METLIFE, INC. DEBT SECURITIES UNDERWRITING AGREEMENT
Exhibit 1.3
METLIFE, INC.
DEBT SECURITIES
August 3, 2010
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time, MetLife, Inc., a Delaware corporation (the “Company”), proposes to
enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex
I hereto, with such additions and deletions as the parties thereto may determine and, subject to
the terms and conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (the “Underwriters” with respect to such
Pricing Agreement and the securities specified therein) the principal amount of its securities or
aggregate number of shares identified in Schedule I to the applicable Pricing Agreement (the
“Securities” with respect to such Pricing Agreement).
The terms and rights of any particular issuance of Securities shall be as specified in the
Pricing Agreement relating thereto and in or pursuant to the Senior Indenture as specified in such
Pricing Agreement as supplemented by the Sixteenth Supplemental Indenture, the Seventeenth
Supplemental Indenture and the Eighteenth Supplemental Indenture, as the case may be (the Senior
Indenture as so supplemented, the “Indenture”), or the Amended and Restated Certificate of
Incorporation of the Company (including the applicable Certificate of Designation), as applicable
(each a “Securities Agreement”), and identified in such Pricing Agreement.
Particular sales of Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the Underwriters of such Securities
in the Pricing Agreement relating thereto will act as representatives (the
“Representatives”). The term “Representatives” also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm being designated as
their representative. This Underwriting Agreement shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase
the Securities. The obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to
purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the
Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such Securities or the
total number of shares, as the case may be, the initial public offering price of such Securities,
the purchase price to the Underwriters of such Securities, the names of the Underwriters of such
Securities, the names of the Representatives of such Underwriters and the principal amount or
number of shares, as the case may be, of such Securities to be purchased by each Underwriter. In
addition, such Pricing Agreement shall set forth the date, time and manner of delivery of such
Securities and payment therefor. Such Pricing Agreement shall also specify (in a manner not
inconsistent with the applicable Securities Agreements and the registration statement and
prospectus with respect thereto) the terms of such Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to produce a written
record of communications transmitted. The obligations of the Underwriters under this Agreement and
each Pricing Agreement shall be several and not joint.
1. Representations and Warranties. The Company represents and warrants to the
Underwriters, and agrees with each of the Underwriters that, unless otherwise specified, as of the
date hereof, as of the Applicable Time and as of the Closing Date, as follows:
(a) The Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-147180) under the
Securities Act of 1933, as amended (the “Act”), which has become effective, for the
registration under the Act of the Securities. The Company meets the requirements for use
of Form S-3 under the Act. The Company proposes to file with the Commission pursuant to
Rule 424 under the Act a supplement or supplements to the form of prospectus included in
such registration statement relating to the Securities and the plan of distribution
thereof. Such registration statement, including the exhibits thereto, as amended at the
date of this Agreement, is hereinafter called the “Registration Statement”; the
Registration Statement at the time it originally became effective is herein called the
“Original Registration Statement”; such prospectus in the form in which it appears
in the Original Registration Statement is hereinafter called the “Base Prospectus”;
and such supplemented form of prospectus, in the form in which it shall first be filed with
the Commission pursuant to Rule 424 (including the Base Prospectus as so supplemented), is
hereinafter called the “Final Prospectus.” Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424 is hereinafter called a
“Preliminary Prospectus.” Any reference herein to the Registration Statement, the
Base Prospectus, any Preliminary Prospectus, the
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Pricing Prospectus (as defined below) or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on or before the date of this Agreement, or the issue date of the
Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Final Prospectus shall be deemed to
refer to and include any document filed under the Exchange Act after the date of this
Agreement, or the issue date of the Base Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference; each Preliminary Prospectus, the Pricing Prospectus and the
prospectuses filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Act, complied when so filed
in all material respects with the Act and the rules thereunder and each Preliminary
Prospectus, the Pricing Prospectus and the Final Prospectus delivered to the
Representatives for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission via the Electronic Data
Gathering, Analysis and Retrieval (“XXXXX”) system, except to the extent permitted
by Regulation S-T.
