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EXHIBIT 4.9
EXECUTION COPY
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METLIFE, INC.
AND
BANK ONE TRUST COMPANY, N.A.,
AS PURCHASE CONTRACT AGENT
PURCHASE CONTRACT AGREEMENT
Dated as of April 7, 2000
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.............................................................................................1
Section 1.2 Compliance Certificates and Opinions...................................................................12
Section 1.3 Form of Documents Delivered to Agent...................................................................12
Section 1.4 Acts of Holders; Record Dates..........................................................................13
Section 1.5 Notices................................................................................................14
Section 1.6 Notice to Holders; Waiver..............................................................................16
Section 1.7 Effect of Headings and Table of Contents...............................................................16
Section 1.8 Successors and Assigns.................................................................................16
Section 1.9 Separability Clause....................................................................................16
Section 1.10 Benefits of Agreement..................................................................................16
Section 1.11 Governing Law..........................................................................................17
Section 1.12 Legal Holidays.........................................................................................17
Section 1.13 Counterparts...........................................................................................17
Section 1.14 Inspection of Agreement................................................................................17
ARTICLE II
CERTIFICATE FORMS
Section 2.1 Forms of Certificates Generally........................................................................17
Section 2.2 Form of Agent's Certificate of Authentication..........................................................19
ARTICLE III
THE UNITS
Section 3.1 Title and Terms; Denominations.........................................................................19
Section 3.2 Rights and Obligations Evidenced by the Certificates...................................................19
Section 3.3 Execution, Authentication, Delivery and Dating.........................................................20
Section 3.4 Temporary Certificates.................................................................................21
Section 3.5 Registration; Registration of Transfer and Exchange....................................................21
Section 3.6 Book-Entry Interests...................................................................................23
Section 3.7 Notices to Holders.....................................................................................23
Section 3.8 Appointment of Successor Clearing Agency...............................................................24
Section 3.9 Definitive Certificates................................................................................24
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Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates.....................................................24
Section 3.11 Persons Deemed Owners..................................................................................25
Section 3.12 Cancellation...........................................................................................26
Section 3.13 Establishment of Stripped Units........................................................................26
Section 3.14 Reestablishment of Normal Units........................................................................28
Section 3.15 Transfer of Collateral upon Occurrence of Termination Event............................................29
Section 3.16 No Consent to Assumption...............................................................................30
ARTICLE IV
THE CAPITAL SECURITIES
Section 4.1 Payment of Distribution; Rights to Distributions Preserved; Notice.....................................30
Section 4.2 Notice and Voting......................................................................................31
Section 4.3 Distribution of Debentures.............................................................................31
ARTICLE V
THE PURCHASE CONTRACTS; THE REMARKETING
Section 5.1 Purchase of Shares of Common Stock.....................................................................32
Section 5.2 Payment of Purchase Price; Remarketing.................................................................34
Section 5.3 Issuance of Shares of Common Stock.....................................................................38
Section 5.4 Adjustment of Settlement Rate..........................................................................39
Section 5.5 Notice of Adjustments and Certain Other Events.........................................................44
Section 5.6 Termination Event; Notice..............................................................................45
Section 5.7 Early Settlement.......................................................................................45
Section 5.8 Early Settlement Upon Merger...........................................................................47
Section 5.9 Charges and Taxes......................................................................................48
Section 5.10 No Fractional Shares...................................................................................49
ARTICLE VI
REMEDIES
Section 6.1 Unconditional Right of Holders to Purchase Common Stock................................................49
Section 6.2 Restoration of Rights and Remedies.....................................................................49
Section 6.3 Rights and Remedies Cumulative.........................................................................50
Section 6.4 Delay or Omission Not Waiver...........................................................................50
Section 6.5 Undertaking for Costs..................................................................................50
Section 6.6 Waiver of Stay or Extension Laws.......................................................................50
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ARTICLE VII
THE AGENT
Section 7.1 Certain Duties and Responsibilities....................................................................51
Section 7.2 Notice of Default......................................................................................52
Section 7.3 Certain Rights of Agent................................................................................52
Section 7.4 Not Responsible for Recitals or Issuance of Units......................................................53
Section 7.5 May Hold Units.........................................................................................53
Section 7.6 Money Held in Custody..................................................................................53
Section 7.7 Compensation and Reimbursement.........................................................................53
Section 7.8 Corporate Agent Required; Eligibility..................................................................54
Section 7.9 Resignation and Removal; Appointment of Successor......................................................54
Section 7.10 Acceptance of Appointment by Successor.................................................................55
Section 7.11 Merger, Conversion, Consolidation or Succession to Business............................................56
Section 7.12 Preservation of Information; Communications to Holders.................................................56
Section 7.13 No Obligations of Agent................................................................................57
Section 7.14 Tax Compliance.........................................................................................57
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
Section 8.1 Supplemental Agreements Without Consent of Holders.....................................................57
Section 8.2 Supplemental Agreements with Consent of Holders........................................................58
Section 8.3 Execution of Supplemental Agreements...................................................................59
Section 8.4 Effect of Supplemental Agreements......................................................................59
Section 8.5 Reference to Supplemental Agreements...................................................................59
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Covenant Not to Merge, Consolidate, Sell or Convey Property Except
Under Certain Conditions...............................................................................60
Section 9.2 Rights and Duties of Successor Corporation.............................................................60
Section 9.3 Opinion of Counsel Given to Agent......................................................................61
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ARTICLE X
COVENANTS
Section 10.1 Performance Under Purchase Contracts...................................................................61
Section 10.2 Maintenance of Office or Agency........................................................................61
Section 10.3 Company to Reserve Common Stock........................................................................62
Section 10.4 Covenants as to Common Stock...........................................................................62
Section 10.5 Statements of Officer of the Company as to Default.....................................................62
EXHIBITS
EXHIBIT A Form of Normal Units Certificate
EXHIBIT B Form of Stripped Units Certificate
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
EXHIBIT D Instruction to Purchase Contract Agent
EXHIBIT E Form of Remarketing Agreement
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PURCHASE CONTRACT AGREEMENT, dated as of April 7, 2000, between
MetLife, Inc., a Delaware corporation (the "Company"), and Bank One Trust
Company, N.A., a national banking association, acting as purchase contract agent
for the Holders of Units from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Units.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Agent, as provided in this Agreement, the
valid obligations of the Company, and to constitute this Agreement a valid
agreement of the Company, in accordance with its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Units by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
nouns and pronouns of the masculine gender include the feminine and
neuter genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
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(d) the following terms have the meanings given to them in the
Declaration: (i) Capital Securities Guarantee; (ii) Indenture and (iii)
Liquidation Distribution; and
(e) the following terms have the meanings given to them in this
Section 1.1(e);
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Agent" means the Person named as the "Agent" in the first
paragraph of this instrument until a successor Agent shall have become
such pursuant to the applicable provisions of this Agreement, and
thereafter "Agent" shall mean such Person.
"Agent-purchased Treasury Consideration" has the meaning specified
in Section 5.2(b)(i).
"Agreement" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
agreements supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Applicable Market Value" has the meaning specified in Section 5.1.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry Interest, a
Person who is the beneficial owner of such Book-Entry Interest as
reflected on the books of the Clearing Agency or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Board of Directors" means either the Board of Directors of the
Company or the Executive Committee of such Board or any other committee
of such Board duly authorized to act generally or in any particular
respect for the Board hereunder.
"Board Resolution" means (i) a copy of a resolution certified by
the Secretary or the Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, (ii) a copy
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of a unanimous written consent of the Board of Directors or (iii) a
certificate signed by the authorized officer or officers to whom the
Board of Directors has delegated its authority, and in each case,
delivered to the Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and
made through book entries by a Clearing Agency as described in Section
3.6.
"Business Day" means any day that is not a Saturday, Sunday or day
on which banking institutions and trust companies in The City of New York
or at a place of payment are authorized or required by law, regulation or
executive order to close.
"Capital Securities" means the 8% Capital Securities of the Trust,
each having a stated liquidation amount of $50, representing, together
with the Common Securities, undivided beneficial interests in the assets
of the Trust.
"Cash Merger" has the meaning set forth in Section 5.8.
"Certificate" means a Normal Units Certificate or a Stripped Units
Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Units and in whose name, or in the name of a nominee
of that organization, shall be registered a Global Certificate and which
shall undertake to effect book-entry transfers and pledges of the Units.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1.
"Collateral" has the meaning specified in Section 2.1 of the Pledge
Agreement.
"Collateral Agent" means The Bank of New York, as Collateral Agent
under the Pledge Agreement until a successor Collateral Agent shall have
become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Collateral Agent" shall mean the Person who is
then the Collateral Agent thereunder.
"Collateral Substitution" has the meaning specified in Section
3.13.
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"Common Securities" has the meaning specified in Section 7.1 of the
Declaration.
"Common Stock" means the common stock, par value $0.01 per share,
of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such
pursuant to the applicable provision of this Agreement, and thereafter
"Company" shall mean such successor.
"Constituent Person" has the meaning specified in Section 5.4(b).
"Corporate Trust Office" means the principal corporate trust office
of the Agent at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is
located at Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
except that for purposes of Section 10.2, such term shall mean the office
or agency of the Agent in the Borough of Manhattan, The City of New York,
which office at the date hereof is located at 00 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
"Coupon Rate" means the percentage rate per annum at which each
Debenture will bear interest initially.
"Current Market Price" has the meaning specified in Section
5.4(a)(8).
"Custodial Agent" means The Bank of New York, as Custodial Agent
under the Pledge Agreement until a successor Custodial Agent shall have
become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Custodial Agent" shall mean the Person who is
then the Custodial Agent thereunder.
"Debentures" means the series of senior debt securities of the
Company designated the 8% Debentures due 2005, to be issued under the
First Supplemental Indenture, dated as of the date hereof, between the
Company and The Bank of New York, as trustee.
"Declaration" means the Amended and Restated Declaration of Trust,
dated April 7, 2000, of MetLife Capital Trust I, among the Company, as
the sponsor, the trustees named therein and the holders from time to time
of undivided beneficial interests in the assets of the Trust.
"Depositary" means, initially, DTC, until another Clearing Agency
becomes its successor.
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"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Early Settlement" has the meaning specified in Section 5.7(a).
"Early Settlement Amount" has the meaning specified in Section
5.7(a).
"Early Settlement Date" has the meaning specified in Section
5.7(a).
"Early Settlement Rate" has the meaning specified in Section
5.7(b).
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and
the rules and regulations promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.4.
"Expiration Time" has the meaning specified in Section 5.4(a)(6).
"Failed Remarketing" has the meaning specified in Section
5.2(b)(ii).
"First Supplemental Indenture" means the First Supplemental
Indenture, dated as of April 7, 2000, between the Company and The Bank of
New York, as trustee.
"Global Capital Security Certificate" means a certificate
evidencing the rights and obligations of a Holder in respect of the
number of Capital Securities specified on such certificate and which is
registered in the name of a Clearing Agency or a nominee thereof.
"Global Certificate" means a Certificate that evidences all or part
of the Units and is registered in the name of a Depositary or a nominee
thereof.
"Holder" means the Person in whose name the Unit evidenced by a
Normal Units Certificate and/or a Stripped Units Certificate is
registered in the related Normal Units Register and/or the Stripped Units
Register, as the case may be.
"Indenture" means the Indenture, dated as of April 7, 2000, between
the Company and The Bank of New York, as trustee.
"Indenture Trustee" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture and the First Supplemental
Indenture, or any successor thereto.
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"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Company by the Chief Executive Officer, the
Chief Financial Officer, the President, any Vice-President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary (or other officer performing similar functions) of the Company
and delivered to the Agent.
"Merger Early Settlement" has the meaning specified in Section 5.8.
"Merger Early Settlement Amount" has the meaning specified in
Section 5.8.
"Merger Early Settlement Date" has the meaning specified in Section
5.8.
"NYSE" has the meaning specified in Section 5.1.
"Normal Unit" means the collective rights and obligations of a
Holder of a Normal Units Certificate in respect of a Capital Security or
the appropriate Treasury Consideration, as the case may be, subject in
each case to the Pledge thereof, and the related Purchase Contract.
"Normal Units Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Normal
Units specified on such certificate, substantially in the form of Exhibit
A hereto.
"Normal Units Register" and "Normal Units Registrar" have the
respective meanings specified in Section 3.5.
"Officer's Certificate" means a certificate signed by the Chief
Executive Officer, the Chief Financial Officer, the President, any
Vice-President, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary (or other officer performing similar functions)
of the Company and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company or an
Affiliate and who shall be reasonably acceptable to the Agent.
"Opt-out Securities Treasury Consideration" has meaning specified
in Section 5.2(b)(iv).
"Outstanding" or "Outstanding Securities" means, as of the date of
determination, all Normal Units or Stripped Units evidenced by
Certificates theretofore authenticated, executed and delivered under this
Agreement, except:
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(i) If a Termination Event has occurred, (A) Stripped Units
and (B) Normal Units for which the related Capital Security or the
appropriate Treasury Consideration, or a Liquidation Distribution
in respect of such Capital Security, as the case may be, has been
theretofore deposited with the Agent in trust for the Holders of
such Normal Units;
(ii) Normal Units and Stripped Units evidenced by
Certificates theretofore cancelled by the Agent or delivered to the
Agent for cancellation or deemed cancelled pursuant to the
provisions of this Agreement; and
(iii) Normal Units and Stripped Units evidenced by
Certificates in exchange for or in lieu of which other Certificates
have been authenticated, executed on behalf of the Holder and
delivered pursuant to this Agreement, other than any such
Certificate in respect of which there shall have been presented to
the Agent proof satisfactory to it that such Certificate is held by
a bona fide purchaser in whose hands the Normal Units or Stripped
Units evidenced by such Certificate are valid obligations of the
Company;
provided, that in determining whether the Holders of the requisite number
of the Normal Units or Stripped Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Normal
Units or Stripped Units owned by the Company or any Affiliate of the
Company shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Agent shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Normal Units or Stripped Units which a Responsible Officer
of the Agent knows to be so owned shall be so disregarded. Normal Units
or Stripped Units so owned which have been pledged in good faith may be
regarded as Outstanding Securities if the pledgee establishes to the
satisfaction of the Agent the pledgee's right so to act with respect to
such Normal Units or Stripped Units and that the pledgee is not the
Company or any Affiliate of the Company.
"Payment Date" means each February 15, May 15, August 15 and
November 15, commencing August 15, 2000.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pledge" means the pledge under the Pledge Agreement of the Capital
Securities, the Treasury Securities or the appropriate Treasury
Consideration, in each case constituting a part of the Units, property,
cash, securities, financial assets and security
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entitlements of the Collateral Agreement (as defined in the Pledge
Agreement), the Debentures delivered to the Collateral Agent upon
liquidation of the Trust, and any proceeds of any of the foregoing.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, by and among the Company, the Collateral Agent, the Custodial
Agent, the Securities Intermediary and the Agent, on its own behalf and
as attorney-in-fact for the Holders from time to time of the Units.
"Pledged Capital Securities" has the meaning set forth in the
Pledge Agreement.
"Pledged Treasury Consideration" has the meaning set forth in the
Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in the
Pledge Agreement.
"Predecessor Certificate" means a Predecessor Normal Units
Certificate or a Predecessor Stripped Units Certificate.
"Predecessor Normal Units Certificate" of any particular Normal
Units Certificate means every previous Normal Units Certificate
evidencing all or a portion of the rights and obligations of the Company
and the Holder under the Normal Units evidenced thereby; and, for the
purposes of this definition, any Normal Units Certificate authenticated
and delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Normal Units Certificate shall be
deemed to evidence the same rights and obligations of the Company and the
Holder as the mutilated, destroyed, lost or stolen Normal Units
Certificate.
"Predecessor Stripped Units Certificate" of any particular Stripped
Units Certificate means every previous Stripped Units Certificate
evidencing all or a portion of the rights and obligations of the Company
and the Holder under the Stripped Units evidenced thereby; and, for the
purposes of this definition, any Stripped Units Certificate authenticated
and delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Stripped Units Certificate shall be
deemed to evidence the same rights and obligations of the Company and the
Holder as the mutilated, destroyed, lost or stolen Stripped Units
Certificate.
"Property Trustee" means The Bank of New York, as property trustee
under the Declaration, or any successor thereto that is a financial
institution unaffiliated with the Company.
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"Purchase Contract," when used with respect to any Unit, means the
contract forming a part of such Unit and obligating the Company to sell
and the Holder of such Unit to purchase Common Stock on the terms and
subject to the conditions set forth in Article Five.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 5.3.
"Purchase Price" has the meaning specified in Section 5.1.
"Purchased Shares" has the meaning specified in Section 5.4(a)(6).
"Quarterly Payment Date" means each February 15, May 15, August 15
and November 15 commencing August 15, 2000.
"Record Date" for the distribution payable on any Payment Date
means, as to any Global Certificate, the Business Day next preceding such
Payment Date, and as to any other Certificate, a day selected by the
Company which shall be more than one Business Day but less than 60
Business Days prior to such Payment Date.
"Register" means the Normal Units Register and the Stripped Units
Register.
"Registrar" means the Normal Units Registrar and the Stripped Units
Registrar.
"Remarketing Agent" has the meaning specified in Section 5.2(b)(i).
"Remarketing Agreement" means the Remarketing Agreement to be
entered into by and among the Company, the Trust, the Remarketing Agent
and the Agent.
"Remarketing Date" means the third business day preceding February
15, 2003.
"Remarketing Fee" has the meaning specified in Section 5.2(b)(i).
"Remarketing Value" has the meaning specified in Section 5.2(b)(i).
"Reorganization Event" has the meaning specified in Section 5.4(b).
"Responsible Officer" means, when used with respect to the Agent,
any officer within the corporate trust department of the Agent (or any
successor of the Agent), including any Vice President, any assistant Vice
President, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or any other officer of the Agent who
customarily performs functions similar to those performed by the Persons
who at
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the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" means The Bank of New York, in its
capacity as Securities Intermediary under the Pledge Agreement, together
with its successors in such capacity.
"Separate Capital Securities" has the meaning set forth in the
Pledge Agreement.
"Settlement Date" means any Early Settlement Date or Merger Early
Settlement Date or the Stock Purchase Date.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means, with respect to any one Capital Security,
Normal Unit or Stripped Unit, $50.
"Stock Purchase Date" means May 15, 2003.
"Stripped Unit" means the collective rights and obligations of a
holder of a Stripped Units Certificate in respect of a 1/20 undivided
beneficial interest in a Treasury Security, subject in each case to the
Pledge thereof, and the related Purchase Contract.
"Stripped Units Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Stripped
Units specified on such certificate, substantially in the form of Exhibit
B hereto.
"Stripped Units Register" and "Stripped Units Registrar" have the
respective meanings specified in Section 3.5.
"Subsequent Remarketing Date" means, provided there has been one or
more Failed Remarketings, the date on which the Remarketing Agent has
conducted a successful remarketing in accordance with Section 5.2 hereof,
such date in no event hereby later than four business days immediately
preceding the Stock Purchase Date.
"Termination Date" means the date, if any, on which a Termination
Event occurs.
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"Termination Event" means the occurrence of any of the following
events: (i) at any time on or prior to the Stock Purchase Date, a
judgment, decree or court order shall have been entered granting relief
under the Bankruptcy Code or any other similar Federal or state law,
adjudicating the Company to be insolvent, or approving as properly filed
a petition seeking reorganization or liquidation of the Company, and,
unless such judgment, decree or order shall have been entered within 60
days prior to the Stock Purchase Date, such decree or order shall have
continued undischarged and unstayed for a period of 60 days; or (ii) a
judgment, decree or court order for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the
Company or of its property, or for the winding up or liquidation of its
affairs, shall have been entered, and, unless such judgment, decree or
order shall have been entered within 60 days prior to the Stock Purchase
Date, such judgment, decree or order shall have continued undischarged
and unstayed for a period of 60 days, or (iii) at any time on or prior to
the Stock Purchase Date the Company shall file a petition for relief
under the Bankruptcy Code or any other similar federal or state law, or
shall consent to the filing of a bankruptcy proceeding against it, or
shall file a petition or answer or consent seeking reorganization or
liquidation under the Bankruptcy Code or any other similar federal or
state law, or shall consent to the filing of any such petition, or shall
consent to the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its property, or shall
make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section
5.1.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trading Day" has the meaning specified in Section 5.1.
"Treasury Consideration" means the Agent-purchased Treasury
Consideration or the Opt-out Treasury Consideration.
"Treasury Security" means a zero coupon U.S. Treasury security
(CUSIP Number 000000XX0) maturing on May 15, 2003 that will pay $1,000 on
such maturity date.
"Trust" means MetLife Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware, or any successor thereto
by merger or consolidation.
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"Underwriting Agreement" means the Underwriting Agreement dated
April 4, 2000 among the Company, Metropolitan Life Insurance Company, the
Trust and the underwriters named therein, as representatives of the
underwriters.
"Unit" means a Normal Unit or a Stripped Unit.
"Vice-President" means any vice-president, whether or not
designated by a number or a word or words added before or after the title
"vice-president."
Section 1.2 Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Agreement, upon any application or request
by the Company to the Agent to take any action under any provision of this
Agreement, the Company shall furnish to the Agent an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Agreement
relating to the proposed action have been complied with and, if requested by the
Agent, an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Agreement relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that the individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she
has made such examination or investigation as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of such individual,
such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Agent. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only
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one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders; Record Dates. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Agent and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and (subject to Section 7.1)
conclusive in favor of the Agent and the Company, if made in the manner provided
in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Agent deems
sufficient.
(c) The ownership of Units shall be proved by the Normal Units
Register or the Stripped Units Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every future
Holder of the same
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Certificate and the Holder of every Certificate issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Units. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Normal Units and the Outstanding Stripped Units, as
the case may be, on such record date, and no other Holders, shall be entitled to
take the relevant action with respect to the Normal Units or the Stripped Units,
as the case may be, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite number of
Outstanding Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite number of Outstanding Securities on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Agent in
writing and to each Holder of Units in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Agent in writing, and to each Holder of Units in the manner set
forth in Section 1.6, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the Company shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
Section 1.5 Notices. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document provided or
permitted by this Agreement to be made upon, given or furnished to, or filed
with:
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(1) the Agent by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if made, given, furnished or filed in writing and personally delivered,
mailed, first-class postage prepaid, telecopied or delivered by overnight
air courier guaranteeing next day delivery, to the Agent at Xxx Xxxxx
Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust
Administration, telecopy: (000) 000-0000, or at any other address
furnished in writing by the Agent to the Holders and the Company; or
(2) the Company by the Agent or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if made, given, furnished or filed in writing and personally delivered,
mailed, first-class postage prepaid, telecopied or delivered by overnight
air courier guaranteeing next day delivery, to the Company at MetLife,
Inc., Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, telecopy: (212)
578-0266, Attention: Treasurer, or at any other address furnished in
writing to the Agent by the Company; or
(3) the Collateral Agent by the Agent, the Company or any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered, mailed, first-class postage prepaid, telecopied or
delivered by overnight air courier guaranteeing next day delivery,
addressed to the Collateral Agent at The Bank of New York, 000 Xxxxxxx
Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Dealing and
Trading Group, Xxxxx Xxxxxxxxxx, telecopy: (000) 000-0000, or at any
other address furnished in writing by the Collateral Agent to the Agent,
the Company and the Holders; or
(4) the Property Trustee by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered,
mailed, first-class postage prepaid, telecopied or delivered by overnight
air courier guaranteeing next day delivery, addressed to the Property
Trustee at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Corporate Trust Administration, telecopy:
(000) 000-0000 or at any other address furnished in writing by the
Property Trustee to the Company; or
(5) the Indenture Trustee by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or
mailed, first-class postage prepaid, telecopied or delivered by overnight
air courier guaranteeing next day delivery, addressed to the Indenture
Trustee at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Corporate Trust
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Administration, telecopy: (000) 000-0000 or at any other address
furnished in writing by the Indenture Trustee to the Company.
Section 1.6 Notice to Holders; Waiver. Where this Agreement
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at its
address as it appears in the applicable Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Agent, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Agent shall
constitute a sufficient notification for every purpose hereunder.
Section 1.7 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.8 Successors and Assigns. All covenants and agreements in
this Agreement by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.9 Separability Clause. In case any provision in this
Agreement or in the securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby.
Section 1.10 Benefits of Agreement. Nothing in this Agreement or in
the Units, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and, to the extent provided hereby, the
Holders, any benefits or any legal or equitable right, remedy or claim under
this Agreement. The Holders from time to time shall be beneficiaries of this
Agreement and shall be bound by all of the terms and
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conditions hereof and of the Units evidenced by their Certificates by their
acceptance of delivery of such Certificates.
Section 1.11 Governing Law. This Agreement and the Units shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to its principles of conflicts of laws.
Section 1.12 Legal Holidays. In any case where any Payment Date
shall not be a Business Day, then (notwithstanding any other provision of this
Agreement or the Normal Units Certificates) payments on the Capital Securities
shall not be made on such date, but such payments shall be made on the next
succeeding Business Day with the same force and effect as if made on such
Payment Date, provided that no interest or distributions shall accrue or be
payable by the Company for the period from and after any such Payment Date,
except that, if such next succeeding Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day with the same force and effect as if made on such Payment Date.
In any case where the Stock Purchase Date shall not be a Business
Day, then (notwithstanding any other provision of this Agreement or the
Certificates), the Purchase Contracts shall not be performed on such date, but
the Purchase Contracts shall be performed on the immediately following Business
Day with the same force and effect as if performed on the Stock Purchase Date.
Section 1.13 Counterparts. This Agreement may be executed in any
number of counterparts by the parties hereto, each of which, when so executed
and delivered, shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
Section 1.14 Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times during normal business hours at the
Corporate Trust Office for inspection by any Holder.
ARTICLE II
CERTIFICATE FORMS
Section 2.1 Forms of Certificates Generally. The Normal Units
Certificates (including the form of Purchase Contract forming part of the Normal
Units evidenced thereby) shall be in substantially the form set forth in Exhibit
A hereto, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities
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exchange or quotation system on which the Normal Units are listed or quoted for
trading or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Normal Units
Certificates, as evidenced by their execution of the Normal Units Certificates.
The definitive Normal Units Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Normal Units Certificates, consistent with the provisions of this Agreement, as
evidenced by their execution thereof.
The Stripped Units Certificates (including the form of Purchase
Contracts forming part of the Stripped Units evidenced thereby) shall be in
substantially the form set forth in Exhibit B hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange or the quotation system on which the Stripped Units may be
listed or quoted for trading or any depositary therefor, or as may, consistently
herewith, be determined by the officers of the Company executing such Stripped
Units Certificates, as evidenced by their execution of the Stripped Units
Certificates.
The definitive Stripped Units Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Stripped Units Certificates, consistent with the provisions of this Agreement,
as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS
REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF.
THIS CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS CERTIFICATE IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
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Section 2.2 Form of Agent's Certificate of Authentication. The form
of the Agent's certificate of authentication of the Normal Units shall be in
substantially the form set forth on the form of the Normal Units Certificates.
