Effect;
(vii) Each Broker-Dealer Subsidiary and each
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 (i) 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 (ii) the failure to
have such Approvals or limiting such business would have a
Material Adverse Effect;
(viii) 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
of its Significant Subsidiaries is a party or to which any
property of the Company or any of its Significant Subsidiaries
is subject which, if determined adversely to the Company or
any of its Significant Subsidiaries, 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;
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(ix) This Agreement has been duly authorized, executed and
delivered by the Company;
(x) 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 its
subsidiaries are required to register as investment companies under the
Investment Company Act;
(xi) The sale of the Securities and the compliance by the
Company with all of the provisions of this Agreement, and the
consummation of the transactions herein 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 indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which, to the knowledge of such counsel, the Company or any of its
Significant Subsidiaries is a party or by which the Company or any of
its Significant Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Significant Subsidiaries 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, 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, order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, any of its Significant Subsidiaries or any of their respective
properties; provided, that no opinion need be given with respect to (i)
the Act, the Exchange Act, the rules and regulations issued pursuant to
each such act, or any order, rule or regulation made or established by
any insurance official or regulatory authority or the NASD or (ii) any
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by Xxxxxxx Xxxxx;
(xii) The Company and each Significant Subsidiary has made all
Filings required to be made pursuant to, and has obtained all Approvals
required to be obtained under any law or regulation of the United
States or any state thereof for the sale by the Selling Shareholder of
the Securities, the compliance by the Company with all provisions of
this Agreement, and the consummation of the transactions herein and
therein contemplated, except for such Filings and Approvals (i) as may
be required under state securities, insurance securities or Blue Sky
laws in connection with the
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purchase and distribution of the Securities by Xxxxxxx Xxxxx, 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 or would not have a
Material Adverse Effect;
(xiii) 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; and
(xiv) The statements set forth in the Final Prospectus under
the caption "Legal Proceedings Update", 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,
2001, 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.
Such counsel shall also state that while he has not himself 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 clause (xiv) of this Section 6(e), no facts have come
to the attention of such counsel which have led such counsel to believe that, as
of its effective date, 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.
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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 Xxxxxxx Xxxxx and such
counsel are justified in relying upon such opinions and certificates.
(f) At the Closing Date, Xxxxxxx Xxxxx shall have received a
certificate of the Selling Shareholder, dated as of the Closing Date,
to the effect that (i) the representations and warranties of the
Selling Shareholder contained in Section 1(b) 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 Selling
Shareholder 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;
(g) The Company will xxxxxxx Xxxxxxx Xxxxx with such conformed
copies of such opinions, certificates, letters and documents as Xxxxxxx
Xxxxx reasonably requests;
(h) On the date of the Final Prospectus at a time prior to the
execution of this Agreement, 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, Deloitte & Touche LLP shall have furnished to Xxxxxxx
Xxxxx 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 Exhibit A-4 hereto;
(i) Xxxxxxx Xxxxx shall have received from Deloitte & Touche
LLP (and furnished to you in form and substance satisfactory to you) a
review report with respect to "Management's Discussion and Analysis of
Financial Condition and Results of Operations of the Company", as set
forth in the Company's most recent reports on Forms 10-K and 10-Q,
respectively, in accordance with Statement on Standards for Attestation
Engagement No. 8 issued by the Auditing Standards Board of the American
Institute of Certified Public Accountants;
(j) Neither the Company nor any Significant Subsidiary shall
have sustained (i) since the date of the latest audited financial
statements included or
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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 the
Significant 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
Xxxxxxx Xxxxx so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the
Securities on the terms and in the manner contemplated in the Final
Prospectus;