(b) (i) The Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and, in the case of Securities
issued pursuant to the Indenture, such Indenture, will comply in all material respects with
the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”), as applicable, and the respective
rules thereunder;
(ii) (A) The Registration Statement does not and will not, as of the
applicable effective date as to each part of the Registration Statement, contain
any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading and (B) the Final Prospectus does not and will not, as of its date and
as of its filing date, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that for each of (A) and (B), the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the trustee’s Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act or
(ii) the information contained in or omitted from the Registration
Statement or the
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Final Prospectus in reliance upon and in conformity with information relating
to such Underwriter furnished in writing to the Company by any Underwriter
expressly for use in the Registration Statement and the Final Prospectus;
(iii) As of the Applicable Time, the Issuer Free Writing Prospectus(es) (as
defined below) listed on Schedule 1 hereto, if any, the Pricing Prospectus (as
defined below), and the final term sheet relating to the Securities set forth as
Schedule II to the Pricing Agreement (as defined below) (the “Final Term
Sheet”), all considered together (collectively, the “Disclosure
Package”), will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
(iv) As of the Applicable Time, each Issuer Free Writing Prospectus listed on
Schedule 1 hereto, if any, and Schedule 2 hereto will not conflict with the
information contained or incorporated by reference in the Registration Statement or
the Disclosure Package, and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Disclosure Package and any other such
Issuer Free Writing Prospectus, in each case as of the Applicable Time, will not
include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, it is understood and
agreed that in no event shall any such Issuer Free Writing Prospectus, including
but not limited to any electronic roadshow, be listed on Schedule 1 hereto and
Schedule 2 hereto unless the Company (i) has consented to the use thereof and (ii)
shall have approved its contents before any such use, in each case in accordance
with the provisions of this Agreement.
As used in this subsection and elsewhere in this Underwriting Agreement:
“Applicable Time” means 4:50 p.m. (Eastern Time) on August 3, 2010 or such
other time as agreed by the Company and the Representatives and stated in the applicable
Pricing Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,”
as defined in Rule 433 under the Act (“Rule 433”), relating to the Securities.
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“Pricing Prospectus” means the Base Prospectus, as amended or supplemented
(including by any Preliminary Prospectus) immediately prior to the Applicable Time.
(c) At the time the Company or another offering participant first made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company
was not an “ineligible issuer” as defined in Rule 405 under the Act.
(d) (i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of the Act) relied on the
exemption of Rule 163 of the Act and (iv) as of the date of this Agreement, the
Company was and is a “well known seasoned issuer” as defined in Rule 405 of the Act. The
Registration Statement is an “automatic shelf registration statement,” as defined in
Rule 405 of the Securities Act, that automatically became effective not more than three
years prior to the date hereof; the Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) of the Act objecting to use of the automatic shelf registration
statement and the Company has not otherwise ceased to be eligible to use the automatic
shelf registration statement. The Company has paid or shall pay the required Commission
filing fees relating to the Securities within the time required by Rule 456(b)(1) under the
Act and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(e) Each document incorporated or deemed to be incorporated by reference in the
Registration Statement, the Disclosure Package and the Final Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the Act or the Exchange Act, as applicable.
(f) Neither the Company nor any Significant Subsidiary (as defined below) of the
Company has sustained since the date of the latest audited financial statements included or
incorporated by reference in the Disclosure Package any loss or interference material to
the business of the Company and its subsidiaries considered as a whole, other than as
described in or contemplated by the Disclosure Package, from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and, since the respective dates as of which
information is given in the Disclosure Package, other than as described or contemplated in
the Disclosure Package, there has not been any (i) material addition, or
development involving a
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prospective material addition, to the liability of any Significant Subsidiary 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 any
Significant Subsidiary or material change in the capital stock or other ownership interests
(other than issuances of common stock upon the exercise of outstanding employee stock
options or pursuant to existing employee compensation plans or on the conversion or
exchange of convertible or exchangeable securities outstanding on the date of the
applicable Pricing Agreement) of the Company or any Significant Subsidiary or any material
increase in the long-term debt of the Company or its subsidiaries, considered as a whole,
or (iii) material adverse change, or development involving a prospective material
adverse change, in or affecting the business, financial position, reserves, surplus, equity
or results of operations (in each case considered either on a statutory accounting or U.S.
generally accepted accounting principles (“GAAP”) basis, as applicable) of the
Company and its subsidiaries considered as a whole. As of December 31, 2009, the
subsidiaries of the Company that would qualify as a “Significant Subsidiary” of the Company
under Regulation S-X were Metropolitan Life Insurance Company (“MLIC”), MetLife
Insurance Company of Connecticut, MetLife Reinsurance Company of Charleston, Exeter
Reassurance Company, Ltd. and St. Xxxxx Xxxxx Investments Two Limited. For purposes of
this Agreement, the term “Significant Subsidiary” shall mean each of the subsidiaries
listed in the preceding sentence other than St. Xxxxx Xxxxx Investments Two Limited.