The form of the Agent's certificate of authentication of the
Stripped Units shall be in substantially the form set forth on the form of the
Stripped Units Certificates.
ARTICLE III
THE UNITS
Section 3.1 Title and Terms; Denominations. The aggregate number of
Normal Units and Stripped Units, if any, evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to 17,500,000 (20,125,000 if the Underwriters' over-allotment option
pursuant to the Underwriting Agreement is exercised in full), except for
Certificates authenticated, executed and delivered upon registration of transfer
of, in exchange for, or in lieu of, other Certificates pursuant to Section 3.4,
3.5, 3.10, 3.13, 3.14, 5.7 or 8.5.
The Certificates shall be issuable only in registered form and only
in denominations of a single Unit and any integral multiple thereof.
Section 3.2 Rights and Obligations Evidenced by the Certificates.
Each Normal Units Certificate shall evidence the number of Normal Units
specified therein, with each such Normal Unit representing the ownership by the
Holder thereof of a beneficial interest in a Capital Security or the appropriate
Treasury Consideration, as the case may be, subject to the Pledge of such
Capital Security or such Treasury Consideration, as the case may be, by such
Holder pursuant to the Pledge Agreement, and the rights and obligations of the
Holder thereof and the Company under one Purchase Contract. The Agent as
attorney-in-fact for, and on behalf of, the Holder of each Normal Unit shall
pledge, pursuant to the Pledge Agreement, the Capital Security or the
appropriate Treasury Consideration, as the case may be, forming a part of such
Normal Unit, to the Collateral Agent and grant to the Collateral Agent a
security interest in the right, title, and interest of such Holder in such
Capital Security or such Treasury Consideration, as the case may be, for the
benefit of the Company, to secure the obligation of the Holder under each
Purchase Contract to purchase the Common Stock of the Company. Prior to the
purchase of shares of Common Stock under each Purchase Contract, such Purchase
Contracts shall not entitle the Holders of Normal Units Certificates to any of
the rights of a holder of shares of Common Stock, including, without limitation,
the right to vote or receive any dividends or other payments or to consent or to
receive notice as stockholders in respect
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of the meetings of stockholders or for the election of directors of the Company
or for any other matter, or any other rights whatsoever as stockholders of the
Company.
Each Stripped Units Certificate shall evidence the number of
Stripped Units specified therein, with each such Stripped Unit representing the
ownership by the Holder thereof of a 1/20 undivided beneficial interest in a
Treasury Security, subject to the Pledge of such interest in such Treasury
Security by such Holder pursuant to the Pledge Agreement, and the rights and
obligations of the Holder thereof and the Company under one Purchase Contract.
Prior to the purchase of shares of Common Stock under each Purchase Contract,
such Purchase Contracts shall not entitle the Holders of Stripped Units
Certificates to any of the rights of a holder of shares of Common Stock,
including, without limitation, the right to vote or receive any dividends or
other payments or to consent or to receive notice as stockholders in respect of
the meetings of stockholders or for the election of directors of the Company or
for any other matter, or any other rights whatsoever as stockholders of the
Company.
Section 3.3 Execution, Authentication, Delivery and Dating. Subject
to the provisions of Sections 3.13 and 3.14, upon the execution and delivery of
this Agreement, and at any time and from time to time thereafter, the Company
may deliver Certificates executed by the Company to the Agent for
authentication, execution on behalf of the Holders and delivery, together with
its Issuer Order for authentication of such Certificates, and the Agent in
accordance with such Issuer Order shall authenticate, execute on behalf of the
Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by the
Chief Executive Officer, the Chief Financial Officer, the President, any
Vice-President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary (or other officer performing similar functions) of the
Company and delivered to the Agent. The signature of any of these officers on
the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized signatory of the Agent, as such Holder's
attorney-in-fact. Such signature by an authorized signatory of the Agent shall
be conclusive evidence that the Holder of such Certificate has entered into the
Purchase Contracts evidenced by such Certificate.
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Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized signatory of the Agent by manual signature,
and such certificate upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and delivered
hereunder.
Section 3.4 Temporary Certificates. Pending the preparation of
definitive Certificates, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the Holders, and deliver, in
lieu of such definitive Certificates, temporary Certificates which are in
substantially the form set forth in Exhibit A or Exhibit B hereto, as the case
may be, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
Normal Units or Stripped Units, as the case may be, are listed, or as may,
consistent herewith, be determined by the officers of the Company executing such
Certificates, as evidenced by their execution of the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of the Company and
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the Holder, and deliver in
exchange therefor, one or more definitive Certificates of like tenor and
denominations and evidencing a like number of Normal Units or Stripped Units, as
the case may be, as the temporary Certificate or Certificates so surrendered.
Until so exchanged, the temporary Certificates shall in all respects evidence
the same benefits and the same obligations with respect to the Normal Units or
Stripped Units, as the case may be, evidenced thereby as definitive
Certificates.
Section 3.5 Registration; Registration of Transfer and Exchange.
The Agent shall keep at the Corporate Trust Office a register (the "Normal Units
Register") in which, subject to such reasonable regulations as it may prescribe,
the Agent shall provide for the registration of Normal Units Certificates and of
transfers of Normal Units Certificates (the Agent, in such capacity, the "Normal
Units Registrar") and a register (the "Stripped Units Register") in which,
subject to such reasonable regulations as it may prescribe, the Agent
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shall provide for the registration of the Stripped Units Certificates and
transfers of Stripped Units Certificates (the Agent, in such capacity, the
"Stripped Units Registrar").
Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office, the Company shall execute and deliver to the Agent,
and the Agent shall authenticate, execute on behalf of the designated transferee
or transferees, and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like tenor and denominations, and
evidencing a like number of Normal Units or Stripped Units, as the case may be.
At the option of the Holder, Certificates may be exchanged for
other Certificates, of like tenor and denominations and evidencing a like number
of Normal Units or Stripped Units, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of the
Holder, and deliver the Certificates which the Holder making the exchange is
entitled to receive.
All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same number of
Normal Units or Stripped Units, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under this Agreement as the Normal
Units or Stripped Units, as the case may be, evidenced by the Certificate
surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Agent) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Agent duly executed, by the Holder thereof or its attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Company and the Agent may require payment
from the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than any exchanges pursuant to Sections 3.6, 3.9
and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated
to execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder and deliver any Certificate
presented or surrendered for registration of transfer or for exchange on or
after the Business Day immediately preceding the earlier of the Stock Purchase
Date or the Termination Date. In lieu of delivery of a new
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Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Agent shall (i) if the Stock Purchase Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Units evidenced by such Certificate, (ii) in the case of
Normal Units, if a Termination Event shall have occurred prior to the Stock
Purchase Date, transfer the Capital Securities or the appropriate Treasury
Consideration, as applicable, relating to such Normal Units, or (iii) in the
case of Stripped Units, if a Termination Event shall have occurred prior to the
Stock Purchase Date, transfer the Treasury Securities relating to such Stripped
Units, in each case subject to the applicable conditions and in accordance with
the applicable provisions of Article Five.
Section 3.6 Book-Entry Interests. The Certificates, on original
issuance, will be issued in the form of one or more, fully registered Global
Certificates, to be delivered to the Depositary by, or on behalf of, the
Company. Such Global Certificate shall initially be registered on the books and
records of the Company in the name of Cede & Co., the nominee of the Depositary,
and no Beneficial Owner will receive a definitive Certificate representing such
Beneficial Owner's interest in such Global Certificate, except as provided in
Section 3.9. The Agent shall enter into an agreement with the Depositary if so
requested by the Company. Unless and until definitive, fully registered
Certificates have been issued to Beneficial Owners pursuant to Section 3.9:
(a) the provisions of this Section 3.6 shall be in full force and
effect;
(b) the Company shall be entitled to deal with the Clearing Agency
for all purposes of this Agreement (including receiving approvals, votes
or consents hereunder) as the Holder of the Units and the sole holder of
the Global Certificate(s) and shall have no obligation to the Beneficial
Owners;
(c) to the extent that the provisions of this Section 3.6 conflict
with any other provisions of this Agreement, the provisions of this
Section 3.6 shall control; and
(d) the rights of the Beneficial owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial owners and the Clearing Agency
and/or the Clearing Agency Participants. The Clearing Agency will make
book-entry transfers among Clearing Agency Participants.
Section 3.7 Notices to Holders. Whenever a notice or other
communication to the Holders is required to be given under this Agreement, the
Company or the Company's agent shall give such notices and communications to the
Holders and, with respect to any
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Units registered in the name of a Clearing Agency or the nominee of a Clearing
Agency, the Company or the Company's agent shall, except as set forth herein,
have no obligations to the Beneficial owners.
Section 3.8 Appointment of Successor Clearing Agency. If any
Clearing Agency elects to discontinue its services as securities depositary with
respect to the Units, the Company may, in its sole discretion, appoint a
successor Clearing Agency with respect to the Units.
Section 3.9 Definitive Certificates. If (i) a Clearing Agency
elects to discontinue its services as securities depositary with respect to the
Units and a successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 3.8, (ii) the Company elects to terminate the
book-entry system through the Clearing Agency with respect to the Units, or
(iii) there shall have occurred and be continuing a default by the Company in
respect of its obligations under one or more Purchase Contracts, then upon
surrender of the Global Certificates representing the Book-Entry Interests with
respect to the Units by the Clearing Agency, accompanied by registration
instructions, the Company shall cause definitive Certificates to be delivered to
Beneficial Owners in accordance with the instructions of the Clearing Agency.
The Company shall not be liable for any delay in delivery of such instructions
and may conclusively rely on and shall be protected in relying on, such
instructions.
Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates. If
any mutilated Certificate is surrendered to the Agent, the Company shall execute
and deliver to the Agent, and the Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, a new Certificate at the cost of
the Holder, evidencing the same number of Normal Units or Stripped Units, as the
case may be, and bearing a Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (ii) such security or indemnity at the cost of the Holder as
may be required by them to hold each of them and any agent of any of them
harmless, then, in the absence of notice to the Company or the Agent that such
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holder, and deliver to the Holder, in lieu of any such destroyed,
lost or stolen Certificate, a new Certificate, evidencing the same number of
Normal Units or Stripped Units, as the case may be, and bearing a Certificate
number not contemporaneously outstanding.
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Notwithstanding the foregoing, the Company shall not be obligated
to execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Certificate on or after the Business Day immediately preceding the earlier of
the Stock Purchase Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Agent shall (i) if the Stock Purchase Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Units evidenced by such Certificate, or (ii) if a
Termination Event shall have occurred prior to the Stock Purchase Date, transfer
the Capital Securities, the appropriate Treasury Consideration or the Treasury
Securities, as the case may be, evidenced thereby, in each case subject to the
applicable conditions and in accordance with the applicable provisions of
Article Five.
Upon the issuance of any new Certificate under this Section, the
Company and the Agent may require the payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Agent)
connected therewith.
Every new Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in respect of
the Unit evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Units evidenced thereby) shall be at any time enforceable
by anyone, and shall be entitled to all the benefits and be subject to all the
obligations of this Agreement equally and proportionately with any and all other
Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11 Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Company and the Agent, and any
agent of the Company or the Agent, may treat the Person in whose name such
Certificate is registered as the owner of the Units evidenced thereby, for the
purpose of receiving distributions on the Capital Securities, performance of the
Purchase Contracts and for all other purposes whatsoever, whether or not any
such distributions shall be overdue and notwithstanding any notice to the
contrary, and neither the Company nor the Agent, nor any agent of the Company or
the Agent, shall be affected by notice to the contrary.
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Notwithstanding the foregoing, with respect to any Global
Certificate, nothing herein shall prevent the Company, the Agent or any agent of
the Company or the Agent, from giving effect to any written certification, proxy
or other authorization furnished by any Clearing Agency (or its nominee), as a
Holder, with respect to such Global Certificate or impair, as between such
Clearing Agency and owners of beneficial interests in such Global Certificate,
the operation of customary practices governing the exercise of rights of such
Clearing Agency (or its nominee) as Holder of such Global Certificate.
Section 3.12 Cancellation. All Certificates surrendered (a) for
delivery of shares of Common Stock on or after any Settlement Date; (b) upon the
transfer of Capital Securities, the appropriate Treasury Consideration or
Treasury Securities, as the case may be, after the occurrence of a Termination
Event; (c) upon the registration of a transfer or exchange of a Unit shall, if
surrendered to any Person other than the Agent, be delivered to the Agent and,
if not already cancelled, shall be promptly cancelled by it. The Company may at
any time deliver to the Agent for cancellation any Certificates previously
authenticated, executed and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Certificates so delivered shall, upon
Issuer Order, be promptly cancelled by the Agent. No Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of or in
exchange for any Certificates cancelled as provided in this Section, except as
expressly permitted by this Agreement. All cancelled Certificates held by the
Agent shall be destroyed by the Agent unless otherwise directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
Section 3.13 Establishment of Stripped Units. A Holder may separate
the Pledged Capital Securities or Pledged Treasury Consideration, as applicable,
from the related Purchase Contracts in respect of the Normal Units held by such
Holder by substituting for such Pledged Capital Securities or Pledged Treasury
Consideration, as the case may be, Treasury Securities that will pay an amount
equal to the aggregate Stated Amount of such Normal Units (a "Collateral
Substitution"), at any time from and after the date of this Agreement and on or
prior to the second Business Day immediately preceding the Stock Purchase Date,
by (a) depositing with the Collateral Agent Treasury Securities having an
aggregate principal amount equal to the aggregate Stated Amount of such Normal
Units, and (b) transferring the related Normal Units to the Agent accompanied by
a notice to the Agent, substantially in the form of Exhibit D hereto, stating
that the Holder has transferred the relevant amount of Treasury Securities to
the Collateral Agent and requesting that the Agent instruct the Collateral Agent
to release the Pledged Capital Securities or Pledged Treasury Consideration, as
the case may be, underlying such Normal
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Units, whereupon the Agent shall promptly give such instruction to the
Collateral Agent, substantially in the form of Exhibit C hereto. Notwithstanding
the foregoing, a Holder may not separate the Pledged Capital Securities or
Pledged Treasury Consideration, as the case may be, from the related Purchase
Contracts in respect of the Normal Units held by such Holder during the periods
beginning on the fourth Business Day prior to the Remarketing Date or any
Subsequent Remarketing Date, as the case may be, and ending on the third
business day following such dates. Upon receipt of the Treasury Securities
described in clause (a) above and the instruction described in clause (b) above,
in accordance with the terms of the Pledge Agreement, the Collateral Agent will
release to the Agent, on behalf of the Holder, such Pledged Capital Securities
or Pledged Treasury Consideration, as the case may be, from the Pledge, free and
clear of the Company's security interest therein, and upon receipt thereof the
Agent shall promptly:
(i) cancel the related Normal Units;
(ii) transfer the Pledged Capital Securities or Pledged Treasury
Consideration, as the case may be, to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver a
Stripped Units Certificate executed by the Company in accordance with
Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Normal Units.
Holders who elect to separate the Pledged Capital Securities or
Pledged Treasury Consideration, as the case may be, from the related Purchase
Contract and to substitute Treasury Securities for such Pledged Capital
Securities or Pledged Treasury Consideration, as the case may be, shall be
responsible for any fees or expenses payable to the Collateral Agent for its
services as Collateral Agent in respect of the substitution, and the Company
shall not be responsible for any such fees or expenses.
Holders may make Collateral Substitutions (i) if Treasury
Securities are being substituted for Pledged Capital Securities, only in
integral multiples of 20 Normal Units, or (ii) if the Collateral Substitutions
occur after the Remarketing Date or any Subsequent Remarketing Date, as the case
may be, only in integral multiples of Normal Units such that the Treasury
Securities to be deposited and the Treasury Consideration to be released are in
integral multiples of $1,000.
In the event a Holder making a Collateral Substitution pursuant to
this Section 3.13 fails to effect a book-entry transfer of the Normal Units or
fails to deliver a Normal Units Certificate to the Agent after depositing
Treasury Securities with the Collateral Agent, the Pledged Capital Securities or
Pledged Treasury Consideration, as the
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case may be, constituting a part of such Normal Units, and any distributions on
such Pledged Capital Securities or Pledged Treasury Consideration, as the case
may be, shall be held in the name of the Agent or its nominee in trust for the
benefit of such Holder, until such Normal Units are so transferred or the Normal
Units Certificate is so delivered, as the case may be, or, with respect to a
Normal Units Certificate, such Holder provides evidence satisfactory to the
Company and the Agent that such Normal Units Certificate has been destroyed,
lost or stolen, together with any indemnity that may be required by the Agent
and the Company.
Except as described in this Section 3.13, for so long as the
Purchase Contract underlying a Normal Unit remains in effect, such Normal Unit
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Normal Unit in respect of the Capital Security
or the appropriate Treasury Consideration, as the case may be, and the Purchase
Contract comprising such Normal Unit may be acquired, and may be transferred and
exchanged, only as a Normal Unit.
Section 3.14 Reestablishment of Normal Units. A Holder of Stripped
Units may reestablish Normal Units at any time from and after the date of this
Agreement and on or prior to the second Business Day immediately preceding the
Stock Purchase Date, by (a) depositing with the Collateral Agent the Capital
Securities or the appropriate Treasury Consideration (and identified by
reference to the Treasury Consideration then comprising Normal Units, as the
case may be, then comprising such number of Normal Units as is equal to such
Stripped Units and (b) transferring such Stripped Units to the Agent accompanied
by a notice to the Agent, substantially in the form of Exhibit D hereto, stating
that the Holder has transferred the relevant amount of Capital Securities or the
appropriate Treasury Consideration, as the case may be, to the Collateral Agent
and requesting that the Agent instruct the Collateral Agent to release the
Pledged Treasury Securities underlying such Stripped Unit, whereupon the Agent
shall promptly give such instruction to the Collateral Agent, substantially in
the form of Exhibit C hereto. Notwithstanding the foregoing, a Holder may not
reestablish Normal Units during the periods beginning on the fourth Business Day
prior to the Remarketing Date or any Subsequent Remarketing Date, as the case
may be, and ending on the third business day following such dates. Upon receipt
of the Capital Securities or the appropriate Treasury Consideration, as the case
may be, described in clause (a) above and the instruction described in clause
(b) above, in accordance with the terms of the Pledge Agreement, the Collateral
Agent will release to the Agent, on behalf of the Holder, such Pledged Treasury
Securities from the Pledge, free and clear of the Company's security interest
therein, and upon receipt thereof the Agent shall promptly:
(i) cancel the related Stripped Units;
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(ii) transfer the Pledged Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver a
Normal Units Certificate executed by the Company in accordance with
Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Stripped Units.
Holders of Stripped Units may reestablish Normal Units (i) only in
integral multiples of 20 Stripped Units for 20 Normal Units or (ii) if the
reestablishment occurs after the Remarketing Date or any Subsequent Remarketing
Date, only in integral multiples of Stripped Units such that the Treasury
Consideration to be deposited and the Treasury Securities to be released are in
integral multiples of $1,000.
Except as provided in this Section 3.14, for so long as the
Purchase Contract underlying a Stripped Unit remains in effect, such Stripped
Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Stripped Unit in respect of the Treasury
Security and Purchase Contract comprising such Stripped Unit may be acquired,
and may be transferred and exchanged, only as a Stripped Unit.
Section 3.15 Transfer of Collateral upon Occurrence of Termination
Event. Upon the occurrence of a Termination Event and the transfer to the Agent
of the Capital Securities, the appropriate Treasury Consideration or the
Treasury Securities, as the case may be, underlying the Normal Units and the
Stripped Units pursuant to the terms of the Pledge Agreement, the Agent shall
request transfer instructions with respect to such Capital Securities or the
appropriate Treasury Consideration or Treasury Securities, as the case may be,
from each Holder by written request mailed to such Holder at its address as it
appears in the Normal Units Register or the Stripped Units Register, as the case
may be. Upon book-entry transfer of the Normal Units or Stripped Units or
delivery of a Normal Units Certificate or Stripped Units Certificate to the
Agent with such transfer instructions, the Agent shall transfer the Capital
Securities, the appropriate Treasury Consideration or Treasury Securities, as
the case may be, underlying such Normal Units or Stripped Units, as the case may
be, to such Holder by book-entry transfer, or other appropriate procedures, in
accordance with such instructions. In the event a Holder of Normal Units or
Stripped Units fails to effect such transfer or delivery, the Capital
Securities, the appropriate Treasury Consideration or Treasury Securities, as
the case may be, underlying such Normal Units or Stripped Units, as the case may
be, and any distributions thereon, shall be held in the name of the Agent or its
nominee in trust for the benefit of such Holder, until such Normal Units or
Stripped Units are transferred or the Normal Units Certificate or Stripped Units
Certificate is surrendered or such Holder provides satisfactory evidence that
such Normal Units Certificate or Stripped Units Certificate has
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been destroyed, lost or stolen, together with any indemnity that may be required
by the Agent and the Company.
Section 3.16 No Consent to Assumption. Each Holder of a Unit, by
acceptance thereof, shall be deemed expressly to have withheld any consent to
the assumption under Section 365 of the Bankruptcy Code or otherwise, of the
Purchase Contract by the Company, any receiver, liquidator or person or entity
performing similar functions or its trustee in the event that the Company
becomes the debtor under the Bankruptcy Code or subject to other similar state
or federal law providing for reorganization or liquidation.
ARTICLE IV
THE CAPITAL SECURITIES
Section 4.1 Payment of Distribution; Rights to Distributions
Preserved; Notice. A distribution on any Capital Security or a payment on any
Treasury Consideration, as the case may be, which is paid on any Payment Date
shall, subject to receipt thereof by the Agent from the Collateral Agent as
provided by the terms of the Pledge Agreement, be paid to the Person in whose
name the Normal Units Certificate (or one or more Predecessor Normal Units
Certificates) of which such Capital Security or the appropriate Treasury
Consideration, as the case may be, is a part is registered at the close of
business on the Record Date for such Payment Date.
Each Normal Units Certificate evidencing Capital Securities
delivered under this Agreement upon registration of transfer of or in exchange
for or in lieu of any other Normal Units Certificate shall carry the rights to
distributions accumulated and unpaid, and to accumulate distributions, which
were carried by the Capital Securities underlying such other Normal Units
Certificate.
In the case of any Normal Unit with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date, or with respect to which Merger Early Settlement of the
underlying Purchase Contract is effected on a Merger Early Settlement Date, or
with respect to which a Collateral Substitution is effected, in each case on a
date that is after any Record Date and on or prior to the next succeeding
Payment Date, distributions on the Capital Security or payments on the
appropriate Treasury Consideration, as the case may be, underlying such Normal
Unit otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Early Settlement, Merger Early Settlement or
Collateral Substitution, as the case may be, and such distributions shall,
subject to receipt thereof by the Agent, be payable to the Person in whose name
the Normal Units Certificate (or one or more Predecessor Normal Unit
Certificates) was registered at the close of business on
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the Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Normal Unit with respect to which Early
Settlement or Merger Early Settlement of the underlying Purchase Contract is
effected, or with respect to which a Collateral Substitution has been effected,
distributions on the related Capital Securities or payments on the appropriate
Treasury Consideration, as the case may be, that would otherwise be payable
after the applicable Settlement Date or after such Collateral Substitution, as
the case may be, shall not be payable hereunder to the Holder of such Normal
Unit; provided, that to the extent that such Holder continues to hold the
separated Capital Securities that formerly comprised a part of such Holder's
Normal Units, such Holder shall be entitled to receive the distributions on such
separated Capital Securities.
Section 4.2 Notice and Voting. Under the terms of the Pledge
Agreement, the Agent will be entitled to exercise the voting and any other
consensual rights pertaining to the Pledged Capital Securities but only to the
extent instructed by the Holders as described below. Upon receipt of notice of
any meeting at which holders of Capital Securities are entitled to vote or upon
any solicitation of consents, waivers or proxies of holders of Capital
Securities, the Agent shall, as soon as practicable thereafter, mail to the
Holders of Normal Units a notice (a) containing such information as is contained
in the notice or solicitation, (b) stating that each Holder on the record date
set by the Agent therefor (which, to the extent possible, shall be the same date
as the record date for determining the holders of Capital Securities entitled to
vote) shall be entitled to instruct the Agent as to the exercise of the voting
rights pertaining to the Pledged Capital Securities underlying their Normal
Units and (c) stating the manner in which such instructions may be given. Upon
the written request of the Holders of Normal Units on such record date, the
Agent shall endeavor insofar as practicable to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum number
of Pledged Capital Securities as to which any particular voting instructions are
received. In the absence of specific instructions from the Holder of a Normal
Unit, the Agent shall abstain from voting the Pledged Capital Security
underlying such Normal Unit. The Company hereby agrees, if applicable, to
solicit Holders of Normal Units to timely instruct the Agent in order to enable
the Agent to vote such Pledged Capital Securities and the Trust shall covenant
to such effect in the Declaration.
Section 4.3 Distribution of Debentures. Upon a voluntary or
involuntary dissolution of the Trust in accordance with the Declaration, the
Liquidation Distribution shall be delivered to the Collateral Agent in exchange
for the Pledged Capital Securities. Thereafter, the applicable part of the
Liquidation Distribution (as defined in the Declaration) will be substituted for
the Pledged Capital Securities, and will be held by the Collateral Agent in
accordance with the terms of the Pledge Agreement to secure the obligations of
each Holder of Normal Units to purchase the Common Stock of the
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Company under the Purchase Contracts constituting a part of such Normal Units.
The remaining portion of the Liquidation Distribution shall be distributed to
the Holders of Separate Capital Securities (as defined in the Pledge Agreement).
Following a voluntary or involuntary dissolution of the Trust, the Holders and
the Collateral Agent shall have such security interests, rights and obligations
with respect to the Liquidation Distribution as the Holders and the Collateral
Agent had in respect of the Pledged Capital Securities as provided in Articles
II, III, IV, V and VI of the Pledge Agreement, and, unless the context otherwise
requires, any reference herein to the Capital Securities or Pledged Capital
Securities shall be deemed to be a reference to such Debentures. The Company may
cause to be made in any Normal Units Certificates thereafter to be issued such
change in phraseology and form (but not in substance) as may be appropriate to
reflect the liquidation of the Trust and the substitution of Debentures for
Capital Securities as Collateral.
ARTICLE V
THE PURCHASE CONTRACTS; THE REMARKETING
Section 5.1 Purchase of Shares of Common Stock. Each Purchase
Contract shall, unless an Early Settlement has occurred in accordance with
Section 5.7, or a Merger Early Settlement has occurred in accordance with
Section 5.8, obligate the Holder of the related Unit to purchase, and the
Company to sell, on the Stock Purchase Date at a price equal to $50 (the
"Purchase Price"), a number of newly issued shares of Common Stock equal to the
Settlement Rate unless, on or prior to the Stock Purchase Date, there shall have
occurred a Termination Event with respect to the Unit of which such Purchase
Contract is a part. The "Settlement Rate" is equal to (a) if the Applicable
Market Value (as defined below) is greater than $16.82 (the "Threshold
Appreciation Price"), 2.97 shares of Common Stock per Purchase Contract, (b) if
the Applicable Market Value is less than the Threshold Appreciation Price, but
is greater than $14.25, the number of shares of Common Stock per Purchase
Contract equal to the Stated Amount of the related Unit divided by the
Applicable Market Value and (c) if the Applicable Market Value is less than
$14.25, 3.51 shares of Common Stock per Purchase Contract, in each case subject
to adjustment as provided in Section 5.4 (and in each case rounded upward or
downward to the nearest 1/10,000th of a share). As provided in Section 5.10, no
fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Stock Purchase Date.