(k) On or after the date of this Agreement, (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 of its Significant
Subsidiaries 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 so material
and adverse as to make it impracticable or inadvisable to proceed with
the offering or the delivery of the Securities on the terms and in the
manner contemplated in the Final Prospectus;
(l) On or after the date of this Agreement, 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 Xxxxxxx Xxxxx, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the 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 general moratorium on
commercial banking activities declared by either Federal or New York
State authorities; or (v) the material outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national
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emergency or war, if the effect of any such event specified in this
clause (v) in the judgment of Xxxxxxx Xxxxx 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;
(m) The Securities shall continue to be duly listed on the New
York Stock Exchange;
(n) The Company shall have complied with any request by
Xxxxxxx Xxxxx with respect to the furnishing of copies of the Final
Prospectus in compliance with the provisions of Section 4(c) hereof;
(o) At the date of this Agreement, Xxxxxxx Xxxxx shall have
received a Form W-8 or W-9, as required, signed by the Selling
Shareholder;
(p) At the Closing Date, Xxxxxxx Xxxxx 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(a) 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;
(q) The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements; and
(r) The Company shall have become in good standing in the
State of Delaware.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless Xxxxxxx Xxxxx, its
partners, directors and officers, the Selling Shareholder, its directors and
officers and each person, if any, who controls Xxxxxxx Xxxxx or the Selling
Shareholder 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 Xxxxxxx Xxxxx or the Selling Shareholder 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 or 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
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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 of Xxxxxxx Xxxxx and the Selling Shareholder for any legal or
other expenses reasonably incurred by each of Xxxxxxx Xxxxx and the Selling
Shareholder 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 Xxxxxxx Xxxxx expressly for use in the
Final Prospectus; provided, further, that the Company shall not be liable to
Xxxxxxx Xxxxx under this Section 7(a) with respect to any Preliminary Prospectus
to the extent that a court of competent jurisdiction has found by final and
nonappealable order that any such loss, claim, damage or liability of Xxxxxxx
Xxxxx results from the fact that Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx a reasonable period
of time prior to Xxxxxxx Xxxxx 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) The Selling Shareholder will indemnify and hold harmless the
Company, Xxxxxxx Xxxxx, the partners, directors and officers of the Company and
Xxxxxxx Xxxxx and each person, if any, who controls the Company or Xxxxxxx Xxxxx
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
against any losses, claims, damages or liabilities described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to information relating to the Selling Shareholder and furnished in writing by
or on behalf of the Selling Shareholder expressly for use in the Registration
Statement (or any amendment thereto), any Preliminary Prospectus or the Final
Prospectus (or any amendment or supplement thereto); provided that the Selling
Shareholder shall not be liable under this Section 7(b) with respect to any
Preliminary Prospectus to the extent that a court of competent jurisdiction has
found by final and nonappealable order that any such loss, claim, damage or
liability results from
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the fact that Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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 Selling
Shareholder 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 and (ii)
the untrue or alleged untrue statements or omission or alleged omission of
material fact contained in such prospectus was subsequently corrected by the
Selling Shareholder by timely providing to the Company the information necessary
to correct such untrue statement or omission.
(c) Xxxxxxx Xxxxx will 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 and the Selling Shareholder, its directors and
officers and each person, if any, who controls the Selling Shareholder 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 or the Selling
Shareholder 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 or the Selling Shareholder by Xxxxxxx Xxxxx expressly for use therein;
and will reimburse the Company and the Selling Shareholder for any legal or
other expenses reasonably incurred by the Company and the Selling Shareholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) 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
25
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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. 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.
(e) The provisions of this Section shall not affect any separate
agreement between the Company and the Selling Shareholder with respect to
indemnification.