(g) The Company and each Significant Subsidiary has good and marketable title in fee
simple to all material real property and good and marketable title to all material personal
property owned by it, in each case free and clear of all liens, encumbrances and defects,
except such as are described in the Disclosure Package or such as would not have a material
adverse effect on the business, financial position, equity, reserves, surplus or results of
operations of the Company and its subsidiaries, considered as a whole (“Material
Adverse Effect”), and do not materially interfere with the use made and proposed to be
made of such property by the Company or any Significant Subsidiary, and any material real
property and material buildings held under lease by the Company or any of its subsidiaries
are held under valid, subsisting and enforceable leases with such exceptions that do not
materially interfere with the use made and currently proposed to be made of such property
and buildings by the Company or any Significant Subsidiary.
(h) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Disclosure
Package and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws
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of each other jurisdiction in which its ownership or lease of property or the conduct
of its business requires such qualification and good standing, except to the extent that
the failure to be so qualified and in good standing would not have a Material Adverse
Effect; MLIC was duly converted from a mutual life insurance company to a stock life
insurance company on April 7, 2000 in accordance with the Plan of Reorganization of MLIC
under Section 7312 of the New York Insurance Law; each Significant Subsidiary is validly
existing as a corporation and is in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its properties and
conduct its business as described in the Disclosure Package; and each Significant
Subsidiary is duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which its ownership or
lease of property or the conduct of its business requires such qualification and good
standing, except to the extent that the failure to be so qualified and in good standing
would not have a Material Adverse Effect.
(i) The Company has the corporate power and authority to execute and deliver this
Agreement, the applicable Pricing Agreements, the applicable Securities Agreements and the
Securities and to consummate the transactions contemplated hereby and thereby.
(j) The Company has an authorized capitalization as set forth and described in the
Disclosure Package, and all of the issued shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable; none of the
outstanding shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the Company; except as
disclosed in the Disclosure Package, there are no outstanding options or warrants to
purchase, or any preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into or any contracts or commitments to sell shares
of the Company’s capital stock or any such options, rights, warrants, convertible
securities or obligations; the description of the Company’s stock option plans and the
options or other rights granted and exercised thereunder set forth in the Disclosure
Package accurately and fairly describe the information required to be shown with respect to
such plans, arrangements, options and rights; except as disclosed in the Disclosure
Package, there are no rights of any person, corporation or other entity to require
registration of any shares of common stock or any other securities of the Company in
connection with the filing of the Registration Statement and the issuance and sale of the
Securities to the Underwriters pursuant to this Agreement and the applicable Pricing
Agreements; all of the issued shares of capital stock or other ownership interests of MLIC
have been duly and validly authorized and issued, are fully paid and nonassessable and are
owned directly or indirectly by the Company free and clear of all liens, encumbrances,
equities or claims.
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(k) The Securities have been duly authorized and, when the Securities are issued and
delivered pursuant to this Agreement and the applicable Pricing Agreements, such Securities
will have been duly executed, authenticated, issued and delivered (assuming their due
authorization by the trustee and, in the case of Securities representing capital stock of
the Company, will be fully paid and nonassessable) and will constitute valid and legally
binding obligations of the Company, enforceable against the Company in accordance with
their terms, and will be entitled to the benefits provided by the applicable Securities
Agreements; such Securities Agreements have been duly authorized, executed and delivered by
the Company and, in the case of Securities issued pursuant to an Indenture, such Indenture
has been duly qualified under the Trust Indenture Act and, on the Closing Date for any
Securities, each Securities Agreement will constitute a valid and legally binding agreement
of the Company (assuming due execution and delivery by the trustee, where applicable),
enforceable against the Company in accordance with its terms, subject, as to enforcement,
bankruptcy, insolvency, fraudulent transfer, moratorium and other similar laws relating to
or affecting creditors’ rights generally and to general principles of equity; and the
Securities will be substantially in the form contemplated by the applicable Securities
Agreements, and the Securities and the applicable Securities Agreements conform in all
material respects to the descriptions thereof contained in the Disclosure Package and the
Final Prospectus.