The "Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York
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Stock Exchange (the "NYSE") on such date or, if the Common Stock is not listed
for trading on the NYSE on any such date, as reported in the composite
transactions for the principal United States securities exchange on which the
Common Stock is so listed, or if the Common Stock is not so listed on a United
States national or regional securities exchange, as reported by The Nasdaq Stock
Market, or, if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization, or, if such bid price is not
available, the market value of the Common Stock on such date as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Company. A "Trading Day" means a day on which the Common Stock
(A) is not suspended from trading on any national or regional securities
exchange or association or over-the-counter market at the close of business and
(B) has traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Unit, by its acceptance thereof, irrevocably
authorizes the Agent to enter into and perform the related Purchase Contract on
its behalf as its attorney-in-fact (including the execution of Certificates on
behalf of such Holder), agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase Contracts,
and consents to the provisions hereof, irrevocably authorizes the Agent as its
attorney-in-fact to enter into and perform the Pledge Agreement on its behalf as
its attorney-in-fact, and consents to and agrees to be bound by the Pledge of
the Capital Securities, the appropriate Treasury Consideration or the Treasury
Securities pursuant to the Pledge Agreement; provided that upon a Termination
Event, the rights of the Holder of such Unit under the Purchase Contract may be
enforced without regard to any other rights or obligations. Each Holder of a
Unit, by its acceptance thereof, further covenants and agrees, that, to the
extent and in the manner provided in Section 5.2 and the Pledge Agreement, but
subject to the terms thereof, payments in respect of the Capital Securities, the
appropriate Treasury Consideration or the Treasury Securities to be paid upon
settlement of such Holder's obligations to purchase Common Stock under the
Purchase Contract, shall be paid on the Stock Purchase Date by the Collateral
Agent to the Company in satisfaction of such Holder's obligations under such
Purchase Contract.
Upon registration of transfer of a Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) under the terms of this Agreement, the Purchase Contracts underlying
such Certificate and the Pledge Agreement, and the transferor shall be released
from the obligations under this Agreement, the Purchase Contracts underlying the
Certificates so transferred and the Pledge Agreement. The Company covenants and
agrees, and each Holder of a Certificate, by its
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acceptance thereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
Section 5.2 Payment of Purchase Price; Remarketing. (a) Unless a
Termination Event has occurred or a Holder of a Unit has settled the underlying
Purchase Contract through an Early Settlement pursuant to Section 5.7 or a
Merger Early Settlement pursuant to Section 5.8, the settlement of the Purchase
Contract underlying a Unit will be made in accordance with this Section 5.2.
(b) (i) The Company shall engage a nationally recognized investment
bank (the "Remarketing Agent") pursuant to the Remarketing Agreement
(substantially in the form attached hereto as Exhibit E, with such changes and
modifications as the parties thereto agree on) to sell the Capital Securities of
Holders of Normal Units, other than Holders that have elected not to participate
in the remarketing pursuant to (iv) below, and holders of Separate Capital
Securities that have elected to participate in the remarketing pursuant to
Section 4.5(c) of the Pledge Agreement. On the seventh Business Day prior to
February 15, 2003, the Agent shall give Holders of Normal Units and holders of
Separate Capital Securities notice of remarketing in a daily newspaper in the
English language of general circulation in The City of New York, which is
expected to be The Wall Street Journal, including the specific U.S. Treasury
security or securities (including the CUSIP number and/or the principal terms of
such Treasury security or securities) described in clause (iv) below, that must
be delivered by Holders of Normal Units that elect not to participate in the
remarketing pursuant to (iv) below, no later than 10:00 a.m. on the first
Business Day immediately preceding the Remarketing Date. The Agent shall notify,
by 10:00 a.m., New York City time, on the first Business Day immediately
preceding the Remarketing Date, the Remarketing Agent and the Collateral Agent
of the aggregate number of Capital Securities of Normal Unit Holders to be
remarketed. On the first Business Day immediately preceding the Remarketing
Date, no later than by 10:00 a.m. New York City time, pursuant to the terms of
the Pledge Agreement, the Custodial Agent will notify the Remarketing Agent of
the aggregate number of Separate Capital Securities to be remarketed. On the
first Business Day immediately preceding the Remarketing Date, the Collateral
Agent and the Custodial Agent, pursuant to the terms of the Pledge Agreement,
will deliver for remarketing to the Remarketing Agent all Capital Securities to
be remarketed. Upon receipt of such notice from the Agent and the Custodial
Agent and such Capital Securities from the Collateral Agent and the Custodial
Agent, the Remarketing Agent will, on the third Business Day following the
Remarketing Date, use its reasonable best efforts to sell such Capital
Securities on such date at a price equal to 100.5% of the Remarketing Value. The
Remarketing Agent will use the proceeds from a successful remarketing to
purchase the appropriate U.S. Treasury securities (the "Agent-purchased Security
Treasury Consideration") with the CUSIP numbers, if any, selected by Remarketing
Agent, described in clauses (i)(1) and (ii)(1) of the definition of
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Remarketing Value related to the Capital Securities of Holders of Normal Units
that were remarketed. On or prior to the third Business Day following the
Remarketing Date, the Remarketing Agent shall deliver such Agent-purchased
Treasury Consideration to the Agent, which shall thereupon deliver such
Agent-purchased Treasury Consideration to the Collateral Agent. The Collateral
Agent, for the benefit of the Company, will thereupon apply such Agent-purchased
Treasury Consideration, in accordance with the Pledge Agreement, to secure such
Holders' obligations under the Purchase Contracts. The Remarketing Agent will
deduct as a remarketing fee an amount not exceeding 25 basis points (.25%) of
the total proceeds from the remarketing. The Remarketing Agent will remit (1)
the portion of the proceeds from the remarketing attributable to the Separate
Capital Securities to the holders of Separate Capital Securities that were
remarketed and (2) the remaining portion of the proceeds, less those proceeds
used to purchase the Agent-purchased Treasury Consideration, to the Agent for
the benefit of the Holders of the Normal Units that were remarketed, all
determined on a pro rata basis, in each case, on or prior to the third Business
Day following the Remarketing Date. Holders whose Capital Securities are so
remarketed will not otherwise be responsible for the payment of any Remarketing
Fee in connection therewith.
The "Remarketing Value" means the sum of (i) the value at the
Remarketing Date or the Subsequent Remarketing Date, as the case may be, of U.S.
Treasury securities that will pay, on or prior to the Quarterly Payment Date
falling on the Stock Purchase Date, an amount of cash equal to the aggregate
distributions that are scheduled to be payable on that Quarterly Payment Date,
on (1) the Capital Securities that are included in Normal Units and (2) the
Separate Capital Securities, in each case, which are participating in the
remarketing, assuming for that purpose that (x) no distribution payment on the
Capital Securities will then have been deferred and (y) the distribution rate on
the Capital Securities is equal to the Coupon Rate, (ii) the value at the
Remarketing Date or the Subsequent Remarketing Date, as the case may be, of U.S.
Treasury securities that will pay, on or prior to the Stock Purchase Date, an
amount of cash equal to the Stated Amount of (1) such Capital Securities that
are included in Normal Units and (2) the Separate Capital Securities, in each
case, which are participating in the remarketing, and (iii) if distribution
payments on the Capital Securities are then being deferred, the amount equal to
the aggregate unpaid distribution payments on (1) the Capital Securities that
are included in Normal Units and (2) the Separate Capital Securities, in each
case, which are participating in the remarketing accrued to the third business
day following the Remarketing Date or the Subsequent Remarketing Date, as the
case may be; provided that for purposes of clauses (i) and (ii), above, the
Remarketing Value shall be calculated on the assumptions that (x) the U.S.
Treasury securities are highly liquid and mature on or within 35 days prior to
the Stock Purchase Date, as determined in good faith by the Remarketing Agent in
a manner intended to minimize the Remarketing Value, and (y) the U.S. Treasury
securities are valued based on the ask-side price of the Treasury securities
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at a time between 9:00 a.m. and 11:00 a.m., New York City time, selected by the
Remarketing Agent, on the Remarketing Date or Subsequent Remarketing Date, as
the case may be, as determined on a third-day settlement basis by a reasonably
and customary means selected in good faith by the Remarketing Agent, plus
accrued interest to that date.
(ii) If, in spite of using its commercially reasonable best
efforts, the Remarketing Agent cannot remarket the Capital Securities included
in the remarketing at a price equal to at least 100.5% of the Remarketing Value,
the remarketing will be deemed to have failed (a "Failed Remarketing"). If a
Failed Remarketing occurs, within three Business Days following the Remarketing
Date, the Remarketing Agent shall return any Capital Securities delivered to it
to the Collateral Agent and the Custodial Agent, as applicable. The Remarketing
Agent may make one or more attempts to remarket the Capital Securities in
accordance with the procedures set forth in this Section 5.2(b) and the
Remarketing Agreement, provided that (i) the notice of any Subsequent
Remarketing cannot be given until the Failed Remarketing notice (referred to
below) has been published in respect of any immediately proceeding Failed
Remarketing and (ii) the settlement date in respect of any Subsequent
Remarketing must fall no later than on the Business Day immediately preceding
the Stock Purchase Date. If by the Stock Purchase Date the Remarketing Agent has
failed to remarket the Capital Securities at 100.5% of the Remarketing Value, in
accordance with the terms of the Pledge Agreement the Collateral Agent, for the
benefit of the Company, may exercise its rights as a secured party with respect
to such Capital Securities, including those actions specified in (b) (iii)
below; provided, that if upon a Failed Remarketing, the Collateral Agent
exercises such rights for the benefit of the Company with respect to such
Capital Securities, any accumulated and unpaid distributions on such Capital
Securities will become payable by the Company to the Agent for payment to the
Holder of the Normal Units to which such Capital Securities relates. Such
payment will be made by the Company on or prior to 11 a.m., New York City time,
on the Stock Purchase Date in lawful money of the United States by certified or
cashiers' check or wire transfer in immediately available funds payable to or
upon the order of the Agent. The Company will cause a notice of any Failed
Remarketing to be published on the second Business Day following the Remarketing
Date and any Subsequent Remarketing Date, as the case may be, in a daily
newspaper in the English language of general circulation in The City of New
York, which is expected to be The Wall Street Journal.
(iii) With respect to any Capital Securities which constitute part
of Normal Units which are subject to a Failed Remarketing, the Collateral Agent
for the benefit of the Company reserves all of its rights as a secured party
with respect thereto and, subject to applicable law and paragraph (e) below,
may, among other things, (x) retain such Capital Securities in full satisfaction
of the Holders obligations under the Purchase Contracts or (y) sell such Capital
Securities in one or more public or private sales.
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(iv) A Holder of Normal Units may elect not to participate in the
remarketing and retain the Capital Securities underlying such Units by notifying
the Agent of such election and delivering the specific U.S. Treasury security or
securities (including the CUSIP number and/or the principal terms of such
security or securities) identified by the Agent that constitute the U.S.
Treasury securities described in clauses (i) and (ii) of the definition of
Remarketing Value relating to the retained Capital Securities (as if only such
Capital Securities were being remarketed) ("Opt-out Treasury Consideration") to
the Agent not later than 10:00 a.m. on the first Business Day prior to the
Remarketing Date (or, in the case of a Failed Remarketing, not later than 10:00
a.m. on the first Business Day immediately prior to the Subsequent Remarketing
Date). Upon receipt thereof by the Agent, the Agent shall deliver such Opt-out
Treasury Consideration to the Collateral Agent, which will, for the benefit of
the Company, thereupon apply such Opt-out Treasury Consideration to secure such
Holder's obligations under the Purchase Contracts. On the first Business Day
immediately preceding the Remarketing Date, the Collateral Agent, pursuant to
the terms of the Pledge Agreement, will deliver the Pledged Capital Securities
of such Holder to the Agent. Within three Business Days following the
Remarketing Date, (i) if the remarketing was successful, the Agent shall
distribute such Capital Securities to the Holders thereof, and (ii) if there was
a Failed Remarketing on such date, the Agent will deliver such Capital
Securities to the Collateral Agent, which will, for the benefit of the Company,
thereupon apply such Capital Securities to secure such Holders' obligations
under the Purchase Contract and return the Opt-out Treasury Consideration
delivered by such Holders to such Holders. A Holder that does not so deliver the
Opt-out Treasury Consideration pursuant to this clause (iv) shall be deemed to
have elected to participate in the remarketing.
(c) Upon the maturity of the Pledged Treasury Securities underlying
the Stripped Units and the Pledged Treasury Consideration underlying the Normal
Units, on the Stock Purchase Date, the Collateral Agent shall remit to the
Company an amount equal to the aggregate Purchase Price applicable to such
Units, as payment for the Common Stock issuable upon settlement thereof without
receiving any instructions from the Holders of such Units. In the event the
payments in respect of the Pledged Treasury Securities or the Pledged Treasury
Consideration, underlying a Unit is in excess of the Purchase Price of the
Purchase Contract being settled thereby, the Collateral Agent will distribute
such excess to the Agent for the benefit of the Holder of such Unit when
received.
(d) Any distribution to Holders of excess funds and interest
described in paragraphs (b) and (c) above shall be payable at the office of the
Agent in The City of New York maintained for that purpose or, at the option of
the Holder or the holder of separate Capital Securities, as applicable, by check
mailed to the address of the Person entitled thereto at such address as it
appears on the Register or by wire transfer to an account specified by the
Holder or the holder of separate Capital Securities, as applicable.
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(e) The obligations of each Holder to pay the Purchase Price are
non-recourse obligations and except to the extent paid by Early Settlement or
Merger Early Settlement, are payable solely out of the proceeds of any
Collateral pledged to secure the obligations of the Holders and in no event will
Holders be liable for any deficiency between such payments and the Purchase
Price.
(f) Notwithstanding anything to the contrary herein, the Company
shall not be obligated to issue any Common Stock in respect of a Purchase
Contract or deliver any certificates therefor to the Holder of the related Unit
unless the Company shall have received payment in full of the aggregate Purchase
Price for the shares of Common Stock to be purchased thereunder by such Holder
in the manner herein set forth.
Section 5.3 Issuance of Shares of Common Stock. Unless a
Termination Event shall have occurred on or prior to the Stock Purchase Date or
an Early Settlement or a Merger Early Settlement shall have occurred, on the
Stock Purchase Date, upon its receipt of payment in full of the Purchase Price
for the shares of Common Stock purchased by the Holders pursuant to the
foregoing provisions of this Article and subject to Section 5.4(b), the Company
shall issue and deposit with the Agent, for the benefit of the Holders of the
Outstanding Securities, one or more certificates representing the newly issued
shares of Common Stock registered in the name of the Agent (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions for which a record date and payment
date for such dividend or distribution has occurred after the Stock Purchase
Date, being hereinafter referred to as the "Purchase Contract Settlement Fund")
to which the Holders are entitled hereunder. Subject to the foregoing, upon
surrender of a Certificate to the Agent on or after the Stock Purchase Date,
together with settlement instructions thereon duly completed and executed, the
Holder of such Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of Common Stock which such
Holder is entitled to receive pursuant to the provisions of this Article V
(after taking into account all Units then held by such Holder) together with
cash in lieu of fractional shares as provided in Section 5.10 and any dividends
or distributions with respect to such shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon, and the Certificate
so surrendered shall forthwith be cancelled. Such shares shall be registered in
the name of the Holder or the Holder's designee as specified in the settlement
instructions provided by the Holder to the Agent. If any shares of Common Stock
issued in respect of a Purchase Contract are to be registered to a Person other
than the Person in whose name the Certificate evidencing such Purchase Contract
is registered, no such registration shall be made unless the Person requesting
such registration has paid any transfer and other taxes required by reason of
such registration in a name other than that of the registered Holder of such
Certificate or has established to the satisfaction of the Company that such tax
either has been paid or is not payable.
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Section 5.4 Adjustment of Settlement Rate. (a) Adjustments for
Dividends, Distributions, Stock Splits, Etc. (1) In case the Company shall pay
or make a dividend or other distribution on the Common Stock in Common Stock,
the Settlement Rate, as in effect at the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be increased by dividing such
Settlement Rate by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at the time
outstanding shall not include shares held in the treasury of the Company but
shall include any shares issuable in respect of any scrip certificates issued in
lieu of fractions of shares of Common Stock. The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the treasury
of the Company.
(2) In case the Company shall issue rights, options or warrants to
all holders of its Common Stock (not being available on an equivalent basis to
Holders of the Units upon settlement of the Purchase Contracts underlying such
Units) entitling them, for a period expiring within 45 days after the record
date for the determination of stockholders entitled to receive such rights,
options or warrants, to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the Common Stock
on the date fixed for the determination of stockholders entitled to receive such
rights, options or warrants (other than pursuant to a dividend reinvestment
plan), the Settlement Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by dividing
such Settlement Rate by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such Current Market Price
and the denominator of which shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for subscription or
purchase, such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination. For the
purposes of this paragraph (2), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but
shall include any shares issuable in respect of any scrip certificates issued in
lieu of fractions of shares of Common Stock. The Company shall not issue any
such rights, options or warrants in respect of shares of Common Stock held in
the treasury of the Company.
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(3) In case outstanding shares of Common Stock shall be subdivided
or split into a greater number of shares of Common Stock, the Settlement Rate in
effect at the opening of business on the day following the day upon which such
subdivision or split becomes effective shall be proportionately increased, and,
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the Settlement Rate in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision, split or
combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid exclusively in
cash and any dividend or distribution referred to in paragraph (1) of this
Section), the Settlement Rate shall be adjusted so that the same shall equal the
rate determined by dividing the Settlement Rate in effect immediately prior to
the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction, the numerator of which
shall be the Current Market Price per share of the Common Stock on the date
fixed for such determination less the then fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and described in
a Board Resolution filed with the Agent) of the portion of the assets or
evidences of indebtedness so distributed applicable to one share of Common Stock
and the denominator of which shall be such Current Market Price per share of the
Common Stock, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution. In any case in which this
paragraph (4) is applicable, paragraph (2) of this Section shall not be
applicable.
(5) In case the Company shall, (i) by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash that is
distributed in a Reorganization Event to which Section 5.4(b) applies or as
part of a distribution referred to in paragraph (4) of this Section) in an
aggregate amount that, combined together with (ii) the aggregate amount of any
other distributions to all holders of its Common Stock made exclusively in cash
within the 12 months preceding the date of payment of such distribution and in
respect of which no adjustment pursuant to this paragraph (5) or paragraph (6)
of this Section has been made and (iii) the aggregate of any cash plus the fair
market value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) of consideration payable in
respect of any tender or exchange offer by the Company or any of its
subsidiaries for all or any portion of the Common Stock concluded within the 12
months preceding the date of payment of the
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distribution described in clause (i) above and in respect of which no adjustment
pursuant to this paragraph (5) or paragraph (6) of this Section has been made,
exceeds 15% of the product of the Current Market Price per share of the Common
Stock on the date for the determination of holders of shares of Common Stock
entitled to receive such distribution times the number of shares of Common Stock
outstanding on such date, then, and in each such case, immediately after the
close of business on such date for determination, the Settlement Rate shall be
increased so that the same shall equal the rate determined by dividing the
Settlement Rate in effect immediately prior to the close of business on the date
fixed for determination of the stockholders entitled to receive such
distribution by a fraction (i) the numerator of which shall be equal to the
Current Market Price per share of the Common Stock on the date fixed for such
determination less an amount equal to the quotient of (x) the combined amount
distributed or payable in the transactions described in clauses (i), (ii) and
(iii) above and (y) the number of shares of Common Stock outstanding on such
date for determination and (ii) the denominator of which shall be equal to the
Current Market Price per share of the Common Stock on such date for
determination.
(6) In case (i) a tender or exchange offer made by the Company or
any subsidiary of the Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to stockholders (based on the acceptance (up
to any maximum specified in the terms of the tender or exchange offer) of
Purchased Shares) of an aggregate consideration having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) that combined together with (ii) the
aggregate of the cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender or exchange offer, of
consideration payable in respect of any other tender or exchange offer, by the
Company or any subsidiary of the Company for all or any portion of the Common
Stock expiring within the 12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to paragraph (5)
of this Section or this paragraph (6) has been made and (iii) the aggregate
amount of any distributions to all holders of the Company's Common Stock made
exclusively in cash within the 12 months preceding the expiration of such tender
or exchange offer and in respect of which no adjustment pursuant to paragraph
(5) of this Section or this paragraph (6) has been made, exceeds 15% of the
product of the Current Market Price per share of the Common Stock as of the last
time (the "Expiration Time") tenders could have been made pursuant to such
tender or exchange offer (as it may be amended) times the number of shares of
Common Stock outstanding (including any tendered shares) on the Expiration Time,
then, and in each such case, immediately prior to the opening of business on the
day after the date of the Expiration Time, the Settlement Rate shall be adjusted
so that the same shall equal the rate determined by dividing the Settlement Rate
immediately prior to the close of business on the date of the Expiration
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Time by a fraction (i) the numerator of which shall be equal to (A) the product
of (i) the Current Market Price per share of the Common Stock on the date of the
Expiration Time and (ii) the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time less (B) the amount of
cash plus the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the transactions described in
clauses (i), (ii) and (iii) above (assuming in the case of clause (i) the
acceptance, up to any maximum specified in the terms of the tender or exchange
offer, of Purchased Shares), and (ii) the denominator of which shall be equal to
the product of (A) the Current Market Price per share of the Common Stock as of
the Expiration Time and (B) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less the number of all
shares validly tendered and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the "Purchased
Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.4(b) applies) shall be deemed to involve
(a) a distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be deemed to
be "the date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within the
meaning of paragraph (4) of this Section), and (b) a subdivision, split or
combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
or split becomes effective" or "the day upon which such combination becomes
effective," as the case may be, and "the day upon which such subdivision, split
or combination becomes effective" within the meaning of paragraph (3) of this
Section).
(8) The "Current Market Price" per share of Common Stock on any day
means the average of the daily Closing Prices for the 5 consecutive Trading Days
selected by the Company commencing not more than 30 Trading Days before, and
ending not later than, the earlier of the day in question and the day before the
"ex date" with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "ex date," when used with
respect to any issuance or distribution, shall mean the first date on which the
Common Stock trades regular way on such exchange or in such market without the
right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated to
the nearest 1/10,000th of a share of Common Stock (or if there is not a nearest
1/10,000th of a share to the next lower 1/10,000th of a share). No adjustment in
the Settlement Rate shall be
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required unless such adjustment would require an increase or decrease of at
least one percent therein; provided, that any adjustments which by reason of
this subparagraph are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. If an adjustment is made to the
Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10)
of this Section 5.4(a), an adjustment shall also be made to the Applicable
Market Value solely to determine which of clauses (a), (b) or (c) of the
definition of Settlement Rate in Section 5.1 will apply on the Stock Purchase
Date. Such adjustment shall be made by multiplying the Applicable Market Value
by a fraction, the numerator of which shall be the Settlement Rate immediately
after such adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.4(a) and the denominator of which shall be the Settlement
Rate immediately before such adjustment; provided, that if such adjustment to
the Settlement Rate is required to be made pursuant to the occurrence of any of
the events contemplated by paragraph (1), (2), (3), (4), (5), (7) or (10) of
this Section 5.4(a) during the period taken into consideration for determining
the Applicable Market Value, appropriate and customary adjustments shall be made
to the Settlement Rate.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event. In the event of (i) any consolidation or merger of the Company with or
into another Person (other than a merger or consolidation in which the Company
is the continuing corporation and in which the Common Stock outstanding
immediately prior to the merger or consolidation is not exchanged for cash,
securities or other property of the Company or another corporation), (ii) any
sale, transfer, lease or conveyance to another Person of the property of the
Company as an entirety or substantially as an entirety, (iii) any statutory
exchange of securities of the Company with another Person (other than in
connection with a merger or acquisition) or (iv) any liquidation, dissolution or
winding up of the Company other than as a result of or after the occurrence of a
Termination Event (any such event, a "Reorganization Event"), the Settlement
Rate will be adjusted to provide that each Holder of Units will receive on the
Stock Purchase Date with respect to each Purchase Contract forming a part
thereof, the kind and amount of securities, cash and other property receivable
upon such Reorganization Event (without any interest thereon, and without any
right to dividends or distribution thereon which have a record date that is
prior to the Stock Purchase Date) by a Holder of the number of shares of Common
Stock issuable on account of each Purchase Contract if the Stock Purchase Date
had occurred immediately
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prior to such Reorganization Event assuming such Holder of Common Stock is not a
Person with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made, as the
case may be (any such Person, a "Constituent Person"), or an Affiliate of a
Constituent Person to the extent such Reorganization Event provides for
different treatment of Common Stock held by Affiliates of the Company and
non-Affiliates and such Holder failed to exercise his rights of election, if
any, as to the kind or amount of securities, cash and other property receivable
upon such Reorganization Event (provided that if the kind or amount of
securities, cash and other property receivable upon such Reorganization Event is
not the same for each share of Common Stock held immediately prior to such
Reorganization Event by other than a Constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section the kind and amount
of securities, cash and other property receivable upon such Reorganization Event
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). In the event of
such a Reorganization Event, the Person formed by such consolidation, merger or
exchange or the Person which acquires the assets of the Company or, in the event
of a liquidation or dissolution of the Company, the Company or a liquidating
trust created in connection therewith, shall execute and deliver to the Agent an
agreement supplemental hereto providing that the Holder of each Outstanding
Security shall have the rights provided by this Section 5.4. Such supplemental
agreement shall provide for adjustments which, for events subsequent to the
effective date of such supplemental agreement, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive Reorganization
Events.
Section 5.5 Notice of Adjustments and Certain Other Events. (a)
Whenever the Settlement Rate is adjusted as herein provided, the Company shall:
(i) forthwith compute the Settlement Rate in accordance with
Section 5.4 and prepare and transmit to the Agent an Officer's
Certificate setting forth the Settlement Rate, the method of calculation
thereof in reasonable detail, and the facts requiring such adjustment and
upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an event
that requires an adjustment to the Settlement Rate pursuant to Section
5.4 (or if the Company is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a written notice to the
Holders of the Units of the occurrence of such event and a statement in
reasonable detail setting forth the method by which the adjustment to the
Settlement Rate was determined and setting forth the adjusted Settlement
Rate.