(f) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, 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 indemnifying party or parties on the one hand
and the indemnified party or parties on the other from the offering of the
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 (d) 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 indemnifying party or
parties on the one hand and the indemnified party or parties 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. For purposes of determining the
relative benefits received by the parties hereto in connection with such
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offering, such parties shall be deemed to have received the following benefits
only: the Company shall be deemed to have received the total proceeds (before
deducting expenses) received by the Selling Shareholder, as set forth on the
cover page of the Final Prospectus (the "Total Proceeds"), the Selling
Shareholder shall be deemed to have received no such proceeds, and Xxxxxxx Xxxxx
shall be deemed to have received the Total Discount, as defined below; provided,
however, that in respect of the obligation of the Selling Shareholder to
contribute to the amount paid or payable by an indemnified party under Section
7(b) hereof, or in respect of the obligation of Xxxxxxx Xxxxx to contribute to
the amount paid or payable by the Selling Shareholder under Section 7(c) hereof
(where the Selling Shareholder is the only indemnified party under such Section
7(c)), the Selling Shareholder shall be deemed to have received the Total
Proceeds. As used herein, the term "Total Discount" means the difference between
the aggregate prices at which the Securities are sold by Xxxxxxx Xxxxx and the
Total Proceeds. 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, by the Selling Shareholder or Xxxxxxx Xxxxx
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Selling Shareholder and Xxxxxxx Xxxxx agree that it would not be just and
equitable if contributions pursuant to this subsection (f) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(f). 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 (f) 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 (f): (i) Xxxxxxx Xxxxx shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which Xxxxxxx Xxxxx has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission; and (ii) any liability of the Selling Shareholder
under this contribution agreement shall be only with respect to information
relating to such party and furnished in writing by or on behalf of such party
expressly for use in the Registration Statement (or any amendment thereto), any
Preliminary Prospectus or the Final Prospectus (or any amendment or supplement
thereto). 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.
(g) 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 Xxxxxxx
Xxxxx within the meaning of the Act. The obligations of Xxxxxxx Xxxxx under this
Section 7 shall be in
27
28
addition to any liability which Xxxxxxx Xxxxx 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 of the
Selling Shareholder and to each person, if any, who controls the Company and the
Selling Shareholder within the meaning of the Act.
(h) The provisions of this Section shall not affect any separate
agreement between the Company and the Selling Shareholder with respect to
contribution.
8. Intentionally Deleted.
9. Default by the Selling Shareholder. If the Selling Shareholder
shall fail at the Closing Date to sell and deliver the number of Securities
which the Selling Shareholder is obligated to sell hereunder, then Xxxxxxx Xxxxx
may, at its option, by notice from Xxxxxxx Xxxxx to the Company, either (a)
terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 5 and 7 shall remain
in full force and effect or (b) elect to purchase the Securities which the
Selling Shareholder has agreed to sell hereunder. No action taken pursuant to
this Section 9 shall relieve the Selling Shareholder so defaulting from
liability, if any, in respect of such default. In the event of a default by the
Selling Shareholder as referred to in this Section 9, Xxxxxxx Xxxxx shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required change in the Registration Statement or Prospectus
or in any other documents or arrangements.
10. Survival. The respective indemnities, agreements,
representations, warranties and other statements of the Company, the Selling
Shareholder and Xxxxxxx Xxxxx, 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 Xxxxxxx Xxxxx or any controlling person
of Xxxxxxx Xxxxx, the Company or any officer or director or controlling person
of the Company or the Selling Shareholder or any officer or director or
controlling person of the Selling Shareholder and shall survive delivery of and
payment for the Securities.
11. Effect of Termination of this Agreement or Nondelivery of
Securities. If for any reason the Securities are not delivered by or on behalf
of the Selling Shareholder as provided herein, the Selling Shareholder will
reimburse Xxxxxxx Xxxxx for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by Xxxxxxx Xxxxx in making
preparations for the purchase, sale and delivery of the Securities, but the
Selling Shareholder shall then be under no further liability to Xxxxxxx Xxxxx in
respect of the Securities except as provided in Sections 5 and 7 hereof.
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12. Intentionally Deleted.