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(b) The Agent shall not at any time be under any duty or
responsibility to any Holder of Units to determine whether any facts exist which
may require any adjustment of the Settlement Rate, or with respect to the nature
or extent or calculation of any such adjustment when made, or with respect to
the method employed in making the same. The Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common
Stock, or of any securities or property, which may at the time be issued or
delivered with respect to any Purchase Contract; and the Agent makes no
representation with respect thereto. The Agent shall not be responsible for any
failure of the Company to issue, transfer or deliver any shares of Common Stock
pursuant to a Purchase Contract or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article.
Section 5.6 Termination Event; Notice. The Purchase Contracts and
all obligations and rights of the Company and the Holders thereunder, including
the rights and obligations of Holders to purchase Common Stock, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Agent or the Company, if, on or prior to the Stock
Purchase Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the Normal Units shall thereafter represent
the right to receive the Capital Securities or the appropriate Treasury
Consideration, as the case may be, forming a part of such Normal Units, and the
Stripped Units shall thereafter represent the right to receive the Treasury
Securities forming a part of such Stripped Units, in each case in accordance
with the provisions of Section 4.3 of the Pledge Agreement. Upon the occurrence
of a Termination Event, the Company shall promptly but in no event later than
two Business Days thereafter give written notice to the Agent, the Collateral
Agent and to the Holders, at their addresses as they appear in the Register.
Section 5.7 Early Settlement. (a) Subject to and upon compliance
with the provisions of this Section 5.7, Purchase Contracts underlying Units
having an aggregate Stated Amount equal to $1,000 or an integral multiple
thereof, may, at the option of the Holder thereof, be settled early ("Early
Settlement") on or prior to the seventh Business Day immediately preceding the
Remarketing Date or any Subsequent Remarketing Date. In order to exercise the
right to effect Early Settlement with respect to any Purchase Contracts, the
Holder of the Certificate evidencing the related Units shall deliver such
Certificate to the Agent at the Corporate Trust office duly endorsed for
transfer to the Company or in blank with the form of Election to Settle Early on
the reverse thereof duly completed and accompanied by payment (payable to the
Company in immediately available funds in an amount (the "Early Settlement
Amount") equal to the product of (A) the Stated Amount of such Units times (B)
the number of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement. No payment or adjustment shall be made upon Early
Settlement of any Purchase Contract on account of any dividends on
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the Common Stock issued upon such Early Settlement. If the foregoing
requirements are first satisfied with respect to Purchase Contracts underlying
any Unit at or prior to 5:00 p.m., New York City time, on a Business Day, such
day shall be the "Early Settlement Date" with respect to such Unit and if such
requirements are first satisfied after 5:00 p.m., New York City time, on a
Business Day or on a day that is not a Business Day, the "Early Settlement Date"
with respect to such Units shall be the next succeeding Business Day.
(b) Upon Early Settlement of any Purchase Contract by the Holder of
the related Units, the Company shall issue, and the Holder shall be entitled to
receive, 2.97 shares of Common Stock on account of such Purchase Contract (the
"Early Settlement Rate"). The Early Settlement Rate shall be adjusted in the
same manner and at the same time as the Settlement Rate is adjusted. As promptly
as practicable after Early Settlement of Purchase Contracts in accordance with
the provisions of this Section 5.7, the Company shall issue and shall deliver to
the Agent at the Corporate Trust Office a certificate or certificates for the
full number of shares of Common Stock issuable upon such Early Settlement
together with payment in lieu of any fraction of a share, as provided in Section
5.10.
(c) No later than the third Business Day after the applicable Early
Settlement Date the Company shall cause (i) the shares of Common Stock issuable
upon Early Settlement of Purchase Contracts to be issued and delivered, and (ii)
the related Pledged Capital Securities or Pledged Treasury Consideration, in the
case of Normal Units, or the related Pledged Treasury Securities, in the case of
Stripped Units, to be released from the Pledge by the Collateral Agent and
transferred, in each case, to the Agent for delivery to the Holder thereof or
the Holder's designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Pledged Capital
Securities, Pledged Treasury Consideration or Pledged Treasury Securities, as
the case may be, from the Collateral Agent, as applicable, the Agent shall, in
accordance with the instructions provided by the Holder thereof on the
applicable form of Election to Settle Early on the reverse of the Certificate
evidencing the related Units, (i) transfer to the Holder the Pledged Capital
Securities, Pledged Treasury Consideration or Pledged Treasury Securities, as
the case may be, forming a part of such Units, and (ii) deliver to the Holder a
certificate or certificates for the full number of shares of Common Stock
issuable upon such Early Settlement together with payment in lieu of any
fraction of a share, as provided in Section 5.10.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Units evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the Agent
shall authenticate, countersign and
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deliver to the Holder thereof, at the expense of the Company, a Certificate
evidencing the Units as to which Early Settlement was not effected.
Section 5.8 Early Settlement Upon Merger. (a) In the event of a
merger or consolidation of the Company of the type described in clause (i) of
Section 5.4(b) in which the Common Stock outstanding immediately prior to such
merger or consolidation is exchanged for consideration consisting of at least
30% cash or cash equivalents (any such event a "Cash Merger"), then the Company
(or the successor to the Company hereunder) shall be required to offer the
Holder of each Unit the right to settle the Purchase Contract underlying such
Unit prior to the Stock Purchase Date ("Merger Early Settlement") as provided
herein. On or before the fifth Business Day after the consummation of a Cash
Merger, the Company or, at the request and expense of the Company, the Agent,
shall give all Holders notice of the occurrence of the Cash Merger and of the
right of Merger Early Settlement arising as a result thereof. The Company shall
also deliver a copy of such notice to the Agent and the Collateral Agent.
Each such notice shall contain:
(i) the date, which shall be not less than 20 nor more
than 30 calendar days after the date of such notice, on which the
Merger Early Settlement will be effected (the "Merger Early
Settlement Date");
(ii) the date, which shall be three Business Days prior
to the Merger Early Settlement Date, by which the Merger Early
Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such
Cash Merger and the kind and amount of securities, cash and other
property receivable by the Holder upon settlement of each Purchase
Contract pursuant to Section 5.4(b);
(iv) a statement to the effect that all or a portion of
the Purchase Price payable by the Holder to settle the Purchase
Contract will be offset against the amount of cash so receivable
upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise
the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall
deliver to the Agent at the Corporate Trust Office on or before 5:00 p.m., New
York City time on the date specified in the notice the Certificate(s) evidencing
the Units with respect to which
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the Merger Early Settlement right is being exercised duly endorsed for transfer
to the Company or in blank with the form of Election to Settle Early on the
reverse thereof duly completed and accompanied by payment (payable to the
Company in immediately available funds in an amount equal to the Early
Settlement Amount less the amount of cash that otherwise would be deliverable by
the Company or its successor upon settlement of the Purchase Contract in lieu of
Common Stock pursuant to Section 5.4(b) and as described in the notice to
Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date the Company shall deliver
or cause to be delivered (i) the net cash, securities and other property to be
received by such exercising Holder, equal to the Settlement Rate as adjusted
pursuant to Section 5.4, in respect of the number of Purchase Contracts for
which such Merger Early Settlement right was exercised, and (ii) the related
Pledged Capital Securities or Pledged Treasury Consideration, in the case of
Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to
be released from the Pledge by the Collateral Agent and transferred, in each
case, to the Agent for delivery to the Holder thereof or its designee. In the
event a Merger Early Settlement right shall be exercised by a Holder in
accordance with the terms hereof, all references herein to Stock Purchase Date
shall be deemed to refer to such Merger Early Settlement Date.
(d) Upon Merger Early Settlement of any Purchase Contracts, and
subject to receipt of such net cash, securities or other property from the
Company and the Pledged Capital Securities, Pledged Treasury Consideration or
Pledged Treasury Securities, as the case may be, from the Collateral Agent, as
applicable, the Agent shall, in accordance with the instructions provided by the
Holder thereof on the applicable form of Election to Settle Early on the reverse
of the Certificate evidencing the related Units, (i) transfer to the Holder the
Pledged Capital Securities, Pledged Treasury Consideration or Pledged Treasury
Securities, as the case may be, forming a part of such Units, and (ii) deliver
to the Holder such net cash, securities or other property issuable upon such
Merger Early Settlement together with payment in lieu of any fraction of a
share, as provided in Section 5.10.
(e) In the event that Merger Early Settlement is effected with
respect to Purchase Contracts underlying less than all the Units evidenced by a
Certificate, upon such Merger Early Settlement the Company (or the successor to
the Company hereunder) shall execute and the Agent shall authenticate,
countersign and deliver to the Holder thereof, at the expense of the Company, a
Certificate evidencing the Units as to which Merger Early Settlement was not
effected.
Section 5.9 Charges and Taxes. The Company will pay all stock
transfer and similar taxes attributable to the initial issuance and delivery of
the shares of Common
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Stock pursuant to the Purchase Contracts; provided, that the Company shall not
be required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Certificate evidencing a Unit or any issuance
of a share of Common Stock in a name other than that of the registered Holder of
a Certificate surrendered in respect of the Units evidenced thereby, other than
in the name of the Agent, as custodian for such Holder, and the Company shall
not be required to issue or deliver such share Certificate or Certificates
unless and until the Person or Persons requesting the transfer or issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
Section 5.10 No Fractional Shares. No fractional shares or scrip
representing fractional shares of Common Stock shall be issued or delivered upon
settlement on the Stock Purchase Date or upon Early Settlement or Merger Early
Settlement of any Purchase Contracts. If Certificates evidencing more than one
Purchase Contract shall be surrendered for settlement at one time by the same
Holder, the number of full shares of Common Stock which shall be delivered upon
settlement shall be computed on the basis of the aggregate number of Purchase
Contracts evidenced by the Certificates so surrendered. Instead of any
fractional share of Common Stock which would otherwise be deliverable upon
settlement of any Purchase Contracts on the applicable Settlement Date or upon
Early Settlement or Merger Early Settlement, the Company, through the Agent,
shall make a cash payment in respect of such fractional shares in an amount
equal to the value of such fractional shares times the Applicable Market Value.
The Company shall provide the Agent from time to time with sufficient funds to
permit the Agent to make all cash payments required by this Section 5.10 in a
timely manner.
ARTICLE VI
REMEDIES
Section 6.1 Unconditional Right of Holders to Purchase Common
Stock. The Holder of any Unit shall have the right, which is absolute and
unconditional, to purchase Common Stock pursuant to the Purchase Contract
constituting a part of such Unit and to institute suit for the enforcement of
any such right to purchase Common Stock, and such rights shall not be impaired
without the consent of such Holder.
Section 6.2 Restoration of Rights and Remedies. If any Holder has
instituted any proceeding to enforce any right or remedy under this Agreement
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company and such Holder shall be
restored severally and respectively to their former
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positions hereunder and thereafter all rights and remedies of such Holder shall
continue as though no such proceeding had been instituted.
Section 6.3 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Certificates in the last paragraph of Section 3.10, no right or
remedy herein conferred upon or reserved to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.4 Delay or Omission Not Waiver. No delay or omission of
any Holder to exercise any right or remedy upon a default shall impair any such
right or remedy or constitute a waiver of any such right. Every right and remedy
given by this Article or by law to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by such Holders.
Section 6.5 Undertaking for Costs. All parties to this Agreement
agree, and each Holder of a Unit, by its acceptance of such Unit shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Agreement, or in any suit
against the Agent for any action taken, suffered or omitted by it as Agent, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided that the provisions of this Section shall not
apply to any suit instituted by the Company, to any suit instituted by the
Agent, to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Securities, or to any suit instituted
by any Holder for the enforcement of distributions on any Capital Securities on
any Purchase Contract on or after the respective Payment Date therefor in
respect of any Unit held by such Holder, or for enforcement of the right to
purchase shares of Common Stock under the Purchase Contract constituting part of
any Unit held by such Holder.
Section 6.6 Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Agreement; and the Company (to the extent that it may lawfully
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do so) hereby expressly waives all benefit or advantage of any such law, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VII
THE AGENT
Section 7.1 Certain Duties and Responsibilities. (a)(1) The Agent
undertakes to perform, with respect to the Units and Separate Capital
Securities, such duties and only such duties as are specifically set forth in
this Agreement and the Pledge Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Agent; and
(2) in the absence of bad faith, willful misconduct or negligence
on its part, the Agent may, with respect to the Units and Separate Capital
Securities, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Agent and conforming to the requirements of this Agreement, but
in the case of any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Agent, the Agent shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own negligent action, its own negligent failure
to act, its own bad faith, or its own willful misconduct, except that:
(1) this paragraph shall not be construed to limit the effect of
paragraph (a) of this Section;
(2) the Agent shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Agent was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if adequate indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
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(d) The Agent is authorized to execute and deliver the Pledge
Agreement in its capacity as Agent.
Section 7.2 Notice of Default. Within 30 days after the
occurrence of any default by the Company hereunder of which a Responsible
Officer of the Agent has actual knowledge, the Agent shall transmit by mail to
the Company and the Holders of Units, as their names and addresses appear in the
Register, notice of such default hereunder, unless such default shall have been
cured or waived.
Section 7.3 Certain Rights of Agent. Subject to the provisions
of Section 7.1:
(a) the Agent may, in absence of bad faith, conclusively rely
and shall be fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officer's Certificate, Issuer
Order or Issuer Request, and any resolution of the Board of Directors
of the Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Agent (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer's Certificate of the
Company;
(d) the Agent may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Agent, in its discretion, may make
reasonable further inquiry or investigation into such facts or matters
related to the execution, delivery and performance of the Purchase
Contracts as it may see fit, and, if the Agent shall determine to make
such further inquiry or investigation, it shall be
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given a reasonable opportunity to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(f) the Agent may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or an Affiliate of the Agent and the Agent shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney or an Affiliate appointed with due care by it hereunder.
Section 7.4 Not Responsible for Recitals or Issuance of Units.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Company and the Agent assumes no responsibility for their
accuracy. The Agent makes no representations as to the validity or sufficiency
of either this Agreement or of the Units, or of the Pledge Agreement or the
Pledge. The Agent shall not be accountable for the use or application by the
Company of the proceeds in respect of the Purchase Contracts.
Section 7.5 May Hold Units. Any Registrar or any other agent
of the Company, or the Agent and its Affiliates, in their individual or any
other capacity, may become the owner or pledgee of Units and may otherwise deal
with the Company, the Collateral Agent or any other Person with the same rights
it would have if it were not Registrar or such other agent, or the Agent.
Section 7.6 Money Held in Custody. Money held by the Agent in
custody hereunder need not be segregated from the Agent's other funds except to
the extent required by law or provided herein. The Agent shall be under no
obligation to invest or pay interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
Section 7.7 Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Agent from time to time reasonable
compensation for all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to
reimburse the Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance
with any provision of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence, willful misconduct or bad
faith; and
(3) to indemnify the Agent and any predecessor Agent for, and
to hold it harmless against, any loss, liability or expense incurred
without negligence, willful
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misconduct or bad faith on its part, arising out of or in connection
with the acceptance or administration of its duties hereunder, including
the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The provisions of this Section 7.7 shall survive the
termination of this Agreement.
Section 7.8 Corporate Agent Required; Eligibility. There shall
at all times be an Agent hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having (or being a member of a bank holding company having) a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and having a Corporate Trust Office in
the Borough of Manhattan, The City of New York, if there be such a corporation,
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a successor
Agent pursuant to this Article shall become effective until the acceptance of
appointment by the successor Agent in accordance with the applicable
requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice
thereof to the Company 60 days prior to the effective date of such resignation.
If the instrument of acceptance by a successor Agent required by Section 7.10
shall not have been delivered to the Agent within 30 days after the giving of
such notice of resignation, the resigning Agent may petition any court of
competent jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders
of a majority in number of the Outstanding Securities delivered to the Agent and
the Company.
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(d) If at any time
(1) the Agent fails to comply with Section 310(b) of the TIA,
as if the Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Unit for at least six
months, or
(2) the Agent shall cease to be eligible under Section 7.8 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (x) the Company by a Board Resolution may remove the
Agent, or (y) any Holder who has been a bona fide Holder of a Unit for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Agent and the
appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 7.10. If no successor
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 7.10, any Holder who has been a bona fide Holder
of a Unit for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor
Agent to give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders as their names and addresses
appear in the applicable Register. Each notice shall include the name of the
successor Agent and the address of its Corporate Trust Office.
Section 7.10 Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Agent, every such successor
Agent so appointed shall execute, acknowledge and deliver to the Company and to
the retiring Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Agent shall become effective and such
successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, agencies and duties
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of the retiring Agent; but, on the request of the Company or the successor
Agent, such retiring Agent shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Agent all the rights,
powers and trusts of the retiring Agent and shall duly assign, transfer and
deliver to such successor Agent all property and money held by such retiring
Agent hereunder.
(b) Upon request of any such successor Agent, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at
the time of such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 7.11 Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent, shall be the successor of the Agent hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Agent then in office, any successor by merger, conversion or consolidation to
such Agent shall adopt such authentication and execution and deliver the
Certificates so authenticated and executed with the same effect as if such
successor Agent had itself authenticated and executed such Units.
Section 7.12 Preservation of Information; Communications to
Holders. (a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Registrar.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Agent, and furnish to the Agent reasonable
proof that each such applicant has owned a Unit for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Units and is accompanied by a copy of
the form of proxy or other communication which such applicants propose to
transmit, then the Agent shall mail to all the Holders copies of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Agent of the materials to be mailed and of
payment, or provision, in the
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absence of bad faith, satisfactory to the Agent for the payment, of the
reasonable expenses of such mailing.
Section 7.13 No Obligations of Agent. Except to the extent
otherwise provided in this Agreement, the Agent assumes no obligation and shall
not be subject to any liability under this Agreement, the Pledge Agreement or
any Purchase Contract in respect of the obligations of the Holder of any Unit
thereunder. The Company agrees, and each Holder of a Certificate, by such
Holder's acceptance thereof, shall be deemed to have agreed, that the Agent's
execution of the Certificates on behalf of the Holders shall be solely as agent
and attorney-in-fact for the Holders, and that the Agent shall have no
obligation to perform such Purchase Contracts on behalf of the Holders, except
to the extent expressly provided in Article Five.
Section 7.14 Tax Compliance. (a) The Agent, on its own behalf and
on behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Units or (ii)
the issuance, delivery, holding, transfer, redemption or exercise of rights
under the Units. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Agent shall comply with any reasonable written direction
timely received from the Company with respect to the application of such
requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement rely on any such direction
in accordance with the provisions of Section 7.1(a)(2).
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written request, to the Company or its authorized representative within a
reasonable period of time after receipt of such request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
Section 8.1 Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Agent, at any time and
from time to time, may enter into one or more agreements supplemental hereto, in
form satisfactory to the Company and the Agent, for any of the following
purposes:
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(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Certificates; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.4(b) or 5.8; or
(5) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions
herein, or to make any other provisions with respect to such matters or
questions arising under this Agreement, provided such action shall not
adversely affect the interests of the Holders.
Section 8.2 Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the outstanding
Purchase Contracts voting together as one class, by Act of said Holders
delivered to the Company and the Agent, the Company, when authorized by a Board
Resolution, and the Agent may enter into an agreement or agreements supplemental
hereto for the purpose of modifying in any manner the terms of the Purchase
Contracts, or the provisions of this Agreement or the rights of the Holders in
respect of the Units; provided, that, except as contemplated herein, no such
supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be
Pledged to secure a Holder's Obligations under the Purchase Contract,
impair the right of the Holder of any Purchase Contract to receive
distributions on the related Collateral (except for the rights of
Holders of Normal Units to substitute the Treasury Securities for the
Pledged Capital Securities or Pledged Treasury Consideration or the
rights of holders of Stripped Units to substitute Capital Securities or
appropriate Treasury Consideration for the Pledged Treasury Securities)
or otherwise adversely affect the Holder's rights in or to such
Collateral or materially adversely alter the rights in or to such
Collateral;
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(3) impair the right to institute suit for the enforcement of
any Purchase Contract;
(4) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the price to
purchase shares of Common Stock upon settlement of any Purchase
Contract, change the Stock Purchase Date or otherwise materially
adversely affect the Holder's rights under any Purchase Contract; or
(5) reduce the percentage of the outstanding Purchase
Contracts the consent of whose Holders is required for any such
supplemental agreement;
provided, that if any amendment or proposal referred to above would adversely
affect only the Normal Units or the Stripped Units, then only the affected class
of Holder as of the record date for the Holders entitled to vote thereon will be
entitled to vote on such amendment or proposal, and such amendment or proposal
shall not be effective except with the consent of Holders of not less than a
majority of such class.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 8.3 Execution of Supplemental Agreements. In
executing, or accepting the additional agencies created by, any supplemental
agreement permitted by this Article or the modifications thereby of the agencies
created by this Agreement, the Agent shall be provided and (subject to Section
7.1) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental agreement is authorized or permitted by
this Agreement. The Agent may, but shall not be obligated to, enter into any
such supplemental agreement which affects the Agent's own rights, duties or
immunities under this Agreement or otherwise.
Section 8.4 Effect of Supplemental Agreements. Upon the
execution of any supplemental agreement under this Article, this Agreement shall
be modified in accordance therewith, and such supplemental agreement shall form
a part of this Agreement for all purposes; and every Holder of Certificates
theretofore or thereafter authenticated, executed on behalf of the Holders and
delivered hereunder shall be bound thereby.
Section 8.5 Reference to Supplemental Agreements. Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any supplemental agreement pursuant to this Article may, and shall
if required by the Agent, bear a notation in form approved by the Agent as to
any matter provided for in such supplemental agreement. If the Company shall so
determine, new Certificates so modified as to
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conform, in the opinion of the Agent and the Company, to any such supplemental
agreement may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Agent in exchange for
Outstanding Certificates.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Company covenants that it will not
(a) merge or consolidate with any other Person or (b) sell, assign, transfer,
lease or convey all or substantially all of its properties and assets to any
Person or group of affiliated Persons in one transaction or a series of related
transactions other than, with respect to clause (b), a direct or indirect
wholly-owned subsidiary of the Company, unless (i) either the Company shall be
the continuing corporation, or the successor (if other than the Company) shall
be a corporation organized and existing under the laws of the United States of
America or a State thereof or the District of Columbia and such corporation
shall expressly assume all the obligations of the Company under the Purchase
Contracts, the Debentures, the Capital Securities Guarantee, this Agreement, the
Remarketing Agreement, and the Pledge Agreement by one or more supplemental
agreements in form reasonably satisfactory to the Agent and the Collateral
Agent, executed and delivered to the Agent and the Collateral Agent by such
corporation, and (ii) the Company or such successor corporation, as the case may
be, shall not, immediately after such merger or consolidation, or such sale,
assignment, transfer, lease or conveyance, be in default in the performance of
any covenant or condition hereunder, under any of the Units or under the Pledge
Agreement.
Section 9.2 Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, assignment, transfer, lease or
conveyance and upon any such assumption by a successor corporation in accordance
with Section 9.1, such successor corporation shall succeed to and be substituted
for the Company with the same effect as if it had been named herein as the
Company. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Certificates evidencing Units issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Agent; and, upon the order
of such successor corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Agreement prescribed, the Agent shall
authenticate and execute on behalf of the Holders and deliver any Certificates
which previously shall have been signed and delivered by the officers of the
Company to the Agent for authentication and execution, and any Certificate
evidencing Units which such successor corporation thereafter shall cause to be
signed and delivered to the Agent for that purpose. All the Certificates so
issued shall in all respects have the same legal rank and benefit under this
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Agreement as the Certificates theretofore or thereafter issued in accordance
with the terms of this Agreement as though all of such Certificates had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, assignment,
transfer, lease or conveyance such change in phraseology and form (but not in
substance) may be made in the Certificates evidencing Units thereafter to be
issued as may be appropriate.
Section 9.3 Opinion of Counsel Given to Agent. The Agent, subject
to Sections 7.1 and 7.3, shall receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, assignment, transfer, lease
or conveyance, and any such assumption, complies with the provisions of this
Article and that all conditions precedent to the consummation of any such
consolidation, merger, sale, assignment, transfer, lease or conveyance have been
met.
ARTICLE X
COVENANTS
Section 10.1 Performance Under Purchase Contracts. The Company
covenants and agrees for the benefit of the Holders from time to time of the
Units that it will duly and punctually perform its obligations under the
Purchase Contracts in accordance with the terms of the Purchase Contracts and
this Agreement.
Section 10.2 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York an office or agency
where Certificates may be presented or surrendered for acquisition of shares of
Common Stock upon settlement of the Purchase Contracts on any Settlement Date
and for transfer of Collateral upon occurrence of a Termination Event, where
Certificates may be surrendered for registration of transfer or exchange, for a
Collateral Substitution or reestablishment of Normal Units and where notices and
demands to or upon the Company in respect of the Units and this Agreement may be
served. The Company will give prompt written notice to the Agent of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Agent as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where Certificates may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, that no such designation
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or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, The City of New York
for such purposes. The Company will give prompt written notice to the Agent of
any such designation or rescission and of any change in the location of any such
other office or agency. The Company hereby designates as the place of payment
for the Units the Corporate Trust Office and appoints the Agent at its Corporate
Trust Office as paying agent in such city.
Section 10.3 Company to Reserve Common Stock. The Company shall
at all times prior to the Stock Purchase Date reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Stock the full
number of shares of Common Stock issuable against tender of payment in respect
of all Purchase Contracts constituting a part of the Units evidenced by
Outstanding Certificates.
Section 10.4 Covenants as to Common Stock. The Company covenants
that all shares of Common Stock which may be issued against tender of payment in
respect of any Purchase Contract constituting a part of the Outstanding
Securities will, upon issuance, be duly authorized, validly issued, fully paid
and nonassessable.
Section 10.5 Statements of Officer of the Company as to Default.
The Company will deliver to the Agent, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating whether or not to the best knowledge of the signer thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which such
Officer may have knowledge.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
METLIFE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name:
Title:
BANK ONE TRUST COMPANY, N.A.
as Purchase Contract Agent
By: /s/ Xxxxxx Xxx Xxxxxxx
-----------------------------
Name: XXXXXX XXX XXXXXXX
Title: VICE PRESIDENT AND
ASSISTANT SECRETARY
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EXHIBIT A
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE
NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
Company or its agent for registration of transfer, exchange or payment, and any
Certificate issued is registered in the name of Cede & Co., or such other name
as requested by an authorized representative of The Depository Trust Company,
and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
No. Cusip No. 00000X000
Number of Normal Units
Form of Face of Normal Units Certificate
This Normal Units Certificate certifies that Cede & Co. is the
registered Holder of the number of Normal Units set forth above. Each Normal
Unit represents (i) either (a) beneficial ownership by the Holder of one 8%
Capital Security (the "Capital Security") of MetLife Capital Trust I, a Delaware
statutory business trust (the "Trust"), having a stated liquidation amount of
$50, subject to the Pledge of such Capital Security by such Holder pursuant to
the Pledge Agreement, or (b) if the Capital Security has been remarketed by the
Remarketing Agent (or if the Holder has elected not to have the Capital Security
remarketed by delivering the appropriate Treasury Consideration specified by the
Remarketing Agent), the appropriate Treasury Consideration, subject to the
Pledge of such Treasury Consideration by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with MetLife, Inc., a Delaware corporation (the "Company"). All
capitalized terms used herein which are defined in the Purchase Contract
Agreement have the meaning set forth therein.