13. Notices. All statements, requests, notices and agreements
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication; notices to
Xxxxxxx Xxxxx shall be directed to Xxxxxxx Xxxxx at North Tower, World Financial
Center, New York, New York 10281-1201, attention of Syndicate Operations with a
copy to Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of Xxxxx X. Xxxxxxxx, Esq.; and if to the Company shall be delivered
or sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Secretary; and notices to
the Selling Shareholder at Banco Santander Central Hispano, S.A., Xxxxx xx xx
Xxxxxxxxxx 00, 00000 Xxxxxx, Xxxxx, attention Xxxx Xxxxxx Xxxxxxx. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof.
14. Successors and Assigns. This Agreement shall be binding upon,
and inure solely to the benefit of, Xxxxxxx Xxxxx, the Company, the Selling
Shareholder and, to the extent provided in Sections 7 and 10 hereof, the
officers and directors of the Company and the Selling Shareholder and each
person who controls the Company, the Selling Shareholder or Xxxxxxx Xxxxx, 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. No purchaser of any of the Securities from Xxxxxxx Xxxxx shall be
deemed a successor or assign by reason merely of such purchase.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
16. Consent to Jurisdiction. The Company and the Selling
Shareholder agree that any legal suit, action or proceeding against the Company
or the Selling Shareholder brought by Xxxxxxx Xxxxx or by any person, if any,
who controls Xxxxxxx Xxxxx 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. The Selling Shareholder has appointed
Banco Santander Central Hispano, S.A. (New York Branch), 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent (the "Authorized Agent") upon
whom process may be served in any legal suit, action or proceeding arising out
of or based upon this Agreement or the transactions contemplated hereby which
may be instituted in any State or federal court in the Borough of Manhattan, The
City of New York, New York, by Xxxxxxx Xxxxx, or controlling person and
expressly accepts the non-exclusive jurisdiction of any such
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30
court in respect of any such action. Such appointment shall be irrevocable. The
Selling Shareholder represents and warrants that the Authorized Agent has agreed
to act as said agent for service of process, and the Selling Shareholder agrees
to take any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Authorized Agent shall be
deemed, in every respect, effective service of process upon the Selling
Shareholder. Nothing in this Section 16 shall affect the right of Xxxxxxx Xxxxx
to serve process in any manner permitted by law, or limit any right to bring
proceedings against the Selling Shareholder or any of its subsidiaries in the
courts of any jurisdiction or to enforce in any lawful manner a judgment
obtained in one jurisdiction in any other jurisdiction.
17. Counterparts. This 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.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Selling Shareholder a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among Xxxxxxx Xxxxx and the Company and the Selling
Shareholder in accordance with its terms.
Very truly yours,
METLIFE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice-Chairman of the Board and
Chief Financial Officer
SANTUSA HOLDING, S.L.
By: /s/ Xxxx Xxxxxx xx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx xx Xxxxxxx
Title: Director de Asesoria Institucional
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxxxxxx Xxxx
-----------------------------------------------
Authorized Signatory
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SCHEDULE A
METLIFE, INC.
25,000,000 SHARES OF COMMON STOCK
(Par Value $.01 Per Share)
The purchase price per share for the Securities to be paid by Xxxxxxx
Xxxxx shall be $28.25.
Sch. A-1
33
SCHEDULE B
SIGNIFICANT SUBSIDIARIES
Metropolitan Life Insurance Company (NY)
GenAmerica Financial Corporation (MO)
General American Life Insurance Company (MO)
Reinsurance Group of America, Incorporated (MO)
New England Life Insurance Company (MA)
Metropolitan Property and Casualty Insurance Company (RI)
State Street Research & Management Company (DE)
Sch. B-1
34
EXHIBIT A-1
FORM OF OPINION OF SKADDEN, ARPS, SLATE, XXXXXXX
& XXXX LLP TO BE DELIVERED PURSUANT TO SECTION 6(c)
TO BE ATTACHED
Ex. A-1-1
35
EXHIBIT A-2
FORM OF OPINION OF GENERAL COUNSEL TO THE SELLING SHAREHOLDER
TO BE DELIVERED PURSUANT TO SECTION 6(d)
(i) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which such counsel need express no opinion) is necessary or required
to be obtained by the Selling Shareholder for the performance by the Selling
Shareholder of its obligations under this Agreement, or in connection with the
offer, sale or delivery of the Securities.
(ii) This Agreement has been duly authorized, executed and delivered by
or on behalf of the Selling Shareholder.
(iii) The execution, delivery and performance of this Agreement and the
sale and delivery of the Securities and the consummation of the transactions
contemplated in the Underwriting Agreement and in the Registration Statement and
compliance by the Selling Shareholder with its obligations under the
Underwriting Agreement have been duly authorized by all necessary action on the
part of the Selling Shareholder and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Securities or any property or assets of the
Selling Shareholder pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other instrument or
agreement to which the Selling Shareholder is a party or by which it may be
bound, or to which any of the property or assets of the Selling Shareholder may
be subject nor will such action result in any violation of the provisions of the
charter or by-laws of the Selling Shareholder, if applicable, or any law,
administrative regulation, judgment or order of any governmental agency or body
or any administrative or court decree having jurisdiction over the Selling
Shareholder or any of its properties.
Such opinion shall not state that it is to be governed or qualified by,
or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
Ex. A-2-1
36
EXHIBIT A-3
FORM OF OPINION OF XXXXX, POLK & XXXXXXXX TO THE SELLING
SHAREHOLDER TO BE DELIVERED PURSUANT TO SECTION 6(d)
(i) The execution, delivery and performance of this Agreement and the
sale and delivery of the Securities and the consummation of the transactions
contemplated in the Underwriting Agreement and in the Registration Statement and
compliance by the Selling Shareholder with its obligations under the
Underwriting Agreement will not result in any violation of any New York or
Federal law or administrative regulation, that in the experience of such counsel
is normally applicable to general business corporations in relation to
transactions of the type contemplated in this Agreement.
(ii) Upon payment for the Securities to be sold by the Selling
Shareholder to Xxxxxxx Xxxxx as provided in the Underwriting Agreement, the
delivery of such Securities to Cede & Co. ("Cede") or such nominee as may be
designated by The Depository Trust Company ("DTC"), the registration of such
Securities in the name of Cede or such other nominee and the crediting of such
Securities on the records of DTC to security accounts in the name of Xxxxxxx
Xxxxx (assuming that neither DTC nor Xxxxxxx Xxxxx has notice of any adverse
claim (as such phrase is defined in Section 8-105 of the Uniform Commercial Code
as in effect in the State of New York (the "UCC")) to such Securities or any
security entitlement in respect thereof), (A) DTC shall be a "protected
purchaser" of such Securities within the meaning of Section 8-303 of the UCC,
(B) under Section 8-501 of the UCC, Xxxxxxx Xxxxx will acquire a security
entitlement in respect of such Securities and (C) no action based on any
"adverse claim" (as defined in Section 8-102 of the UCC) to such security
entitlement may be asserted against Xxxxxxx Xxxxx; it being understood that for
purposes of this opinion, we have assumed that when such payment, delivery and
crediting occur, (x) such Securities will have been registered in the name of
Cede or such other nominee as may be designated by DTC, in each case on the
Company's share registry in accordance with its certificate of incorporation,
bylaws and applicable law, (y) DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the UCC and (z) appropriate
entries to the securities account or accounts in the name of Xxxxxxx Xxxxx on
the records of DTC will have been made pursuant to the UCC.
Such opinion shall not state that it is to be governed or qualified by,
or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
Ex. A-3-1
37
EXHIBIT A-4
FORM OF LETTER OF DELOITTE & TOUCHE LLP
TO BE DELIVERED PURSUANT TO SECTION 6(h)
TO BE ATTACHED.
Ex. A-4-1