70
Pursuant to the Pledge Agreement, the Capital Security or the
appropriate Treasury Consideration, as the case may be, constituting part of
each Normal Unit evidenced hereby has been pledged to the Collateral Agent, for
the benefit of the Company, to secure the obligations of the Holder under the
Purchase Contract comprising a part of such Normal Unit.
The Pledge Agreement provides that all payments in respect of the
Pledged Capital Securities or Pledged Treasury Consideration received by the
Collateral Agent shall be paid by the Collateral Agent by wire transfer in same
day funds (i) in the case of (A) quarterly cash distributions on Normal Units
which include Pledged Capital Securities or Pledged Treasury Consideration and
(B) any payments of the Capital Securities or Treasury Consideration, as the
case may be, that have been released from the Pledge pursuant to the Pledge
Agreement, to the Agent to the account designated by the Agent, no later than
10:00 a.m., New York City time, on the Business Day such payment is received by
the Collateral Agent (provided that in the event such payment is received by the
Collateral Agent on a day that is not a Business Day or after 9:00 a.m., New
York City time, on a Business Day, then such payment shall be made no later than
9:30 a.m., New York City time, on the next succeeding Business Day) and (ii) in
the case of payments in respect of any Pledged Capital Securities or Pledged
Treasury Consideration, as the case may be, to be paid upon settlement of such
Holder's obligations to purchase Common Stock under the Purchase Contract, to
the Company on the Stock Purchase Date (as defined herein) in accordance with
the terms of the Pledge Agreement, in full satisfaction of the respective
obligations of the Holders of the Normal Units of which such Pledged Capital
Securities or Pledged Treasury Consideration, as the case may be, are a part
under the Purchase Contracts forming a part of such Normal Units. Quarterly
distributions on Normal Units which include Pledged Capital Securities or
Pledged Treasury Consideration, as the case may be, which are payable quarterly
in arrears on February 15, May 15, August 15 and November 15 each year,
commencing August 15, 2000 (a "Payment Date"), shall, subject to receipt thereof
by the Agent from the Collateral Agent, be paid to the Person in whose name this
Normal Units Certificate (or a Predecessor Normal Units Certificate) is
registered at the close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Normal Units Certificate to purchase, and the Company to sell, on May 15, 2003
(the "Stock Purchase Date"), at a price equal to $50 (the "Stated Amount"), a
number of shares of common stock, $0.01 par value per share ("Common Stock"), of
the Company, equal to the Settlement Rate, unless on or prior to the Stock
Purchase Date there shall have occurred a Termination Event or an Early
Settlement or Merger Early Settlement with respect to the Normal Units of which
such Purchase Contract is a part, all as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof. The
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00
Xxxxxxxx Price (as defined herein) for the shares of Common Stock purchased
pursuant to each Purchase Contract evidenced hereby, if not paid earlier, shall
be paid on the Stock Purchase Date by application of payments received in
respect of the Pledged Capital Securities or the Pledged Treasury Consideration,
as the case may be, pledged to secure the obligations of the Holder under such
Purchase Contract.
Distributions on the Capital Securities or payments on the appropriate
Treasury Consideration (as specified in clause (i) of the definition of the
Remarketing Value), as the case may be, will be payable at the office of the
Agent in The City of New York or, at the option of the Company, by check mailed
to the address of the Person entitled thereto as such address appears on the
Normal Units Register or by wire transfer to an account specified by the
Company.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Normal Units Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
METLIFE, INC.
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the Purchase
Contracts evidenced hereby)
By: Bank One Trust Company, N.A.,
not individually but solely as
Attorney-in-Fact of such Holder
By: __________________________________
Name:
Title:
Dated:
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AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Normal Units Certificates referred to in the
within mentioned Purchase Contract Agreement.
BANK ONE TRUST COMPANY, N.A.,
as Purchase Contract Agent
By: __________________________________
Authorized officer
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(Form of Reverse of Normal Units Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of April 7, 2000 (as may be supplemented from time
to time, the "Purchase Contract Agreement"), between the Company and Bank One
Trust Company, N.A., as Purchase Contract Agent (including its successors
thereunder, herein called the "Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, the Company, and the Holders and of the terms upon
which the Normal Units Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Normal Units Certificate to purchase, and the Company to sell, on the Stock
Purchase Date at a price equal to $50 (the "Purchase Price"), a number of shares
of Common Stock of the Company equal to the Settlement Rate, unless, on or prior
to the Stock Purchase Date, there shall have occurred a Termination Event or an
Early Settlement or Merger Early Settlement with respect to the Unit of which
such Purchase Contract is a part. The "Settlement Rate" is equal to (a) if the
Applicable Market Value (as defined below) is greater than $16.82 (the
"Threshold Appreciation Price"), 2.97 shares of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than $14.25, the number of shares of Common
Stock per Purchase Contract equal to the Stated Amount divided by the Applicable
Market Value and (c) if the Applicable Market Value is less than $14.25, 3.51
shares of Common Stock per Purchase Contract, in each case subject to adjustment
as provided in the Purchase Contract Agreement. No fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Stock Purchase Date.
The "Closing Price" of the Common Stock on any date of determination
means the closing sale price (or, if no closing price is reported, the last
reported sale price) of the Common Stock on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation Bureau or
similar
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organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the- counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Purchase Contract evidenced hereby may be settled prior to the
Stock Purchase Date through Early Settlement or Merger Early Settlement, in
accordance with the terms of the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Normal Units Certificate shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby (i) by effecting an Early Settlement or Merger Early Settlement, (ii) by
application of payments received in respect of the Pledged Treasury
Consideration acquired from the proceeds of a remarketing of the related Pledged
Capital Securities underlying the Normal Units represented by this Normal Units
Certificate or (iii) if the Holder has elected not to participate in the
remarketing, by application of payments received in respect of the Pledged
Treasury Consideration deposited by such Holder in respect of such Purchase
Contract. If, as provided in the Purchase Contract Agreement, upon the
occurrence of a Failed Remarketing the Collateral Agent, for the benefit of the
Company, exercises its rights as a secured creditor with respect to the Pledged
Capital Securities related to this Normal Units Certificate, any accumulated and
unpaid distributions on such Pledged Capital Securities will become payable by
the Company to the Holder of this Normal Units Certificate in the manner
provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment in full of the aggregate Purchase
Price for the shares of Common Stock to be purchased thereunder in the manner
herein set forth.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Pledged
Capital Securities. Upon receipt of notice of any meeting at which holders of
Capital Securities are entitled to vote or upon the solicitation of consents,
waivers or proxies of holders of Capital Securities, the Agent shall, as soon as
practicable thereafter, mail to the Holders of Normal Units a notice (a)
containing such information as is contained in the notice or
X-0
00
xxxxxxxxxxxx, (x) stating that each such Holder on the record date set by the
Agent therefor (which, to the extent possible, shall be the same date as the
record date for determining the holders of Capital Securities entitled to vote)
shall be entitled to instruct the Agent as to the exercise of the voting rights
pertaining to the Pledged Capital Securities constituting a part of such
Holder's Normal Units and (c) stating the manner in which such instructions may
be given. Upon the written request of the Holders of Normal Units on such record
date, the Agent shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of Pledged Capital Securities as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of a Normal Unit, the Agent shall abstain from voting the Pledged Capital
Security evidenced by such Normal Unit.
Upon a voluntary or involuntary dissolution of the Trust, a principal
amount of the Debentures constituting the assets of the Trust and underlying the
Pledged Capital Securities equal to the aggregate Stated Amount of the Pledged
Capital Securities shall be delivered to the Collateral Agent in exchange for
Pledged Capital Securities. Thereafter, the Debentures shall be held by the
Collateral Agent to secure the obligations of each Holder of Normal Units to
purchase shares of Common Stock under the Purchase Contracts constituting a part
of such Normal Units. Following a voluntary or involuntary dissolution of the
Trust, the Holders and the Collateral Agent shall have such security interests,
rights and obligations with respect to the Debentures as the Holders and the
Collateral Agent had in respect of the Pledged Capital Securities, and any
reference in the Purchase Contract Agreement or Pledge Agreement to the Capital
Securities or Pledged Capital Securities shall be deemed to be a reference to
the Debentures.
The Normal Units Certificates are issuable only in registered form and
only in denominations of a single Normal Unit and any integral multiple thereof.
The transfer of any Normal Units Certificate will be registered and Normal Units
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Normal Units Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. The Holder of a Normal Unit may substitute for
the Pledged Capital Securities or Pledged Treasury Consideration securing its
obligations under the related Purchase Contract Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement. From and after such Collateral Substitution, the Unit for which such
Pledged Treasury Securities secures the Holder's obligation under the Purchase
Contract shall be referred to as a "Stripped Unit." A Holder that elects to
substitute a Treasury Security for Pledged Capital Securities or Pledged
Treasury Consideration, thereby creating Stripped Units, shall be responsible
for
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any fees or expenses payable in connection therewith. Except as provided in the
Purchase Contract Agreement, for so long as the Purchase Contract underlying a
Normal Unit remains in effect, such Normal Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Normal
Units in respect of the Pledged Capital Security or Pledged Treasury
Consideration, as the case may be, and Purchase Contract constituting such
Normal Unit may be transferred and exchanged only as a Normal Unit.
A Holder of Stripped Units may reestablish Normal Units by delivering
to the Collateral Agent Capital Securities or the appropriate Treasury
Consideration in exchange for the release of the Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Agent or the
Company, if, on or prior to the Stock Purchase Date, a Termination Event shall
have occurred. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Agent, the Collateral Agent and to the Holders, at their addresses
as they appear in the Normal Units Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Capital
Securities or Pledged Treasury Consideration, as the case may be, from the
Pledge in accordance with the provisions of the Pledge Agreement.
Upon registration of transfer of this Normal Units Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Normal Units
Certificate. The Company covenants and agrees, and the Holder, by its acceptance
hereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
The Holder of this Normal Units Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Normal Units evidenced hereby on his behalf as his
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
such Holder's obligations under such Purchase Contracts, consents to the
provisions of the Purchase Contract Agreement, authorizes the Agent to enter
into
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and perform the Pledge Agreement on such Holder's behalf as attorney-in-fact,
and consents to the Pledge of the Capital Securities or the appropriate Treasury
Consideration, as the case may be, underlying this Normal Units Certificate
pursuant to the Pledge Agreement. The Holder further covenants and agrees, that,
to the extent and in the manner provided in the Purchase Contract Agreement and
the Pledge Agreement, but subject to the terms thereof, payments in respect of
the Pledged Capital Securities or the Pledged Treasury Consideration, as the
case may be, to be paid upon settlement of such Holder's obligations to purchase
Common Stock under the Purchase Contract, shall be paid on the Stock Purchase
Date by the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
Each Holder of any Unit, and each Beneficial Owner thereof, by its
acceptance thereof or of its interest therein, further agrees to treat (i)
itself as the owner of the related Capital Securities, Treasury Consideration or
Treasury Securities, as the case may be, and (ii) the Debentures as indebtedness
of the Company, in each case, for United States federal, state and local income
and franchise tax purposes.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to its principles of conflicts of laws.
The Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Normal Units Certificate is
registered as the owner of the Normal Units evidenced hereby for the purpose of
receiving payments of distributions payable quarterly on the Capital Securities
or the Treasury Consideration, as the case may be, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any payments in
respect thereof be overdue and notwithstanding any notice to the contrary, and
neither the Company, the Agent, such Affiliates nor any such agent shall be
affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
___________________________________________
(cust) (minor)
Under Uniform Gifts to Minors Act
___________________________________________
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Normal Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
________________________________________________________________________________
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attorney to transfer said Normal Units Certificates on the books of
MetLife, Inc. with full power of substitution in the premises.
Dated:
------------------- --------------------------------------------
Signature
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Normal Units
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
Signature Guarantee:
---------------------------------------------------
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SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Stock Purchase Date of
the Purchase Contracts underlying the number of Normal Units evidenced by this
Normal Units Certificate be registered in the name of, and delivered, together
with a check in payment for any fractional share, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated:
------------------------ ---------------------------------------------
Signature
Signature Guarantee:
-------------------------
(if assigned to another person)
If shares are to be registered in the name
of and delivered to a Person other than the REGISTERED HOLDER
Holder, please (i) print such Person's name
and address and (ii) provide a guarantee of Please print name
your signature: and address of Registered Holder:
---------------------------------- ---------------------------------
Name Name
---------------------------------- ---------------------------------
Address Address
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
Social Security or other Taxpayer
Identification Number, if any
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ELECTION TO SETTLE EARLY
The undersigned Holder of this Normal Units Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Normal Units evidenced by this Normal Units
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Normal Units with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Normal Units Certificate representing any Normal Units evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Capital Securities or Pledged Treasury
Consideration, as the case may be, deliverable upon such Early Settlement will
be transferred in accordance with the transfer instructions set forth below. If
shares are to be registered in the name of a Person other than the undersigned,
the undersigned will pay any transfer tax payable incident thereto.
Dated: ________________________ _____________________________________
Signature
Signature Guarantee: ______________________________
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Number of Units evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock or Normal Units REGISTERED HOLDER
Certificates are to be registered in the
name of and delivered to, and Pledged
Capital Securities or Pledged Treasury
Consideration, as the case may be, are to be
transferred to, a Person other than the
Holder, please print such Person's name and Please print name and address
address: of Registered Holder:
---------------------------------- ---------------------------------
Name Name
---------------------------------- ---------------------------------
Address Address
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
Social Security or other Taxpayer
Identification Number, if any ---------------------------------
Transfer instructions for Pledged Capital Securities or Pledged Treasury
Consideration, as the case may be, transferable upon Early Settlement or a
Termination Event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
Stated Amount of
the Global
Amount of Amount of Certificate
decrease in Stated increase in Stated following such Signature of
Amount of the Amount of the decrease or authorized-officer
Date Global Certificate Global Certificate increase of Agent
---- ------------------ ------------------ ----------------- ------------------
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EXHIBIT B
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE
NAME OF A CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
Company or its agent for registration of transfer, exchange or payment, and any
Certificate issued is registered in the name of Cede & Co., or such other name
as requested by an authorized representative of The Depository Trust Company,
and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
No. Cusip No. 00000X000
Number of Stripped Units
Form of Face of Stripped Units Certificate
This Stripped Units Certificate certifies that Cede & Co. is the
registered Holder of the number of Stripped Units set forth above. Each Stripped
Unit represents (i) a 1/20 undivided beneficial ownership interest in a Treasury
Security, subject to the Pledge of such interest in such Treasury Security by
such Holder pursuant to the Pledge Agreement, and (ii) the rights and
obligations of the Holder under one Purchase Contract with MetLife, Inc., a
Delaware corporation (the "Company"). All capitalized terms used herein which
are defined in the Purchase Contract Agreement have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Treasury Security constituting
part of each Stripped Unit evidenced hereby has been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase Contract comprising a part of such Stripped Xxxx.
00
Xxxx Xxxxxxxx Contract evidenced hereby obligates the Holder of this
Stripped Units Certificate to purchase, and the Company to sell, on May 15, 2003
(the "Stock Purchase Date"), at a price equal to $50 (the "Stated Amount"), a
number of shares of common stock, $0.01 par value per share ("Common Stock"), of
the Company, equal to the Settlement Rate, unless on or prior to the Stock
Purchase Date there shall have occurred a Termination Event or an Early
Settlement or Merger Early Settlement with respect to the Stripped Units of
which such Purchase Contract is a part, all as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof. The Purchase Price (as
defined herein) for the shares of Common Stock purchased pursuant to each
Purchase Contract evidenced hereby, if not paid earlier, shall be paid on the
Stock Purchase Date by application of payments received in respect of the
Pledged Treasury Securities pledged to secure the obligations under such
Purchase Contract in accordance with the terms of the Pledge Agreement.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Stripped Units Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
METLIFE, INC.
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
B-2
87
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the Purchase
Contracts)
By: Bank One Trust Company, N.A.,
not individually but solely as Attorney-in-
Fact of such Holder
By:
-----------------------------------------
Name:
Title:
Dated:
B-3
88
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Stripped Units Certificates referred to in the
within-mentioned Purchase Contract Agreement.
BANK ONE TRUST COMPANY, N.A.,
as Purchase Contract Agent
By:
-----------------------------------------
Authorized officer
B-4
89
(Reverse of Stripped Units Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of April, 2000 (as may be supplemented from time to
time, the "Purchase Contract Agreement"), between the Company and Bank One Trust
Company, N.A., as Purchase Contract Agent (including its successors thereunder,
herein called the "Agent"), to which the Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, the Company and the Holders and of the terms upon which
the Stripped Units Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Stripped Units Certificate to purchase, and the Company to sell, on the Stock
Purchase Date at a price equal to the Stated Amount (the "Purchase Price"), a
number of shares of Common Stock of the Company equal to the Settlement Rate,
unless, on or prior to the Stock Purchase Date, there shall have occurred a
Termination Event or an Early Settlement or Merger Early Settlement with respect
to the Unit of which such Purchase Contract is a part. The "Settlement Rate" is
equal to (a) if the Applicable Market Value (as defined below) is greater than
$16.82 (the "Threshold Appreciation Price"), 2.97 shares of Common Stock per
Purchase Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than $14.25, the number of shares of Common
Stock per Purchase Contract equal to the Stated Amount divided by the Applicable
Market Value and (c) if the Applicable Market Value is less than $14.25, 3.51
shares of Common Stock per Purchase Contract, in each case subject to adjustment
as provided in the Purchase Contract Agreement. No fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Stock Purchase Date.
The "Closing Price" of the Common Stock on any date of determination
means the closing sale price (or, if no closing price is reported, the last
reported sale price) of the Common Stock on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation Bureau or
similar
B-5
90
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Purchase Contract evidenced hereby may be settled prior to the
Stock Purchase Date through Early Settlement or Merger Early Settlement, in
accordance with the terms of the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Stripped Units Certificate shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby (i) by effecting an Early Settlement or Merger Early Settlement or (ii)
by application of payments received in respect of the Pledged Treasury
Securities underlying the Stripped Units represented by this Stripped Units
Certificate.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment in full of the aggregate Purchase
Price for the shares of Common Stock to be purchased thereunder in the manner
herein set forth.
The Stripped Units Certificates are issuable only in registered form
and only in denominations of a single Stripped Unit and any integral multiple
thereof. The transfer of any Stripped Units Certificate will be registered and
Stripped Units Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Stripped Units Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The Holder of a Stripped
Unit may substitute for the Pledged Treasury Securities securing its obligations
under the related Purchase Contract Capital Securities or the appropriate
Treasury Consideration in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement. From and after such substitution, the Unit
for which such Pledged Capital Securities or Pledged Treasury Consideration
secures the Holder's obligation under the Purchase Contract shall be referred to
as a "Normal Unit." A Holder that elects to substitute Capital Securities or the
B-6
91
appropriate Treasury Consideration, as the case may be, for Pledged Treasury
Securities, thereby reestablishing Normal Units, shall be responsible for any
fees or expenses payable in connection therewith. Except as provided in the
Purchase Contract Agreement, for so long as the Purchase Contract underlying a
Stripped Unit remains in effect, such Stripped Unit shall not be separable into
its constituent parts, and the rights and obligations of the Holder of such
Stripped Unit in respect of the Pledged Treasury Security and the Purchase
Contract constituting such Stripped Unit may be transferred and exchanged only
as a Stripped Unit.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Agent or the
Company, if, on or prior to the Stock Purchase Date, a Termination Event shall
have occurred. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two business days thereafter give written
notice to the Agent, the Collateral Agent and to the Holders, at their addresses
as they appear in the Stripped Units Register. Upon and after the occurrence of
a Termination Event, the Collateral Agent shall release the Pledged Treasury
Securities from the Pledge in accordance with the provisions of the Pledge
Agreement.
Upon registration of transfer of this Stripped Units Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Stripped
Units Certificate. The Company covenants and agrees, and the Holder, by his
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Stripped Units Certificate, by his acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Stripped Units evidenced hereby on his behalf as
its attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
such Holder's obligations under such Purchase Contracts, consents to the
provisions of the Purchase Contract Agreement, authorizes the Agent to enter
into and perform the Pledge Agreement on such Holder's behalf as
attorney-in-fact, and consents to the Pledge of the Treasury Securities
underlying this Stripped Units Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase
B-7
92
Contract Agreement and the Pledge Agreement, but subject to the terms thereof,
payments in respect of the Pledged Treasury Securities, to be paid upon
settlement of such Holder's obligations to purchase Common Stock under the
Purchase Contract, shall be paid on the Stock Purchase Date by the Collateral
Agent to the Company in satisfaction of such Holder's obligations under such
Purchase Contract and such Holder shall acquire no right, title or interest in
such payments.
Each Holder of any Unit, and each Beneficial Owner thereof, by its
acceptance thereof or of its interest therein, further agrees to treat (i)
itself as the owner of the related Capital Securities, Treasury Consideration or
Treasury Securities, as the case may be, and (ii) the Debentures as indebtedness
of the Company, in each case, for United States federal, state and local income
and franchise tax purposes.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to its principles of conflicts of laws.
The Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Stripped Units Certificate
is registered as the owner of the Stripped Units evidenced hereby for the
purpose of performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent,
such Affiliate, nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
B-8
93
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
----------------------------------------------
(cust) (minor)
Under Uniform Gifts to Minors Act
----------------------------------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
---------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Stripped Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
--------------------------------------------------------------------------------
B-9
94
attorney to transfer said Stripped Units Certificates on the books of
MetLife, Inc. with full power of substitution in the premises.
Dated:
----------------- --------------------------------------------
Signature
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Stripped Units
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
Signature Guarantee:
-------------------------
B-10
95
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Stock Purchase Date of
the Purchase Contracts underlying the number of Stripped Units evidenced by this
Stripped Units Certificate be registered in the name of, and delivered, together
with a check in payment for any fractional share, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated:
--------------------------- -----------------------------------------
Signature
Signature Guarantee:
---------------------
If shares are to be registered in
the name of and delivered to a REGISTERED HOLDER
Person other than the Holder, please
(i) print such Person's name and
address and (ii) provide a guarantee
of your signature: Please print name and address of
Registered Holder:
---------------------------------- ---------------------------------
Name Name
---------------------------------- ---------------------------------
Address Address
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
Social Security or other Taxpayer
Identification Number, if any
B-11
96
ELECTION TO SETTLE EARLY
The undersigned Holder of this Stripped Units Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Stripped Units evidenced by this Stripped
Units Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Stripped Units with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Stripped Units Certificate representing any Stripped Units evidenced hereby as
to which Early Settlement of the related Purchase Contracts is not effected, to
the undersigned at the address indicated below unless a different name and
address have been indicated below. Pledged Treasury Securities deliverable upon
such Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated:
------------------------------ ---------------------------------------
Signature
Signature Guarantee:
--------------------------------
B-12
97
Number of Units evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock or Stripped Units REGISTERED HOLDER
Certificates are to be registered in the
name of and delivered to and Pledged
Treasury Securities are to be transferred to
a Person other than the Holder, please print
such Person's name and address:
Please print name and address of
Registered Holder:
---------------------------------- ---------------------------------
Name Name
---------------------------------- ---------------------------------
Address Address
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
---------------------------------- ---------------------------------
Social Security or other Taxpayer
Identification Number, if any ---------------------------------
Transfer instructions for Pledged Treasury Securities transferable upon Early
Settlement or a Termination Event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
B-13
98
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
Stated Amount of
the Global
Amount of Amount of Certificate
decrease in Stated increase in Stated following such Signature of
Amount of the Amount of the decrease or authorized officer
Date Global Certificate Global Certificate increase of Agent
---- ------------------ ------------------ ----------------- ------------------
B-14
99
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO
COLLATERAL AGENT
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Dealing and Trading Group
Re: Equity Security Units of MetLife, Inc. (the "Company"),
and MetLife Capital Trust I
We hereby notify you in accordance with Section 4.1 of the Pledge
Agreement, dated as of April 7, 2000, among the Company, yourselves, as
Collateral Agent, Custodial Agent and Securities Intermediary, and ourselves, as
Purchase Contract Agent and as attorney-in-fact for the holders of [Normal
Units] [Stripped Units] from time to time, that the holder of securities listed
below (the "Holder") has elected to substitute [$ _______ aggregate principal
amount of Treasury Securities (CUSIP No. _____)] [$_______ stated liquidation
amount of Capital Securities or the appropriate Treasury Consideration, as the
case may be,] in exchange for the related [Pledged Capital Securities or Pledged
Treasury Consideration, as the case may be (CUSIP No. ____),] [Pledged Treasury
Securities] held by you in accordance with the Pledge Agreement and has
delivered to us a notice stating that the Holder has transferred [Treasury
Securities] [Capital Securities or the appropriate Treasury Consideration, as
the case may be,] to you, as Collateral Agent. We hereby instruct you, upon
receipt of such [Pledged Treasury Securities] [Pledged Capital Securities or
Pledged Treasury Consideration, as the case may be], and upon the payment by
such Holder of any applicable fees, to release the [Capital Securities or
Treasury Consideration, as the case may be,] [Treasury Securities] related to
such [Normal Units] [Stripped Units] to us in accordance with the Holder's
instructions.
Date:_______________________
BANK ONE TRUST COMPANY, N.A.
By:_____________________________________
Name:
Title:
100
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Capital Securities or Pledged Treasury Consideration, as
the case may be,] for the [Pledged Capital Securities or Pledged Treasury
Consideration, as the case may be,] [Pledged Treasury Securities]:
_________________________________ ________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
_________________________________
Address
_________________________________
_________________________________
C-2
101
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
Bank One Trust Company, N.A.
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services Division
Re: Equity Security Units of MetLife, Inc. (the "Company"),
and MetLife Capital Trust I
The undersigned Holder hereby notifies you that it has delivered
to The Bank of New York, as Collateral Agent, Custodial Agent and Securities
Intermediary [$_________ aggregate principal amount of Treasury Securities]
[$_________ stated liquidation amount of Capital Securities or the appropriate
Treasury Consideration, as the case may be,] in exchange for the related
[Pledged Capital Securities or Pledged Treasury Consideration as the case may
be,] [Pledged Treasury Securities] held by the Collateral Agent, in accordance
with Section 4.1 of the Pledge Agreement, dated April 7, 2000, among you, the
Company and the Collateral Agent. The undersigned Holder has paid the Collateral
Agent all applicable fees relating to such exchange. The undersigned Holder
hereby instructs you to instruct the Collateral Agent to release to you on
behalf of the undersigned Holder the [Pledged Capital Securities or Pledged
Treasury Consideration, as the case may be,] [Pledged Treasury Securities]
related to such [Normal Units] [Stripped Units].
Date: __________________________ _________________________________________
By:______________________________________
Signature Guarantee:_____________________
Dated:
Please print name and address of Registered Holder:
_________________________________ _________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
_________________________________
_________________________________
_________________________________
102
EXHIBIT E
FORM OF REMARKETING AGREEMENT
D-2
103
METLIFE, INC
METLIFE CAPITAL TRUST I
8.00% Capital Security
of MetLife Capital Trust I
stated liquidation amount $50
------------
REMARKETING AGREEMENT
[DATE]
[NAME OF REMARKETING AGENT]
---------------------------
---------------------------
Ladies and Gentlemen:
[Name of Remarketing Agent], a _________________________________ (the
"Remarketing Agent"), is undertaking to remarket 8.00% Capital Securities
(stated liquidation amount $50 per Capital Security) (the "Capital Securities"),
issued by MetLife Capital Trust I, a statutory business trust formed under
Delaware law (the "Trust"), pursuant to the Purchase Contract Agreement between
MetLife, Inc., a Delaware corporation (the "Company") and Bank One Trust
Company, N.A., as purchase contract agent (the "Purchase Contract Agent"), dated
as of April 7, 2000 (the "Purchase Contract Agreement"). The Capital Securities
have been issued pursuant to and are governed by, the Declaration of Trust dated
as of March 3, 2000, among the Company, as the sponsor, The Bank of New York, as
property trustee (the "Property Trustee"), The Bank of New York (Delaware), as
the Delaware Trustee (the "Delaware Trustee"), the administrative trustees named
therein (the "Administrators") and the holders from time to time of the
beneficial interests in the assets of the Trust, as subsequently amended and
restated by the Amended and Restated Declaration of Trust dated as of April 7,
2000, among such parties (together, the "Declaration"). Each Capital Security
was issued as part of a unit (the "Unit") that initially also included a
contract (a "Purchase Contract") under which the holder will purchase from the
Company on May 15, 2003, a number of shares (the "Issuable Common stock") of
common stock, par value $0.01 per share, of the Company (the "Common Stock"),
equal to the Settlement Rate as set forth in the Purchase Contract Agreement. In
accordance with the terms of the Purchase Contract Agreement, the Capital
Securities constituting a part of the Units have been pledged by the
104
Purchase Contract Agent, on behalf of the holders of the Units, to The Bank of
New York, as collateral agent (the "Collateral Agent"), pursuant to the Pledge
Agreement, dated as of April 7, 2000 (the "Pledge Agreement"), among the
Company, the Purchase Contract Agent, the Collateral Agent and The Bank of New
York, as custodial agent (the "Custodial Agent") and securities intermediary
("Securities Intermediary"), to secure the holders' obligation to purchase
Common Stock under the Purchase Contracts. The Capital Securities are guaranteed
by the Company on a senior unsecured basis, subject to certain restrictions (the
"Guarantee"). The Units were offered and sold in connection with the
reorganization of Metropolitan Life Insurance Company ("MetLife"), a mutual life
insurance company organized under the laws of the State of New York, into a
stock life insurance company in a demutualization process (the
"Demutualization").
The proceeds of the sale of the Capital Securities and the common
securities of the Trust (the "Common Securities" and together with the Capital
Securities, the "Trust Securities") have been invested by the Trust in 8.00%
Senior Debentures due May 15, 2005 of the Company (the "Debentures") issued
pursuant to an Indenture dated as of April 7, 2000 (the "Base Indenture"),
between the Company and The Bank of New York, as trustee (the "Debenture
Trustee"), as supplemented by the First Supplemental Indenture, dated as of
April 7, 2000 ("Supplemental Indenture No. 1," and, together with the Base
Indenture and all other amendments and supplements thereto in effect on the date
hereof, the "Indenture"), between the Company and the Debenture Trustee.
Capitalized terms used and not defined in this Agreement shall have
the meanings set forth in the Purchase Contract Agreement, the Pledge Agreement,
the Indenture and the Underwriting Agreement between the Company, the Trust,
MetLife and the several underwriters listed therein, dated as of April 4, 2000,
entered into in connection with the initial public offering of the Units (the
"Underwriting Agreement"), as the case may be.
The Remarketing (as defined below) of the Capital Securities is
provided for in the Purchase Contract Agreement. As used in this Agreement,
"Transaction Documents" shall mean, collectively, the Purchase Contract
Agreement, the Guarantee Agreements, the Declaration, the Indenture, the Pledge
Agreement and this Agreement; the term "Remarketed Capital Securities" means the
Capital Securities subject to the Remarketing as notified to the Remarketing
Agent by the Purchase Contract Agent and the Custodial Agent, on or prior to the
first Business Day prior to the Remarketing Date; the term "Remarketing
Procedures" means the procedures in connection with the Remarketing of the
Capital Securities, described in the Purchase Contract Agreement, the Pledge
Agreement and the Declaration, as the case may be; the term "Remarketing" means
the remarketing of the Remarketed Capital Securities pursuant to the Remarketing
Procedures, the term "Remarketing Date" means the third Business Date
immediately preceding February 15, 2003; and the term "Instruments" means the
Remarketed Capital Securities, the Purchase Contracts, the Trust Securities, the
Units, the Debentures, the Issuable Common Stock, the Guarantees and the Capital
Notes. Unless the context otherwise requires, following a Dissolution Event, all
references herein to the Capital Securities, shall be deemed to refer to the
Debentures.
2
105
Section 1. Appointment and Obligations of the Remarketing Agent. (a)
The Company and the Trust (the "Issuers") hereby appoint ______________ as
exclusive Remarketing Agent and Reset Agent, and ________________ hereby accepts
appointment as Remarketing Agent, for the purpose of (i) Remarketing Remarketed
Capital Securities on behalf of the holders thereof and (ii) performing such
other duties as are assigned to the Remarketing Agent and Reset Agent in the
Remarketing Procedures and the Declaration, all in accordance with the pursuant
to the Remarketing Procedures and the Declaration.
(b) The Remarketing Agent agrees (i) to use commercially
reasonable best efforts to remarket the Remarketed Capital Securities
tendered or deemed tendered to the Remarketing Agent in the Remarketing,
(ii) to notify the Issuers, the Depositary and the Debenture Trustee
promptly of the Reset Rate in accordance with the Declaration and (iii) to
establish the Reset Rate and carry out such other duties as are assigned to
the Remarketing Agent and Reset Agent in the Remarketing Procedures, all in
accordance with the provisions of the Remarketing Procedures and the
Declaration.
(c) On the Remarketing Date, the Remarketing Agent shall use its
reasonable best efforts to remarket, at a price equal to 100.50% of the
Remarketing Value, the Remarketed Capital Securities tendered or deemed
tendered for purchase.
(d) If, as a result of the efforts described in Section 1(b), the
Remarketing Agent determines that it will be able to remarket all
Remarketed Capital Securities tendered or deemed tendered for purchase at a
price of 100.50% of the Remarketing Value prior to 4:00 P.M., New York City
time, on the Remarketing Date, the Remarketing Agent shall (i) determine
the Reset Rate (as defined in the Declaration), that will enable it to
remarket all Remarketed Capital Securities tendered or deemed tendered for
Remarketing and (ii) commit to purchase, on a third-day settlement basis,
and on the third Business Day following the Remarketing Date (the
"Remarketing Closing Date"), shall purchase, the Agent-purchased Treasury
Consideration.
(e) If the Remarketing Agent cannot remarket the Capital
Securities on the Remarketing Date, the Remarketing Agent will continue to
attempt to remarket the Capital Securities until the Stock Purchase Date in
accordance with the Remarketing Procedures (each such remarketing, the
"Subsequent Remarketing"), provided that (i) the notice of any Subsequent
Remarketing cannot be given until the Failed Remarketing notice has been
published in accordance with the Remarketing Procedures in respect of any
immediately proceeding Failed Remarketing and (ii) the Remarketing Closing
Date in respect of any Subsequent Remarketing must fall no later than on
the Business Day immediately preceding the Stock Purchase Date.
(f) If, by 4:00 P.M., New York City time, on a Remarketing Date
(including a Remarketing Date of any Subsequent Remarketing), the
Remarketing
3
106
Agent is unable to remarket all Remarketed Capital securities tendered or
deemed tendered for purchase, a failed Remarketing ("Failed Remarketing") shall
be deemed to have occurred, and the Remarketing Agent shall, on such date, so
advise by telephone the Purchase Contract Agent, the Debenture Trustee, the
Issuers, the Collateral Agent and the Property Trustee.
(g) On the third Business Day following the Failed Remarketing, the
Remarketing Agent shall remit (i) to the Collateral Agent the Remarketed
Capital Securities comprised of the Separate Capital Securities, and (ii) to
the Custodial Agent the balance of the Remarketed Capital Securities.
(h) By approximately 4:30 P.M., New York City time, on the Remarketing
Date, provided that there has not been a Failed Remarketing, the Remarketing
Agent shall advise, by telephone the Issuers, the Purchase Contract Agent, the
Depositary and the Debenture Trustee, of the Reset Rate determined in the
Remarketing and the number of Remarketed Capital Securities sold in the
Remarketing.
(i) In accordance with the Depositary's normal procedures, on the
Remarketing Closing Date, the transactions described above with respect to each
Capital Security tendered for purchase and sold in the Remarketing shall be
executed through the Depositary, and the accounts of the respective Depositary
participants shall be debited and credited and such Capital Securities
delivered by book-entry as necessary to effect purchases and sales of such
Capital Securities.
(j) On the Remarketing Closing Date, the tender and settlement procedures
set in this Section 1, including provisions for payment by purchasers of the
Capital Securities in the Remarketing, shall be subject to modification to the
extent required by the Depositary or if the book-entry system is no longer
available for the Capital Securities at the time of the Remarketing, to
facilitate the tendering and remarketing of the Capital Securities in
certificated form. In addition, the Remarketing Agent may modify the settlement
procedures set forth herein in order to facilitate the settlement process.
(k) On the Remarketing Closing Date, the Remarketing Agent shall remit to
the Collateral Agent through the Purchase Contract Agent and Agent-purchased
Treasury Consideration.
(l) On the Remarketing Closing Date, the Remarketing Agent shall retain
as a remarketing fee an amount not exceeding 25 basis points (.25%) of the
total proceeds from the sale of the Remarketed Capital Securities and shall
remit (i) the portion of the balance attributable to the Separate Capital
Securities to the holders of the Separate Capital Securities that were
remarketed and (ii) the remaining portion of the balance to the Purchase
Contract Agent for distribution to
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the holders of the Remarketed Capital Securities in accordance with
the Purchase Contract Agreement.
Section 2. Representations, Warranties and Agreements of the
Issuers. The Issuers jointly and severally represent, warrant and agree (i) on
and as of the date hereof, (ii) on and as of the date the Prospectus or other
Remarketing Materials (each as defined in Section 2(a) below) are first
distributed in connection with the Remarketing (the "Commencement Date"), and
(iii) on and as of the Remarketing Date, that:
(a) A registration statement on Form S-[ ], if required to be
filed in connection with the Remarketing, has been prepared by the
Issuers in conformity with the requirements of the Securities Act and
the rules and regulations of the Securities and Exchange Commission
(the "Commission") (the "Rules and Regulations") and filed with the
Commission under the Securities Act. Copies of such registration
statement or registration statements each in the form heretofore
delivered to the Remarketing Agent, have been declared effective by
the Commission in such form. As used in this Agreement, "Effective
Time" means the date and time as of which the last of such
registration statements that have become effective or may be filed,
or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Effective Date" means the date
of the Effective Time of such last registration statement;
Preliminary Prospectus means each prospectus included in such last
registration statement, or amendment thereto, before it became
effective under the Securities Act and any prospectus filed by the
Issuers with consent of the Remarketing Agent pursuant to Rule 424(a)
of the Rules and Regulations; "Registration Statement" means such
last registration statement, as amended at its Effective Time,
including documents incorporated by reference therein at such time
and, if applicable, all information contained in the final prospectus
filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations, including any information deemed to be part of such
Registration Statement as of the Effective Time pursuant to
paragraph(b) of Rule 430A of the Rules and Regulations; and
"Prospectus" means such final prospectus, as first filed pursuant to
Rule 424(b) of the Rules and Regulations. Reference made herein to
any Preliminary Prospectus, the Prospectus or any other information
furnished by the Issuers to the Remarketing Agent for distribution to
investors in connection with the Remarketing (the "Remarketing
Materials") shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act as of the date of such Preliminary
Prospectus or the Prospectus, as the case may be, or, in the case of
Remarketing Materials, referred to as incorporated by reference
therein, and any reference to any amendment or supplement to any
Preliminary Prospectus, the Prospectus or the Remarketing Materials
shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after the date of such Preliminary Prospectus or the Prospectus
incorporated by reference therein pursuant to Item 12 of Form S-3 or,
if so incorporated, the Remarketing Materials, as the case may be;
and any reference to any amendment to the Registration Statement
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shall be deemed to include any annual report of the Company or the Trust filed
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after
the Effective Time that is incorporated by reference in the Registration
Statement. IN THE EVENT THAT A REGISTRATION STATEMENT IS NOT REQUIRED INSERT THE
FOLLOWING: The Company has provided to the Remarketing Agent, for use in
connection with remarketing of the Capital Securities, a preliminary remarketing
memorandum and remarketing memorandum [AND, DESCRIBE OTHER MATERIALS IF ANY].
Such remarketing memorandum (including the documents incorporated or deemed
incorporated by reference therein, [AND DESCRIBE OTHER MATERIALS] are hereafter
called, collectively, the "Prospectus," and such preliminary marketing
memorandum (including the documents incorporated or deemed incorporated by
reference therein) is hereafter called a "Preliminary Prospectus"). The
Company hereby consents to the use of the Prospectus and the Preliminary
Prospectus in connection with the Remarketing.
(b) The Registration Statement conforms, the Prospectus, the Preliminary
Prospectus and the Remarketing Materials, and any further amendments or
supplements to the Registration Statement, the Prospectus or the Remarketing
Materials will conform, in all material respects to the requirements of the Act
and the Rules and Regulations and the Registration Statement, the Prospectus
and the Remarketing Materials do not and will not, as of the Effective Date (as
to the Registration Statement and any amendment thereto), as of the applicable
filing date (as to the Prospectus and any amendment or supplement thereto) and
as of the Commencement Date, the Remarketing Date and the Remarketing Closing
Date contain any 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; provided that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Remarketing Agent expressly for use therein; the Purchase Contract Agreement,
the Declaration and the Indenture each conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the applicable rules and regulations thereunder; and the
Commission has not issued any order preventing or suspending the use of the
effectiveness or Registration Statement, any Preliminary Prospectus, the
Prospectus or the Remarketing Materials.
(c) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents, as of their respective effective or
filing dates, 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; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents
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become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder
and will not, as of their respective effective or filing dates, 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;
provided, however, that this representation and warranty shall apply only to
documents so filed and incorporated by reference during the period that a
prospectus relating to the Units is required to be delivered in connection with
sales of such Units by any underwriters (such period being hereinafter
sometimes referred to as the "prospectus delivery period"), and provided
further, that this representation and warranty shall not apply to any statements
or omissions make in reliance upon and in conformity with information furnished
in writing to the Company by the Remarketing Agent expressly for use therein.
(d) Neither the Trust, the Company, MetLife nor any of the subsidiaries of
MetLife and the Company listed on Exhibit A hereto (the "Significant
Subsidiaries" and, individually, a "Significant Subsidiary") has sustained since
the date of the latest audited financial statements included in the Prospectus
or any Remarketing Materials any loss or interference material to the business
of the Trust or of the Company, MetLife and the Significant Subsidiaries
considered as a whole, other than as described in or contemplated by the
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, the Prospectus or the Remarketing
Materials, there has not been any (i) material addition, or development
involving a prospective material addition, to MetLife's 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 of
the Trust, the Company, MetLife or any Significant Subsidiary or any material
increase in the long-term debt of the Trust or of the Company or of MetLife and
its subsidiaries considered as a whole, or (iii) material adverse change, or
development involving a prospective material adverse change, in or affecting the
business, financial position, reserves, surplus, equity or results of operations
(in each case considered either on a statutory accounting or U.S. generally
accepted accounting principles ("GAAP") basis, as applicable) of the Trust or of
the Company, MetLife and their respective subsidiaries considered as a whole,
otherwise than as described or contemplated in the Prospectus and the
Remarketing Materials;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus and the Remarketing Materials; MetLife
has been duly incorporated and validly existing as a stock life insurance
company in
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good standing under the laws of the State of New York, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus and the Remarketing Materials; at the Commencement
Date, the Remarketing Date and the Remarketing Closing Date, MetLife will be
duly incorporated and validly existing as a stock life insurance company in
good standing under the laws of the State of New York and will be a subsidiary
of the Company; each of the Company and MetLife 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 and MetLife that are material to the Company and
MetLife considered as a whole which are not listed on Exhibit A hereto; and
each Significant Subsidiary has been duly organized and is validly existing as
a corporation or partnership, as applicable, and, to the extent such concept is
applicable, is in good standing under the laws of its jurisdiction of
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and the
Remarketing Materials; and each Significant Subsidiary is duly qualified to do
business as a foreign corporation or partnership, as applicable, for the
transaction of business and, to the extent such concept is applicable, 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;
(f) The Trust has been duly created and is validly existing as a business
trust in good standing under the Trust Act, with power and authority (trust and
other) to own its properties and conduct its business as described in or
contemplated by the Prospectus and the Remarketing Materials and to enter into
and perform its obligations under this Agreement, the Declaration and the Trust
Securities; the Trust is qualified to transact business as a foreign entity and
is in good standing in each jurisdiction in which such qualification is
necessary, except where the failure to so qualify or be in good standing would
not have a Material Adverse Effect; the Trust has conducted, is conducting and
will conduct no business other than the transactions described in or
contemplated by this Agreement, the Trust Securities and the Declaration and as
described in the Prospectus; and all filings required under the Trust Act with
respect to the creation and valid existence of the Trust as a Delaware business
trust have been made (and are in full force and effect) and all such filings
will continue to be made. The Trust is not a party to or otherwise bound by
any agreement or instrument other than those described in the Prospectus the
Trust has no liabilities or obligations other than those arising out of the
transactions described in or contemplated by the Transaction Documents or the
Prospectus;
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(g) The Company has an authorized capitalization as set forth and
described in the Prospectus and the Remarketing Materials; MetLife has an
authorized capitalization of shares of common stock, par value
$ ; 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
Prospectus and the Remarketing Materials and the exhibits thereto and excepts
for directors' qualifying shares) are owned directly or indirectly by the
Company or MetLife, as applicable, free and clear of all liens, encumbrances,
equities or claims; The shares of the Issuable Common Stock have been duly and
validly authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contracts, the Purchase Contract
Agreement and the Pledge Agreement, will be duly and validly issued, fully paid
and nonassessable and will conform to the description of the Common Stock
contained in the Prospectus and the Remarketing Materials or to any amended or
supplemented description of the Common Stock contained in a then effective
report or registration statement filed pursuant to the Exchange Act; and the
issuance of the Issuable Common Stock is not subject to any preemptive or
similar rights;
(h) The Declaration has been duly authorized by the Company and, at the
Commencement Date, Remarketing Date and the Remarketing Closing Date, will be
duly executed and delivered by the Company and the Administrators and the
Declaration, assuming due authorization, execution and delivery of the
Declaration by the Property Trustee and the Delaware Trustee, is and will, at
each such date, be a valid and binding obligation of the Company and the
Administrators enforceable against the Company and the Administrators in
accordance with its terms, except to the extent that enforceability thereof may
be limited by bankruptcy, reorganization, rehabilitation, liquidation,
insolvency, moratorium or other similar laws affecting creditors' rights
generally or by general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the "Bankruptcy
Exceptions"); the Declaration conforms to the description thereof contained in
the Prospectus and the Remarketing Materials; and each of the Administrators
is an employee of the Company;
(i) The Remarketing, the issuance and sale of the Instruments, the entry
into and the compliance by the Trust, the Company and MetLife with all of the
provisions of the Transaction Documents and the consummation of the
transactions herein and therein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Trust, the Company, MetLife or any of
their respective subsidiaries is a party or by which the Trust, the Company,
MetLife or any of their respective subsidiaries is bound or to which any of the
property or assets of the Trust, the Company, MetLife or any of their
respective subsidiaries is subject, or with affects the validity, performance
or consummation of the Instruments, the Remarketing or
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the transactions contemplated by the Transaction Documents nor will such actions
result in any violation of the provisions of the amended and restated
certificate of incorporation or amended and restated by-laws or similar
organizations documents of the Company, MetLife or any Significant Subsidiary,
the Declaration or any other organizational document of the Trust or any statute
or any order, rule or regulation of any court or insurance regulatory agency or
other governmental agency or body having jurisdiction over the Trust, the
Company, MetLife or any of their respective subsidiaries or any of their
properties, in each case the effect of which (other than a violation of the
amended and restated certificate of incorporation, amended and restated by-laws
or similar organizational documents of the Company, MetLife or a Significant
Subsidiary, or of the Declaration or other organizational document of the Trust)
individually or in the aggregate, would be either to affect the validity of the
Instruments or their respective issuance or the validity of the Transaction
Documents or tho adversely affect the consummation of the Remarketing or other
transactions contemplated by the Transaction Documents or to have a Material
Adverse Effect;
(j) No consent, approval, authorization, order, registration or
qualification of or with any such court of governmental agency having authority
over the Company or the Trust is required for the entry into this Agreement by
the Company and the Trust, the performance of the Guarantees by the Company,
the compliance by the Company and the Trust with all of the provisions of this
Agreement and each Transaction Document to which the Company and the Trust is a
party, the compliance by the Company and the Trust with the terms of the
Instruments, and the consummation of the transactions herein or therein
contemplated by the Company and the Trust, the registration under the Act of
the Capital Securities; [except such consents as have been obtained under the
Act, the Exchange Act and the Trust Indenture Act in connection with the
Remarketing pursuant to this Agreement];
(k) The Declaration, the Indenture and the Capital Securities Guarantee
Agreement have been duly qualified under the Trust Indenture Act;
(l) The Units have been duly and validly authorized and are validly
issued and fully paid and non-assessable and conform to the description thereof
contained in the Prospectus and the Remarketing Materials; and the Units are
not subject to preemptive or other similar rights;
(m) The Trust Securities have been duly and validly authorized by the
Trust, are duly and validly issued, fully paid and nonassessable divided
beneficial interest in the assets of the Trust, conform to the description
thereof contained in the Prospectus and the Remarketing Materials and are valid
and binding obligations of the Trust and entitle the holders thereof to the
benefits of the Declaration and this Agreement, except to the extent that the
enforceability of the Declaration and this Agreement may be limited by the
Bankruptcy Exceptions; the Trust Securities are not subject to any preemptive or
other similar rights; the Trust
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Securities have the rights set forth in the Declaration; the holders of the
Trust Securities are entitled to the same limitation of personal liability as
that extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware (the "DGCL"); all of
the issued and outstanding Common Securities are directly owned by the Company
free and clear of all liens, encumbrances, security interests, equities or
claims; and the Trust Securities are the only interests authorized to be issued
by the Trust;
(n) The Purchase Contract Agreement has been duly authorized and
validly executed and delivered by the Company and, assuming due authorization
and valid execution and delivery by the Purchase Contract Agent, constitutes
constitute a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent that
enforceability thereof may be limited by the Bankruptcy Exceptions; and the
Purchase Contract Agreement conforms in all material respects to the
description thereof contained in the Prospectus and the Remarketing Materials;
(o) The Purchase Contracts underlying the Units have been duly and
validly authorized, issued and delivered by the Company and constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms except to the extent that enforceability thereof may
be limited by the Bankruptcy Exceptions, and the Purchase Contracts conform in
all material respects to the description thereof contained in the Prospectus and
the Remarketing Materials; the Purchase Contracts are not subject to any
preemptive or similar rights;
(p) This Agreement has been duly authorized by the Trust and the
Company and, at the date hereof and at the Remarketing Date, the Commencement
Date and the Remarketing Date, will have been duly executed and delivered by
the Company and the Trust; and this Agreement conforms in all material respects
to the description contained in the Prospectus and the Remarketing Materials;
(q) Each of the Guarantee Agreements and the Guarantees has been
authorized and validly executed and delivered by the Company and, assuming due
authorization, execution and delivery of the Capital Securities Guarantee
Agreement by the Guarantee Trustee, constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms
except to the extent that enforceability thereof may be limited by the
Bankruptcy Exceptions, and each of the Guarantees and the Guarantee Agreements
conforms in all material respects to the description thereof contained in the
Prospectus and the Remarketing Materials;
(r) The Pledge Agreement has been authorized by the Company and
validly executed and delivered by the Company and, assuming due execution and
delivery by the other parties thereto, constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms
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except to the extent that enforceability thereof may be limited by the
Bankruptcy Exceptions; the Pledge Agreement conforms to the description thereof
contained in the Prospectus and the Remarketing Materials;
(s) The Pledge Agreement creates, as collateral security for the
performance when due by the holders under the respective Purchase Contracts, a
legal and valid security interest (as defined in the New York UCC) in favor of
the Collateral Agent for the benefit of the Company, in the right, title and
interest of such holders in the securities and other assets and interests
pledged to the Collateral Agent pursuant to the Pledge Agreement (the "Pledged
Securities");
(t) The Indenture has been duly authorized and validly executed by the
Company and, assuming due execution and delivery by the Debenture Trustee,
constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms except to the extent the enforceability
thereof may be limited by the Bankruptcy Exceptions; and the Indenture conforms
in all material respects to the description thereof contained in the Prospectus
and the Remarketing Materials;
(u) The Debentures have been duly authorized, executed and delivered by
the Company and, assuming due authentication of the Debentures, constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms except to the extent that enforceability thereof may
be limited by the Bankruptcy Exceptions, and are in the form contemplated by,
and are entitled to the benefits of, the Indenture and conform in all material
respects to the description thereof contained in the Prospectus and the
Remarketing Materials;
(v) The Units and the Issuable Common Stock have been approved for listing
on the Exchange, with respect to the Issuable Common Stock, subject to notice of
issuance, and the Units are, and the Issuable Common Stock, upon notice of
issuance, will be listed on the Exchange;
(w) Each of MetLife and each Significant Subsidiary that is required to be
organized or licensed as an insurance company in its jurisdiction of
incorporation (an "Insurance Subsidiary") and is duly organized and licensed as
an incorporation (an "Insurance Subsidiary") and 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 Prospectus and the
Remarketing Materials, each of MetLife and 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
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aggregate, a Material Adverse Effect; there is no pending or, to the knowledge
of the Company, MetLife and the Trust, 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 and the Trust, no
insurance regulatory agency or body has issued any order to 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) Each of the Company, MetLife 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 Prospectus and the Remarketing
Materials, 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 and the Trust, each of the Company,
MetLife, the Trust 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, MetLife, the Trust 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, MetLife, the Trust or any Significant
Subsidiary, except as described in the Prospectus and the Remarketing Materials
or except for any such suspension, revocation or limitation which would not
have, individually or in the aggregate, a Material Adverse Effect;
(y) Each of MetLife and 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;
(z) Each Significant Subsidiary of MetLife which is engaged in the
business of acting as a broker-dealer or an investment advisor (respectively,
"Broker-Dealer Subsidiary" and "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
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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 Prospectus and the Remarketing Materials, none of the
Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries has received any
notification from any applicable regulatory authority to the effect that any
additional Approvals from such regulatory authority are needed to be obtained by
such Subsidiary in any case where it could be reasonably expected that (x) any
of the Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries would in
fact be required either to obtain any such additional Approvals or cease or
otherwise limit engaging in certain business and (y) the failure to have such
Approvals or limiting such business would have a Material Adverse Effect; and
each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary is in
compliance with the requirements of the broker-dealer and investment advisor
laws and regulations of each jurisdiction which are applicable to such
Subsidiary; and has filed all notices, reports, documents or other information
required to be filed hereunder, in each case with such exceptions as would not
have, individually or in the aggregate, a Material Adverse Effect;
(aa) All Filings and Approvals of or with any court, insurance
regulatory agency or governmental agency or body of the United States or any
state thereof required in connection with the issuance and sale of the
Instruments, the entry into and the compliance by the Trust, the Company and
MetLife with all provisions of the Transaction Documents, and the consummation
of the transactions herein contemplated have been made or obtained and all such
Filings and Approvals are in full force and effect, provided that neither the
Trust, the Company nor MetLife makes any representation or warranty as to state
securities or Blue Sky laws or state insurance securities laws in connection
with the purchase and distribution of the Instruments; and all other Filings and
Approvals of or with any court, insurance regulatory agency or other
governmental agency or body required to be obtained or made on or prior to the
Plan Effective Date in connection with the Demutualization or for the
consummation by the Trust, the Company and MetLife of the transactions
contemplated by the Transaction Documents have been so obtained or made and are
in full force and effect, except as described in the Prospectus and the
Remarketing Materials or to the extent that the failure to obtain or make any
such Filings and Approvals would not have, individually or in the aggregate, a
Material Adverse Effect and would not adversely affect the validity,
performance of or consummation of the Remarketing, the Instruments or the
transactions contemplated by the Transaction Documents, and no Filings and
Approvals with regard to the matters referenced in this paragraph (aa) are
required to be made or obtained by any Significant Subsidiary;
(bb) Other than as described or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Trust, the
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Company, MetLife or any of their respective subsidiaries is a party or to which
any property of the Trust, the Company, MetLife or any of their respective
subsidiaries is subject which, if determined adversely to the Trust the
Company, MetLife or any of their respective subsidiaries, could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
and, to the knowledge of the Turst, the Company and MetLife, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
(cc) The Trust is and will be treated as a consolidated subsidiary of the
Company pursuant to GAAP;
(dd) The Trust is not and, at the Commencement Date and the Remarketing
Date will not be, in violation of the Declaration; neither the Company, MetLife
nor any Significant Subsidiary is in violation of its amended and restated
certificate of incorporation or amended and restated by-laws or other
organizational instruments; and neither the Trust, the Company, MetLife or any
Significant Subsidiary is 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;
(ee) [ ], who have certified certain financial statements of
the Company and the consolidated financial statements of MetLife and its
subsidiaries, are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(ff) Neither the Trust, the Company, MetLife nor any Significant Subsidiary
is or, after giving effect to this Agreement and the consummation of the
transactions contemplated herein or in the Remarketing Procedures, will be an
"investment company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), and the rules and regulations
thereunder, although certain separate accounts of MetLife and certain Insurance
Subsidiaries are required to register as investment companies under the
Investment Company Act;
(gg) The statements set forth in the Prospectus and the Remarketing
Materials under the caption "United States Federal Income Tax Consequences"
and insofar as they purport to constitute summaries of matters
of United States federal tax law and and regulations or legal
conclusions with respect thereto, constitute accurate summaries of the matters
described therein in all material respects; and any other statements with
respect to matters of law and regulations or legal conclusions with respect
thereto set forth in the Prospectus and the Remarketing Materials are accurate
in all material respects;
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(hh) This Agreement has been duly and validly authorized,
executed and delivered by the Trust and the Company; and
(ii) The 8.00% Capital Notes due 2005 (the "Capital
Notes") have been duly authorized and executed by MetLife and
delivered to the Company and constitute valid and legally binding
obligations of MetLife, enforceable against MetLife in accordance with
their respective terms, except to the extent that enforceability may
be limited by the Bankruptcy Exceptions; and the Capital Notes conform
in all material respects to the description thereof in the Prospectus
and the Remarketing Materials, as amended or supplemented.
Section 3. Fees and Expenses. Each of the Company and the Trust,
severally and jointly, covenants and agrees with the Remarketing Agent that the
Company and the Trust will pay or cause to be paid the following: (i) the costs
incident to the preparation and printing of the Registration Statement,
Prospectus and any Remarketing Materials and any amendments or supplements
thereto; (ii) the costs of distributing the Registration Statement, Prospectus
and any Remarketing Materials and any amendments or supplements thereto; (iii)
any fees and expenses of qualifying the Remarketed Capital Securities under the
securities laws of the several jurisdictions as provided in Section 4(f) and of
preparing, printing and distributing a Blue Sky memorandum (including related
fees and expenses of counsel to the Remarketing Agent); and (iv) all other costs
and expenses incident to the performance of the obligations of the Company and
the Trust hereunder.
Section 4. Further Agreements of the Issuers. The Company and the
Trust, jointly and severally, agree to use their reasonable best efforts:
(a) To prepare any registration statement or prospectus, or
if none is required, a remarketing memorandum, including any
preliminary remarketing memorandum, in each case, in a form approved
by the Remarketing Agent, in connection with the Remarketing, and to
file any such prospectus pursuant to the Securities Act within the
period required by the Rules and Regulations; to make no further
amendment or any supplement to the Registration Statement, Prospectus
or the Remarketing Materials which shall be reasonably disapproved by
the Remarketing Agent promptly after reasonably notice thereof; to
advise the Remarketing Agent, promptly after either of them receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus (or the Remarketing Materials) or any amended Prospectus
(or the Remarketing Materials) has been filed and to furnish the
Remarketing Agent 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 subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required
in connection with the offering or sale of Remarketed Capital
Securities; to advise the Remarketing Agent, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order
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preventing or suspending the use of the Prospectus or the Remarketing
Materials, of the suspension of the qualification of the Remarketed Capital
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement, the
Prospectus or the Remarketing Materials 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 any Prospectus or the Remarketing Materials or suspending
any such qualification, to use promptly its best efforts to obtain the
withdrawal of such order.
(b) To furnish promptly to the Remarketing Agent and to counsel for the
Remarketing Agent a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
(c) Prior to 10:00 a.m. New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to deliver
promptly to the Remarketing Agent in New York City such number of the following
documents as the Remarketing Agent shall request: (i) conformed copies of the
Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this Agreement,
the Declaration, the Purchase Contract Agreement and the Indenture, (ii) the
Prospectus (or the Remarketing Materials) and any amended or supplemented
Prospectus (or the Remarketing Materials), (iii) any document incorporated by
reference in the Prospectus and the Remarketing Materials (excluding exhibits
thereto) and (iv) any Remarketing Materials; and, if the delivery of a
prospectus is required at any time in connection with the Remarketing and if at
such time any event shall have occurred as a result of which the Prospectus or
the Remarketing Materials as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus or the Remarketing Materials, as
applicable, is delivered, not misleading, or if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus and the
Remarketing Materials or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities act or the Exchange Act, to notify the Remarketing Agent and, upon
its request, to file such document and to prepare and furnish without charge to
the Remarketing Agent and to any dealer in securities as many copies as the
Remarketing Agent may from time to time request of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance.
(d) To file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may, in
the judgment of the Company or the Remarketing Agent, be required by the
Securities Act or requested by the Commission.
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(e) Prior to filing with the Commission (i) any amendment to
the Registration Statement or supplement to the Prospectus or any document
incorporated by reference in the Prospectus or (ii) any Prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the
Remarketing Agent and counsel for the Remarketing Agent; and not to file
any such amendment or supplement which shall be disapproved by the
Remarketing Agent promptly by reasonable notice.
(f) To make generally available to securityholders of the
Company and of the Trust and to deliver to the Remarketing Agent, 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 (including, at the option of the Company, Rule 158);
as soon as practicable after the Effective Date of the Registration
Statement to make generally available to the Company's securityholders and
to deliver to the Remarketing Agent an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158).
(g) Promptly from time to time to take such action as the
Remarketing Agent may reasonably request to qualify the Remarketed Capital
Securities and the obligations of the Company under the Guarantees for
offering and sale under the securities laws of such jurisdictions as the
Remarketing Agent may reasonably request and to comply with such laws so as
to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the Capital Securities; provided that in connection therewith, neither
the Company nor the Trust shall be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
Section 5. Conditions to the Remarketing Agent's Obligations. The
obligations of the Remarketing Agent hereunder are subject to the accuracy, on
and as of the date when made, of the representations and warranties of the
Issuers contained herein, to the performance by the Issuers of their respective
obligations hereunder, and to each of the following additional terms and
conditions. The Remarketing Agent may in its sole discretion waive on its behalf
compliance with any conditions to the obligations of the Remarketing Agent
hereunder.
(a) If filing of a Prospectus is required, such Prospectus
shall have been timely filed with the Commission and no stop order
suspending the effectiveness of the Registration Statement or any part
thereof or suspending the qualification under the Trust Indenture Act of
the Indenture, the Declaration or the Capital Securities Guarantees under
the Trust Indenture Act shall have been issued.
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and no proceeding for that purpose shall have been initiated or threatened by
the Commission; and any request of the Commission for inclusion of additional
information in any Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of the Transaction Documents, the Remarketed
Capital Securities, the Guarantees, the Instruments, the Prospectus, the
Registration Statement or the Remarketing Materials and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to the Remarketing Agent, and
the Issuers shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
(c) [ ], counsel for the Remarketing Agent, shall have
furnished to the Remarketing Agent such written opinion or opinions, dated the
Remarketing Date, with respect to the incorporation of the Company, the validity
of the Capital Securities (or, if the securities subject to the Remarketing are
the Debentures, the Debentures), the Registration Statement and the Prospectus,
and such other related matters as the Remarketing Agent 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;
(d) [ ], counsel for the Trust, the Company and MetLife, shall
have furnished to the Remarketing Agent their written opinion, dated the
Remarketing Date, in form and substance reasonably satisfactory to Remarketing
Agent, 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 Prospectus and the Remarketing
Materials;
(ii) MetLife has been duly incorporated and is validly existing
as a stock life insurance company in good standing under the laws of the
State of New York, with corporate power and authority to own its property
and conduct its business as described in the Prospectus and the Remarketing
Materials;
(iii) The Company has an authorized capitalization as set forth
in the Prospectus and the Remarketing Materials; MetLife has an authorized
capitalization of _________ shares of common stock, par value $____; and
all of the issued shares of capital stock of MetLife have been duly and
validly issued, are fully paid and nonassessable and (except as described
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in the Prospectus and the Remarketing Materials and the exhibits thereto and
except for directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims; the
shares of the Issuable Common Stock have been duly and validly authorized and
reserved for issuance and, when issued and delivered in accordance with the
provisions of the Purchase Contracts, the Purchase Contract Agreement and the
Pledge Agreement, will be duly and validly issued, fully paid and non-assessable
and will conform in all material respects to the description of the Common Stock
contained in the Prospectus and the Remarketing Materials or to any amended or
supplemented description of the Common Stock contained in a then effective
report or registration statement filed pursuant to the Exchange Act; and the
issuance of the Issuable Common Stock is not subject to any preemptive or
similar rights under the amended and restated articles of incorporation and the
by-laws of MetLife or the DGCL;
(iv) The Remarketing, the issuance and sale of the Instruments, the
entry into and the compliance by the Trust, the Company and MetLife with all
provisions of the Transaction Documents and the consummation of the transactions
herein contemplated will not result in any violation of the provisions of (i)
the Amended and Restated Certificate of Incorporation or the Amended and
Restated By-Laws or similar organizational documents of the Company or MetLife
or the Declaration or any other organizational documents of the Trust, (ii) any
agreement or instrument listed as Exhibit B hereto, or (iii) any New York or
Federal statute or the DGCL or any rule or regulation known to such counsel of
any New York or Federal governmental agency or body having jurisdiction over the
Company, the Trust, MetLife or any Significant Subsidiary or any of their
properties, except, in the case of clauses (ii) and (iii), as would not,
individually or in the aggregate, adversely affect the validity or performance
of the Instruments or the Transaction Documents or have a Material Adverse
Effect;
(v) This Agreement has been duly authorized by the Trust and the
Company and, assuming due authorization, execution and delivery by the Purchase
Contract Agent, at the date hereof and at the Commencement Date and the
Remarketing Date will be duly executed and delivered by the Company and the
Trust and will constitute a valid and binding obligation of the Company and the
Trust, enforceable against the Company and the Trust in accordance with its
terms; and this Agreement conforms in all material respects to the description
thereof contained in the Prospectus and the Remarketing Materials;
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(vi) The Declaration, the Indenture and the Capital Securities Guarantee
Agreement have been duly qualified under the Trust Indenture Act;
(vii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
threatened by the Commission under the Act;
(viii) The Units have been validly issued, are fully paid and
non-assessable and conform in all material respects to the description thereof
contained in the Prospectus and the Remarketing Materials; and the Units are
not subject to preemptive or other similar rights;
(xi) 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
threatened by the Commission under the Act;
(x) The Purchase Contract Agreement has been duly authorized and
validly executed and delivered by the Company and, assuming due authorization,
execution and delivery of the Purchase Contract Agreement by the Purchase
Contract Agent, constitutes constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms
except to the extent that enforceability thereof may be limited by the
Bankruptcy Exceptions; and the Purchase Contract Agreement conforms in all
material respects to the description thereof contained in the Prospectus and
the Remarketing Materials;
(xi) The Purchase Contracts underlying the Units have been duly
authorized, issued and delivered by the Company, and constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms except to the extent that enforceability thereof
may be limited by the Bankruptcy Exceptions, and the Purchase Contracts conform
in all material respects to the description thereof contained in the Prospectus
and the Remarketing Materials, the Purchase Contracts are not subject to any
preemptive or similar rights;
(xii) Each of the Guarantee Agreements and the Guarantees has been duly
authorized and validly executed and delivered by the Company and, assuming due
authorization, execution and delivery of the Capital Securities Guarantee
Agreement by the Guarantee Trustee, constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms
except to the extent that
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enforceability thereof may be limited by the Bankruptcy Exceptions, and each of
the Guarantees and the Guarantee Agreements conforms in all material respects
to the description thereof contained in the Prospectus and the Remarketing
Materials;
(xiii) The Pledge Agreement has been duly and validly authorized,
executed and delivered by the Company; the Pledge Agreement constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms except to the extent that enforceability
thereof may be limited by the Bankruptcy Exceptions provided, however, that
based on a review of applicable case law, upon the occurrence of a Termination
Event, Section 365(e)(l) of the Bankruptcy Code (11 U.S.C. Sections 101-1330, as
amended) should not substantively limit the provisions of Sections 3.15 and 5.6
of the Purchase Contract Agreement and Section 4.3 of the Pledge Agreement that
require termination of the Purchase Contracts and release of the Collateral
Agent's security interest in the Pledged Capital Securities, Pledged Treasury
Consideration or Pledged Treasury Securities (each, as defined in the Pledge
Agreement); provided, however, that restrictions respecting relief from the
automatic stay under Section 362 of the Bankruptcy Code may affect the timing
of the exercise of such rights and remedies; the Pledge Agreement creates, as
collateral security for the performance when due by the holders of the
Securities under the respective Purchase Contracts a legal and valid security
interest (as that term is defined in the New York UCC) in favor of the
Collateral Agent for the benefit of the Company, in the right, title and
interest of such holders in all of the Pledged Securities that constitute
"securities" (as that term is defined in Section 8-102(a)(15) of the New York
UCC); and in the case of such Pledged Securities that are certificated (as
defined in the New York UCC), such security interest has been perfected upon
delivery of such certificates (indorsed in blank) to the Collateral Agent and,
assuming that neither the Collateral Agent nor the Company had notice on or
prior to the date of such delivery of an adverse claim with respect to such
Pledged Securities, the Collateral Agent has acquired a security interest in
the Pledged Securities free of any adverse claim (as that term is defined in
the New York UCC); in the case of Pledged Securities that are credited by a
securities intermediary (as defined in the New York UCC) to a securities
account (as defined in the New York UCC) in the name of the Collateral Agent,
the Collateral Agent has a perfected security interest in all security
entitlements (as defined in the New York UCC) relating to such Pledged
Securities; the Pledge Agreement conforms in all material respects to the
description thereof contained in the Prospectus and the Remarketing Materials;
(xiv) The Declaration has been and, at the Commencement Date and
Remarketing Date, will be duly executed and delivered by the
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Company and the Administrators, and, assuming due authorization,
execution and delivery of the Declaration of the Property Trustee
and the Delaware Trustee, the Declaration is and will, at each
such date, be a valid and binding obligation of the Company and
the Administrators enforceable against the Company and the
Administrators in accordance with its terms, except to the extent
that enforceability thereof may be limited by the Bankruptcy
Exceptions; each of the Administrators is an employee of the
Company and has been authorized by the Company to execute,
deliver and perform the Declaration; and the Declaration and the
Trust Securities conform in all material respects to the
description thereof contained in the Prospectus and the
Remarketing Materials;
(xv) The Indenture has been duly authorized and validly
executed by the Company and, assuming due execution and delivery
by the other parties thereto, constitutes a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms except to the extent that the
enforceability thereof may be limited by the Bankruptcy
Exceptions; and the Indenture conforms in all material respects
to the description thereof contained in the Prospectus and the
Remarketing Materials;
(xvi) The Debentures have been duly authorized and executed
by the Company and, assuming due authentication of the
Debentures, constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms except to the extent that enforceability thereof may be
limited by the Bankruptcy Exceptions, and are in the form
contemplated by, and are entitled to the benefits of, the
Indenture and the Debentures conform in all material respects to
the description thereof contained in the Prospectus and the
Remarketing Materials;
(xvii) The Capital Notes have been duly authorized and
executed by MetLife and delivered to the Company and constitute
valid and legally binding obligations of MetLife, enforceable
against MetLife in accordance with their respective terms, except
to the extent that enforceability may be limited by the
Bankruptcy Exceptions; and the Capital Notes conform in all
material respects to the description thereof contained in the
Prospectus and the Remarketing Materials;
(xviii) Neither the Trust, the Company nor MetLife is or,
after giving effect to this Agreement and the consummation of the
transactions contemplated herein or in the Remarketing
Procedures, will be an "investment company", as such term is
defined in the Investment Company Act, although certain separate
accounts of MetLife and certain
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Insurance Subsidiaries are required to register as investment companies
under the Investment Company Act;
(xix) Assuming the transactions described in the Prospectus
are consummated and performed in the manner described in the Prospectus,
the discussion under the heading "U.S. Federal Income Tax Consequences,"
except to the extent of statements as to the Company's expectations or
determinations, constitutes such counsel's opinion;
(xx) The statements set forth in the Prospectus and the
Remarketing Materials under the caption ____________________ insofar as
they purport to constitute summaries of matters of United States federal
law and __________________ and regulations or legal conclusions with
respect thereto, constitute accurate summaries of the matters described
therein in all material respects; and
(xxi) Each of the Trust, the Company and MetLife has made
all Filings required to be made pursuant to, and has obtained all
Approvals required to be obtained under, either (a) any law or regulation
of the United States or the State of New York or (b) the DGCL for the
issuance and sale of the Instruments, the entry into and the compliance by
the Trust, the Company and MetLife with all provisions of the
Transaction Documents and the Plan and the consummation of the
transactions herein and therein contemplated, except for such Filings and
Approvals, individually or in the aggregate, as would not adversely affect
the validity, performance of or consummation of the Instruments or the
transactions contemplated by the Transaction Documents and would not have a
Material Adverse Effect; and all such Filings and Approvals are in full
force and effect.
Such counsel shall also state that, while they have not themselves
checked the accuracy and completeness of, or otherwise verified, and are not
passing upon and assume no responsibility for the accuracy or completeness of,
the statements contained in the Registration Statement, the Remarketing
Materials or the Prospectus, except to the limited extent stated in clause (xx)
of this Section 5(d), in the course of their review and discussion of the
contents of the Registration Statement, the Remarketing Materials and Prospectus
with certain officers and employees of the Company and MetLife and their
independent accountants, but without independent check or verification, no facts
have come to their attention which cause them to believe that the Registration
Statement or the Remarketing Materials (other than the financial statements and
schedules and other financial information contained therein, as to which they
express no belief), at the time it became effective, 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 contained therein not
misleading, or that the Prospectus and the Remarketing Materials (other than
the financial statements and schedules and other financial
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information contained therein, as to which they express no belief), as of its
date and as of the date hereof, contains any untrue statement of a material
fact 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.
In rendering such opinion, such counsel may state that they express no
opinion as the laws of any jurisdiction other than the United States, the State
of New York and the DGCL and that to the extent that the opinions in clauses
(iv), (viii) and (xxi) involve Delaware law, such counsel has relied with
permission of the Remarketing Agent on the opinion of [name of Delaware
counsel] addressed to the Remarketing Agent.
Notwithstanding of any of the forgoing, if the securities subject to the
Remarketing are the Debentures, [ ], counsel for the Trust, the
Company and MetLife, shall have furnished to the Remarketing Agent their
written opinion, dated the Remarketing Date, in form and substance reasonably
satisfactory to the Remarketing Agent, to the effect set forth above, with such
modifications as the Remarketing Agent deems appropriate to reflect the fact
that such opinion is given in connection with the Remarketing of the Debentures.
(e) Xxxx X. Xxxxxx, Senior Executive Vice-President and General Counsel of
the Company and MetLife, shall have furnished to the Remarketing Agent his
written opinion, dated the Remarketing Date, in form and substance reasonably
satisfactory to the Remarketing Agent, 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 the corporate power and authority to own its properties and conduct
its business as described in the Prospectus and the Remarketing Materials;
(ii) MetLife has been duly incorporated and is validly existing as a
stock life insurance company in good standing under the laws of the State
of New York, with the corporate power and authority to own its properties
and conduct its business as described in the Prospectus and the Remarketing
Materials;
(iii) The Company has an authorized capitalization as described in the
Prospectus and the Remarketing Materials; MetLife has an authorized
capitalization of ________ shares of common stock, par value $_____; and
all of the issued shares of capital stock or other ownership interest of
MetLife have been duly and validly authorized and issued, are fully paid
and nonassessable and (except as described in the Registration Statement
and the Remarketing Materials and the exhibits thereto and except for
directors' qualifying shares) are owned directly or indirectly by the
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Company, free and clear of all liens, encumbrances, equities or claims; the
shares of the Issuable Common Stock have been duly and validly authorized
[and reserved for issuance] and, when issued and delivered in accordance
with the provisions of the Purchase Contracts, the Purchase Contract
Agreement and the Pledge Agreement, will be duly and validly issued, fully
paid and non-assessable and the Issuable Common Stock will conform in all
material respects to the description of the Company's Common Stock
contained in the Prospectus and the Remarketing Materials or to any
amended or supplemented description of the Company's Common Stock
contained in a then effective report or registration statement filed
pursuant to the Exchange Act; and the issuance of the Issuable Common Stock
is not subject to any preemptive or similar rights arising under the
amended and restated certificate of incorporation, by-laws of the Company
or the DGCL;
(iv) Each Significant Subsidiary has been duly organized and is
validly existing as a corporation or partnership, as applicable, and is in
good standing under the laws of its jurisdiction of organization; 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 Prospectus
and the Remarketing Materials and exhibits thereto and except for
directors' qualifying shares) are owned directly or indirectly by the
Company or MetLife, as applicable, 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; and all of the
issued and outstanding Common Securities are directly owned by the Company
free and clear of all liens, encumbrances, security interests, equities or
claims;
(v) [Each of the Company, MetLife, the Trust and each Significant
Subsidiary has been duly qualified as a foreign corporation or
partnership, as applicable, for the transaction of business and, to the
extent such concept is applicable, 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, as applicable, would not
have a Material Adverse Effect;]
(vi) Each of MetLife and 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 Prospectus and the Remarketing
Materials, 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 Prospectus and the Remarketing Materials, each
of MetLife and each
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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 by
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;
(vii) Each of the Company, MetLife 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 Prospectus and the Remarketing Materials, 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; all such
Approvals and Filings are in full force and effect and, to such counsel's
knowledge, neither the Company, MetLife 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, MetLife or any such
Subsidiary, except as described in the Prospectus and the Remarketing
Materials or any such suspension, revocation or limitation which would not
have, individually or in the aggregate, a Material Adverse Effect;
(viii) 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 Prospectus and the
Remarketing Materials, to such counsel's knowledge, no Broker-Dealer
Subsidiary or Investment Advisor Subsidiary has received any notification
from any
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applicable regulatory authority to the effect that any additional Approvals from
such regulatory authority are needed to be obtained by such Subsidiary in any
case where it could be reasonably expected that (x) such Broker-Dealer
Subsidiary or the Investment Advisor Subsidiary would in fact be required either
to obtain any such additional Approvals or cease or otherwise limit engaging in
certain business and (y) the failure to have such Approvals or limiting such
business would have a Material Adverse Effect;
(ix) To such counsel's knowledge, other than as described or contemplated
in the Prospectus or the Remarketing Materials, there are no legal or
governmental proceedings pending to which the Trust, the Company, MetLife or any
Significant Subsidiary is a party or of which any property of the Trust, the
Company, MetLife or any Significant Subsidiary is the subject which, if
determined adversely to the Trust, the Company, MetLife or any Significant
Subsidiary, could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and, to such counsel's knowledge and other
than as described or contemplated in the Prospectus, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(x) This Agreement has been duly authorized, executed and delivered by
the Trust and the Company;
(xi) The Capital Notes have been duly authorized and validly executed,
issued and delivered by MetLife and constitute valid and legally binding
obligations of MetLife, enforceable against MetLife in accordance with their
respective terms, except to the extent that enforceability may be limited by the
Bankruptcy Exceptions and the Capital Notes conform in all material respects to
the description thereof in the Prospectus and the Remarketing Materials;
(xii) No Significant Subsidiary is or, after giving effect to this
Agreement and the consummation of the transactions contemplated herein or in the
Remarketing Procedures, will be an "investment company", as such term is defined
in 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;
(xiii) The Remarketing, the issuance and sale of the Instruments, the entry
into and the compliance by the Trust, the Company and MetLife with all
provisions of the Transaction Documents and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan
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agreement or other agreement or instrument known to such counsel to which the
Trust, the Company, MetLife or any Significant Subsidiary is a party or by which
the Trust, the Company, MetLife or any Significant Subsidiary is bound or to
which any of the property or assets of the Trust, the Company, MetLife or any of
their respective subsidiaries is subject, or which affects the validity,
performance or consummation of the transactions contemplated herein nor will
such action result in any violation of the provisions of (x) the amended and
restated certificate of incorporation or the amended and restated by-laws or
similar organization documents of the Company, MetLife or any Significant
Subsidiary or the Declaration or any other organizational document of the Trust
or (y) to such counsel's knowledge, any statute or any order, rule or regulation
of any court or insurance regulatory agency or other governmental agency or body
having jurisdiction over the Trust, the Company, MetLife or any Significant
Subsidiary or any of their properties, in each case the effect of which (other
than a violation of the amended and restated certificate of incorporation or the
amended and restated by-laws or similar organization documents of the Company or
MetLife or the Declaration or any other organizational document of the Trust),
individually or in the aggregate, would be either to adversely affect the
validity or performance of the Instruments or the Transaction Documents or to
have a Material Adverse Effect;
(xiv) Each of the Trust, the Company and MetLife has made all
Filings required to be made and has obtained all Approvals required to be
obtained, under any law or regulation of the United States or any state thereof
required for the issuance and sale of the Instruments, the entry into and the
compliance by the Trust, the Company and MetLife with all provisions of the
Transaction Documents, and the consummation of the transactions herein
contemplated, except for such Filings and Approvals as (i) may be required
under state securities, insurance securities or Blue Sky laws in connection
with the purchase and distribution of the Remarketed Capital Securities by the
Remarketing Agent, or (ii) individually or in the aggregate, would not
adversely affect the validity or performance of the Instruments or the
Transaction Documents and would not have a Material Adverse Effect; and all
other Filings and Approvals required to be made or obtained on or prior to the
Plan Effective Date in connection with the Demutualization or for the
consummation by the Trust, the Company and MetLife of the transactions
contemplated by the Transaction Documents have been so obtained and are in full
force and effect, except as described in the Prospectus or the Remarketing
Materials or to the extent that the failure to make any such Filings or have
any such Approvals would not have, individually or in the aggregate, a Material
Adverse Effect and would not adversely affect the validity, performance of or
consummation of the Instruments or the transactions contemplated by the
Transaction Documents or adversely affect the creation and operation of the
Policyholder Trust
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pursuant to the Plan; and all such Filings and Approvals are in full force and
effect;
(xv) The Units are validly issued, fully paid and non-assessable; the
Units conform in all material respects to the description thereof contained in
the Prospectus and the Remarketing Materials and are not subject to preemptive
or other similar rights;
(xvi) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or the Remarketing Materials or any
part thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act;
(xvii) The statements set forth in the Prospectus and the Remarketing
Materials under the caption "____________________", insofar as they purport to
constitute summaries of matters of United States law and regulations or legal
conclusions with respect thereto, constitute accurate and complete summaries of
the matters described therein in all material respects; and any other statements
with respect to matters of law and regulations or legal conclusions with respect
thereto set forth in the Prospectus and the Remarketing Materials are accurate
in all material respects; and
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, the Remarketing Materials or
the Prospectus, except to the limited extent stated in clause (xvii) of this
Section 5(e) in the course of his review and discussion of the contents of the
Registration Statement and the Remarketing Materials and the Prospectus with
certain officers and employees of the Company and MetLife and their independent
accountants, but without independent check or verification, no facts have come
to this attention which cause him to believe that the Registration Statement and
the Remarketing Materials (other than the financial statements and schedules and
other financial information contained therein, as to which he expresses no
belief), at the time it became effective, 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 contained therein not misleading, or that
the Prospectus and the Remarketing Materials (other than the financial
statements and schedules and other financial information contained therein, as
to which he expresses no belief), as of its date and as of the date hereof,
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they
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were made, not misleading; such counsel does not know of any legal or
governmental proceedings required to be described in the Registration
Statement, the Remarketing Materials or in the Prospectus which are not
described as required; and such counsel does not know of any amendment to
the Registration Statement or the Remarketing Materials 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 the Remarketing
Materials or required to be described in the Registration Statement, the
Remarketing Materials or the Prospectus which are not filed or described as
required.
In rendering such opinion, such counsel may state that he 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 that to the extent that the opinions in clauses (xiii), (xiv)
and (xv) of this Section 5(e) involve Delaware law, such counsel has relied with
the permission of the Remarketing Agent on the opinion of [name of Delaware
counsel] addressed to the Remarketing Agent. Such counsel may state that,
insofar as the opinions rendered above relate to any Significant Subsidiary,
such counsel has relied on the opinions of the General Counsel of such
Subsidiary and insofar as the opinions expressed above relate to the Trust, any
Significant Subsidiary of the Company, MetLife and their subsidiaries (other
than the Significant Subsidiaries) and involve the laws of the jurisdictions
other than New York and the United States, such counsel has not retained local
counsel but has relied upon the familiarity of other in-house attorneys of
MetLife over whom such counsel exercises general supervision with the relevant
laws of such jurisdictions. Such counsel may also state that, insofar as such
opinions involve matters of fact, he and such attorneys have relied with your
permission upon certificates of officers of MetLife, the Trust and the
Significant Subsidiaries.
Notwithstanding of any of the forgoing, if the securities subject to
the Remarketing are the Debentures, Xxxx X. Xxxxxx, Senior Executive
Vice-President and General Counsel of the Company and MetLife, shall have
furnished to the Remarketing Agent their written opinion, dated the Remarketing
Date, in form and substance reasonably satisfactory to the Remarketing Agent,
to the effect set forth above, with such modifications as the Remarketing
Agent deems appropriate to reflect the fact that such opinion is given in
connection with the Remarketing of the Debentures.
(f) [ ], special Delaware counsel for the Trust, the
Company and MetLife, shall have furnished to the Remarketing Agent their
written opinion, dated such Remarketing Date, in form and substance reasonably
satisfactory to Remarketing Agent, to the effect that:
(i) The Trust has been duly created and is validly existing as a
business trust in good standing under the laws of the State of Delaware.
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Under the Trust Act and the Declaration, the Trust has all requisite trust
power and authority to own its properties and conduct its business as
described or contemplated by the Remarketing Materials and the Prospectus
and to enter into and perform its obligations under this Agreement and the
Trust Securities.
(ii) All filings required under the Trust Act with respect
to the creation and valid existence of the Trust as a Delaware business
trust have been made and all such filings are in full force and effect;
(iii) The Declaration constitutes a valid and binding
obligation of the Company and the Administrators and is enforceable against
the Company and the Administrators in accordance with its terms, subject,
as to enforcement, to the effect upon the Declaration of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws relating to or
affecting the rights and remedies of creditors generally, (ii) principles
of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or
at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution;
(iv) Under the Declaration and the Trust Act, the Trust has
requisite trust power and authority to execute, deliver and perform its
obligations under this Agreement and to perform its obligations under the
Trust Securities and the Declaration;
(v) Under the Trust Act and the Declaration, the execution
and delivery by the Trust of this Agreement and the performance by the
Trust of its obligations hereunder have been authorized by all necessary
action on the part of the Trust;
(vi) The Capital Securities are duly and validly issued,
fully paid and, subject to the limitation set forth in the last sentence of
this subparagraph (vi) below, non-assessable undivided beneficial interests
in the assets of the Trust and constitute valid and binding obligations of
the Trust enforceable against the Trust, subject to (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws relating to or
affecting the rights and remedies of creditors generally, (ii) principles
of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or
at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution;
the Trust Securities entitle the holders thereof to the benefits of the
Declaration, except to the extent that enforceability of the Declaration
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is subject to (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and other similar
laws relating to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution; the Trust Securities
have the rights set forth in the Declaration; each holder of the Capital
Securities, as beneficial owners of the Trust, is to be entitled to the same
limitation of personal liability as that extended to stockholders of private
corporations for profit organized under the DGCL. Such counsel may note that the
holders of the Trust Securities may be required to make payments or provide
indemnity or security as set forth in the Declaration;
(vii) Under the Declaration and the Trust Act, the Trust Securities
are not subject to any preemptive or other similar rights and the Trust
Securities are the only interest in the assets of the Trust authorized to be
issued by the Trust;
(vii) None of the execution, delivery or the performance by the Trust
of its obligations under, this Agreement, the Remarketing of the Capital
Securities in accordance with the terms of this Agreement, or the consummation
by the Trust of the other transactions contemplated hereby, will violate any
provisions of applicable Delaware law or Delaware administrative regulations or
the Declaration; and
(ix) Under the Declaration and the Trust Act, the Trust has all trust
power and authority necessary to own property and conduct its business, all as
described in the Prospectus; after due inquiry on ___________, limited to, and
solely to the extent disclosed thereupon, court dockets for active cases of the
Court of Chancery of the State of Delaware in and for New Castle County,
Delaware, of the Superior Court of the State of Delaware in and for New Castle
County, Delaware, and of the United States District Court sitting in the State
of Delaware, we are not aware of any legal or governmental proceeding pending
against the Trust;
(x) No authorization, approval, consent, order, registration or
qualification or with any Delaware state governmental authority or Delaware
state agency is required for the Remarketing of the Capital Securities, or the
performance by the Trust of its obligations under this Agreement, the Units, the
Declaration and the Trust Securities, except such as has been previously
obtained and made.
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Notwithstanding any of the forgoing, if the securities subject to the
Remarketing are the Debentures, [ ], special Delaware counsel for
the Trust, the Company and MetLife, shall have furnished to the
Remarketing Agent their written opinion, dated the Remarketing Date, in
form and substance reasonably satisfactory to the Remarketing Agent, to
the effect set forth above, with such modifications as the Remarketing
Agent deems appropriate to reflect the fact that such opinion is given in
connection with the Remarketing of the Debentures.
(g) [ ], special Delaware counsel to the Delaware Trustee
(solely for the purpose of the opinion set forth in this paragraph (g))
shall have furnished to the Remarketing Agent their written opinion, dated
the Remarketing Date, in form and substance reasonably satisfactory to the
Remarketing Agent, to the effect that:
(i) The Delaware Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State of
Delaware;
(ii) The execution, delivery and performance by the Delaware
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee; the Declaration
has been duly executed and delivered by the Delaware Trustee; it
constitutes the legal, valid and binding obligation of the Delaware
Trustee, and is enforceable against the Delaware Trustee in
accordance with its terms; subject, as to enforcement, to the effect
upon the Declaration of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights
and remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law),
and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution;
(iii) The execution, delivery and performance of the Declaration
by the Delaware Trustee do not violate the charter or by-laws of the
Delaware Trustee; and
(iv) No consent of any federal or Delaware banking state
authority is required for the performance of the Declaration by the
Delaware Trustee.
Notwithstanding of any of the forgoing, if the securities subject
to the Remarketing are the Debentures, [name of Delaware counsel], special
Delaware counsel to the Delaware Trustee (solely for the purpose of the
opinion set forth in this paragraph (g)) shall have furnished to the
Remarketing Agent their written opinion, dated the Remarketing Date, in
form and substance reasonably satisfactory
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to the Remarketing Agent, to the effect set forth above, with such
modifications as the Remarketing Agent deems appropriate to reflect
the fact that such opinion is given in connection with the Remarketing
of the Debentures.
(h) [ ], counsel to the Property Trustee, the Guarantee
Trustee and the Debenture Trustee and special counsel to The Bank of
New York, as the Collateral Agent, the Custodial Agent and Securities
Intermediary (such trustees, agents and entities, collectively, the
"Agents"), shall have furnished to the Remarketing Agent their written
opinion, dated the Remarketing Date, in form and substance reasonably
satisfactory to the Remarketing Agent, to the effect that:
(i) Each of the Agents is a banking corporation, duly
incorporated and validly existing under the laws of the State of
New York;
(ii) The Declaration, this Agreement, the Capital
Securities Guarantee Agreement, the Indenture and the Pledge
Agreement have each been duly executed and delivered by the
Property Trustee, the Guarantee Trustee, the Debenture Trustee
and the Collateral Agent, the Custodial Agent and the Securities
Intermediary, respectively, and such Agreements and instruments
constitute legal, valid and binding obligations of the relevant
Agents, enforceable against such Agents in accordance with their
respective terms, except to the extent that enforceability may
be limited by the Bankruptcy Exceptions;
(iii) The execution, delivery and performance by (1) the
Property Trustee of the Declaration and this Agreement, (2) the
Guarantee Trustee of the Capital Securities Guarantee Agreement,
(3) by the Debenture Trustee of the Indentures and (4) the
Collateral Agent, the Custodial Agent and the Securities
Intermediary of the Pledge Agreement, does not violate or
constitute a breach of the Articles of Organization or By-Laws
of any of such Agents, or the terms of any indenture or other
agreement or instrument known to such counsel and to which any
of such Agents, is a party or by which it may be bound or any
judgment, order or decree known to such counsel to be applicable
to any of such Agents of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over any of such Agents; and
(iv) No Consent of any federal or state banking authority
is required for the execution, delivery or performance by the
Agents of their respective obligations under this Agreement.
Notwithstanding of any of the foregoing, if the securities
subject to the Remarketing are the Debentures, [ ], counsel to the Agents
shall have furnished to the Remarketing Agent their written opinion, dated the
Remarketing Date, in form and substance reasonably satisfactory to the
Remarketing Agent, to the effect set forth
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above, with such modifications as the Remarketing Agent deems appropriate to
reflect the fact that such opinion is given in connection with the Remarketing
of the Debentures.
(i) The Law Department of The Bank One Trust Company ("Bank One"), as the
Purchase Contract Agent, shall have furnished to the Remarketing Agreement their
written opinion, dated such Remarketing Date, in form and substance reasonably
satisfactory to the Remarketing Date, to the effect that:
(i) Bank One is a banking corporation, duly incorporated and validly
existing under the laws of the United States of America;
(ii) This Agreement, the Pledge Agreement and the Purchase Contract
Agreement have each been duly executed and delivered by Bank One and such
Agreements constitute legal, valid and binding obligations of Bank One in
accordance with their respective terms, except to the extent that enforceability
may be limited by the Bankruptcy Exceptions; and the certificates for the Units
have been duly authenticated by the Purchase Contract Agent;
(iii) The execution, delivery and performance by Bank One of the
Purchase Contract Agreement, the Remarketing Agreement and the Pledge
Agreement, does not violate or constitute a breach of the Articles of
Organization or By-Laws of any of Bank One, or the terms of any indenture or
other agreement or instrument known to such counsel and to which Bank One, is a
party or by which it may be bound or any judgment, order or decree known to
such counsel to be applicable to Bank One of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
Bank One; and
(iv) No Consent of any Federal or state authority is required for the
performance by Bank One of its obligations under the Pledge Agreement, the
Remarketing Agreement and the Purchase Contract Agreement.
Notwithstanding any of the forgoing, if the securities subject to the
Remarketing are the Debentures, the Law Department of Bank One shall have
furnished to the Remarketing Agent their written opinion, dated the Remarketing
Date, in form and substance reasonably satisfactory to the Remarketing Agent, to
the effect set forth above, with such modifications as the Remarketing Agent
deems appropriate to reflect the fact that such opinion is given in connection
with the Remarketing of the Debentures.
(j) The Trust, the Company and MetLife will furnish the Remarketing Agent
with such conformed copies of such opinions, certificates, letters and documents
as the Remarketing Agent reasonably requests.
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(k) On the Remarketing Date at 9:30 a.m., New York City time [ ],
the independent auditors, or another independent accounting firm with nationally
recognized reputation, that have audited the consolidated financial statements
of MetLife, shall have furnished to the Remarketing Agent a letter or letters,
dated the respective dates of delivery thereof, in form and substance reasonably
satisfactory to the Remarketing Agent, containing statements and information of
the type ordinarily included in accountants' "comfort letters" with respect to
certain financial information contained in the Prospectus and in the Remarketing
Materials.
(l) (i) Neither the Trust, the Company, MetLife nor any Significant
Subsidiary shall has sustained since the date of the latest audited financial
statements included in the Prospectus and the Remarketing Materials 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 Prospectus or the Remarking Materials, and (ii) since the
respective dates as of which information is given in the Prospectus and the
Remarketing Materials there shall not have been any change in the surplus of
MetLife or the capital stock or other ownership interests of the Trust or the
Company or any increase in the long-term debt of the Trust or the Company,
MetLife or their 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 Trust
or of the Company, MetLife and the Significant Subsidiaries considered as a
whole, otherwise than as set forth or contemplated in the Prospectus and the
Remarketing Materials, the effect of which, in any such case described in clause
(i) or (ii), in the judgment of the Remarketing Agent, is so material and
adverse as to make it impracticable or inadvisable to proceed with the
Remarketing on the terms and in the manner contemplated herein;
(m) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the debt securities of the Trust, the Company, MetLife or
any Significant Subsidiary or the financial strength or claims paying ability of
the Trust, the Company, MetLife, or any of their respective 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
Trust, the Company, MetLife or any Significant Subsidiary;
(n) On or after the date hereof 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 rate or exchange controls as would, in
the
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judgment of the Remarketing Agent, be likely to prejudice materially the
success of the proposed Remarketing, 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 Exchange; (iii) a
suspension or material limitation in trading in the Company's or the
Trust's securities on the Exchange; (iv) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (v) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(v) in the judgment of the Remarketing Agent makes it impracticable or
inadvisable to proceed with the Remarketing on the terms and in the manner
contemplated in the Remarketing Agreement;
(o) The Units shall have been duly listed, and the Issuable
Common Stock, subject to notice of issuance, shall have been duly listed,
on the Exchange;
(p) The Company shall have complied with the provisions of
Section 4(c) hereof with respect to the furnishing of Prospectus on the New
York Business Day next succeeding the date of this Agreement; and
(q) The Trust and the Company shall have furnished or caused to
be furnished to the Remarketing Agent at the Remarketing Date certificates
of officers of the Trust and the Company satisfactory to the Remarketing
Agent as to the accuracy of the representations and warranties of the
Company and the Trust herein at and as of the Remarketing Date, as to the
performance by the Trust and the Company of all of their obligations
hereunder to be performed at or prior to the Remarketing date, as to the
matters set forth in subsections (a) and (l) of this Section 5 and as to
such other matters as the Remarketing Agent may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Remarketing Agent.
Section 6. Indemnification and Contribution. (a) The Company and the
Trust will jointly and severally indemnify and hold harmless the Remarketing
Agent its partners, directors and officers and each person, if any, who controls
such Remarketing Agent within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which the
Remarketing Agent 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 Prospectus or the Remarketing Materials, or any amendment or
supplement(s) 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, and will reimburse the
Remarketing Agent for any legal or other expenses reasonably incurred by the
Remarketing Agent in connection with investigating or defending any such action
or
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claim as such expenses are incurred; provided, that neither the Company nor the
Trust shall 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, the Prospectus
or the Remarketing Materials or any such amendment or supplement(s) in reliance
upon and in conformity with written information furnished to the Company and the
Trust by the Remarketing Agent expressly for use therein; provided, further,
that neither the Trust nor the Company nor MetLife shall be liable to the
Remarketing Agent under the indemnity agreement in this subsection (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 the Remarketing Agent results from the fact that
the Remarketing Agent sold any Remarketed Capital 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 Prospectus as then amended or supplemented (it being
understood that if at the time of any such claim the Remarketing Agent shall
certify that it has sent or given the 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 Prospectus has been so sent or given unless
the Trust or the Company or MetLife 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 or MetLife has furnished copies of such
Prospectus as amended or supplemented to the Remarketing Agent a reasonable
period of time prior to the Remarketing Agent being required so to deliver such
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 Prospectus as amended or
supplemented.
(b) The Remarketing Agent will indemnify and hold harmless the
Company or the Trust, as applicable, and in the case of the Company and the
Trust, their respective directors and officers who sign the Registration
Statement or the Remarketing Materials and each person, if any, who
controls the Trust or the Company within the meaning of Section 15 of the
Act against any losses, claims, damages or liabilities to which the
Company, MetLife or the Trust 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 Prospectus, the
Remarketing Materials, or any amendment or supplement 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 Remarketing Materials or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company, or the Trust by such
Remarketing Agent
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expressly for use therein; and will reimburse the Company, or the Trust, as
applicable, for any legal or other expenses reasonably incurred by the Company
or the Trust in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; the omission so to notify the indemnifying
party shall relieve it from any liability which it may have to any indemnified
party under such subsection, to the extent the indemnifying party is actually
prejudiced. 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), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defence 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.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company, and the Trust on the one hand and
the Remarketing Agent on the other from the Remarketing. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
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appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Trust on the one hand and the
Remarketing Agent on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Trust
on the one hand and the Remarketing Agent on the other shall be deemed to
be in the same proportion as the aggregate stated liquidation amount (if
the remarketed securities are the Capital Securities) or the aggregate
principal amount (if the remarketed securities are the Debentures) of the
remarketed securities bear to the remarketing fees received by the
Remarketing Agent from the Issuers under this Agreement. 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 or the Trust on the one hand or the Remarketing Agent on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company,
the Trust and the Remarketing Agent agree that it would not be just and
equitable if contributions pursuant to this subsection (d) 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 (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), the
Remarketing Agent shall not be required to contribute any amount in excess
of the amount by which the aggregate stated liquidation amount (if the
remarketed securities are the Capital Securities) or aggregate principal
amount if the remarketed securities are the Debentures) of the remarketed
securities exceeds the amount of any damages which the Remarketing Agent
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(e) The obligations of the Company and the Trust under this Section 6
shall be in addition to any liability which the Company or the Trust may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls the Remarketing Agent within the meaning
of the Act. The obligations of the Remarketing Agent under this Section 6
shall be in addition to any liability which the Remarketing Agent may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company of the Trust and to each person,
if any, who controls the Company or the Trust within the meaning of the
Act.
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Section 7. Resignation and Removal of the Remarketing Agent. The
Remarketing Agent may resign and be discharged from its duties and obligations
hereunder, and Company may remove the Remarketing Agent, by giving [ ] days'
prior written notice to the Trust, the Purchase Contract Agent and the Debenture
Trustee and, in the case of a removal, the removed Remarketing Agent; provided
that (i) the Company may not remove the Remarketing Agent unless [ ]
and (ii) no such resignation nor any such removal shall become effective until
the Company shall have appointed at least one nationally recognized
broker-dealer as successor Remarketing Agent and such successor Remarketing
Agent shall have entered into a remarketing agreement with the Issuers in which
it shall have agreed to conduct the Remarketing in accordance with the
Remarketing Procedures. In any such case, the Company will use its reasonable
efforts to appoint a successor Remarketing Agent and enter into such a
remarketing agreement with such person as soon as reasonably practicable. The
provisions of Sections [ ] and 7 shall survive the resignation or removal of any
Remarketing Agent pursuant to this Agreement.
Section 8. Dealing in the Remarketed Capital Securities. The
Remarketing Agent, when acting as a Remarketing Agent or in its individual or
any other capacity, may, to the extent permitted by law, buy, sell, hold and
deal in any of the Remarketed Capital Securities. The Remarketing Agent may
exercise any vote or join in any action which any beneficial owner of Remarketed
Capital Securities may be entitled to exercise or take pursuant to the Purchase
Contract Agreement, the Declaration or the Indenture with like effect as if it
did not act in any capacity hereunder. The Remarketing Agent, in its individual
capacity, either as principal or agent, may also engage in or have an interest
in any financial or other transaction with the Company, MetLife or the Trust as
freely as if it did not act in any capacity hereunder.
Section 9. Remarketing Agent's Performance; Duty of Care; Supervising
Obligations. The duties and obligations of the Remarketing Agent shall be
determined solely by the express provisions of this Agreement, the Purchase
Contract Agreement and the Declaration. No implied covenants or obligations of
or against the Remarketing Agent shall be read into this Agreement, the Purchase
Contract Agreement or the Declaration. In the absence of bad faith on the part
of the Remarketing Agent, the Remarketing Agent may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Agreement, the Purchase Contract Agreement or the Declaration as to the truth of
the statements expressed in any of such documents. The Remarketing Agent shall
be protected in acting upon any document or communication reasonably believed by
it to have been signed, presented or made by the proper party or parties. The
Remarketing Agent, acting under this Agreement, shall incur no liability to the
company or to any holder of Remarketed Capital Securities in its individual
capacity or as Remarketing Agent for any action or failure to act, on its part
in connection with a Remarketing or otherwise, except if such liability is
judicially determined to have resulted from the bad faith, negligence or willful
misconduct on its part. The Remarketing Agent may, but shall not be obligated to
purchase Remarketed Capital Securities for its own account.
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If at any time during the term of this Agreement, any Event of Default
under the Indenture or the Declaration, or any event that with the passage of
time or the giving of notice or both would become on Event of Default under the
Indenture or the Declaration, has occurred and is continuing under the Indenture
or the Declaration, then the obligations and duties of the Remarketing Agent
under this Agreement shall be suspended until such default or event has been
cured. The Company will cause the Indenture Trustee, the Purchase Contract Agent
and the Administrators to give the Remarketing Agent notice of all such defaults
and events of which such trustee, agent or administrator is aware.
Section 10. Termination. This Agreement shall terminate as to the
Remarketing Agent on the effective date of the resignation or removal of the
Remarketing Agent pursuant to Section 7. In addition, the obligations of the
Remarketing Agent hereunder may be terminated by it by notice given to the
Company prior to 10:00 A.M., New York City time, on the Remarketing Date if,
prior to that time, any of the events described in Sections [ ] shall have
occurred.
Section 11. Notices. Except as otherwise stated herein, all statements,
requests, notices and agreements hereunder shall be in writing, and if to the
Remarketing Agent shall be delivered or sent by mail or facsimile transmission
to ; if to the Company shall be delivered or sent by mail
or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; if to the Trust shall be
delivered or sent by mail or facsimile transmission to: ;
if the Property Trustee shall be delivered or sent by mail; or facsimile
transmission to ; if to the Debenture Trustee shall
be delivered or sent by mail or facsimile transmission to ;
and if to the Collateral Agent or the Custodial Agent shall be delivered or sent
by mail or facsimile transmission to .
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
Section 12. This Agreement shall be binding upon, and inure solely to the
benefit of, the Remarketing Agent, the Company and the Trust to the extent
provided in Sections 6 and [ ] hereof, the officers and directors of the
Company and the Trust and each person who controls the Company, the Trust or
the Remarketing Agent, 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 or any of the Capital
Securities from the Remarketing Agent shall be deemed a successor or assign by
reason merely of such purchase.
Section 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
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Section 14. Jurisdiction. The Issuers hereby submit to the nonexclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
Section 15. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section 16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement among the Company, the
Trust, the Purchase Contract Agent and the Remarketing Agent, please indicate
your acceptance in the space provided for that purpose below.
Very truly yours,
MetLife, Inc.
By:
----------------------------------------
Name:
Title:
MetLife Capital Trust I
By:
----------------------------------------
Name:
Title:
Bank One Trust Company, N.A.
as Purchase Contract Agent
By:
----------------------------------------
Name:
Title:
Accepted:
[NAME OF REMARKETING AGENT]
By:
-----------------------------
Authorized Representative
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EXHIBIT A
SIGNIFICANT SUBSIDIARIES
A-1