(l) Each Significant Subsidiary that is required to be organized or licensed as an
insurance company in its jurisdiction of incorporation (each, an “Insurance
Subsidiary” and collectively, the “Insurance Subsidiaries”) is licensed as an
insurance company in its respective jurisdiction of incorporation and is duly licensed or
authorized as an insurer in each other jurisdiction where it is required to be so licensed
or authorized to conduct its business, in each case with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect; except as otherwise described
in the Disclosure Package, each Insurance Subsidiary has all other approvals, orders,
consents, authorizations, licenses, certificates, permits, registrations and qualifications
(collectively, the “Approvals”) of and from all insurance regulatory authorities to
conduct its business, with such exceptions as would not have, individually or in the
aggregate, a Material Adverse Effect; there is no pending or, to the knowledge of the
Company, threatened action, suit, proceeding or investigation that could reasonably be
expected to lead to any revocation, termination or suspension of any such Approval, the
revocation, termination or suspension of which would have, individually or in the
aggregate, a Material Adverse Effect; and, to the knowledge of the Company, no insurance
regulatory agency or body has issued any order or decree impairing, restricting or
prohibiting the payment of dividends by any Insurance Subsidiary to its parent which would
have, individually or in the aggregate, a Material Adverse Effect.
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(m) The Company and each Significant Subsidiary has all necessary Approvals of and
from, and has made all filings, registrations and declarations (collectively, the
“Filings”) with, all insurance regulatory authorities, all Federal, state, local
and other governmental authorities, all self-regulatory organizations and all courts and
other tribunals, which are necessary to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Disclosure Package,
except where the failure to have such Approvals or to make such Filings would not have,
individually or in the aggregate, a Material Adverse Effect; to the knowledge of the
Company, the Company and each Significant Subsidiary is in compliance with all applicable
laws, rules, regulations, orders, by-laws and similar requirements, including in connection
with registrations or memberships in self-regulatory organizations, and all such Approvals
and Filings are in full force and effect and neither the Company nor any Significant
Subsidiary has received any notice of any event, inquiry, investigation or proceeding that
would reasonably be expected to result in the suspension, revocation or limitation of any
such Approval or otherwise impose any limitation on the conduct of the business of the
Company or any Significant Subsidiary, except as described in the Disclosure Package or
except for any such non-compliance, suspension, revocation or limitation which would not
have, individually or in the aggregate, a Material Adverse Effect.
(n) Each Insurance Subsidiary is in compliance with and conducts its businesses in
conformity with all applicable insurance laws and regulations of its respective
jurisdiction of incorporation and the insurance laws and regulations of other jurisdictions
which are applicable to it, in each case with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect.
(o) Each Significant Subsidiary which is engaged in the business of acting as a
broker-dealer or an investment advisor (respectively, a “Broker-Dealer Subsidiary”
and an “Investment Advisor Subsidiary”) is duly licensed or registered as a
broker-dealer or investment advisor, as the case may be, in each jurisdiction where it is
required to be so licensed or registered to conduct its business, in each case, with such
exceptions as would not have, individually or in the aggregate, a Material Adverse Effect;
each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary has all other
necessary Approvals of and from all applicable regulatory authorities, including any
self-regulatory organization, to conduct its businesses, in each case with such exceptions,
as would not have, individually or in the aggregate, a Material Adverse Effect; except as
otherwise described in the Disclosure Package, none of the Broker-Dealer Subsidiaries or
Investment Advisor Subsidiaries has received any notification from any applicable
regulatory authority to the effect that any additional Approvals from such regulatory
authority are needed to be obtained by such subsidiary in any case where it could be
reasonably expected that (x) any of the Broker-Dealer
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Subsidiaries or Investment Advisor Subsidiaries would in fact be required either to
obtain any such additional Approvals or cease or otherwise limit engaging in a certain
business and (y) the failure to have such Approvals or limiting such business would
have a Material Adverse Effect; and each Broker-Dealer Subsidiary and each Investment
Advisor Subsidiary is in compliance with the requirements of the broker-dealer and
investment advisor laws and regulations of each jurisdiction which are applicable to such
subsidiary, and has filed all notices, reports, documents or other information required to
be filed thereunder, in each case with such exceptions as would not have, individually or
in the aggregate, a Material Adverse Effect.
(p) The issue and sale of the Securities pursuant to any Pricing Agreement, and
compliance by the Company with all of the provisions of the Securities, the applicable
Securities Agreements, this Agreement and any Pricing Agreement, and the consummation of
the transactions herein and therein contemplated, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, or other agreement or instrument to
which the Company or any Significant Subsidiary is a party or by which the Company or any
Significant Subsidiary is bound or to which any of the property or assets of the Company or
any Significant Subsidiary is subject, or which affects the validity, performance or
consummation of the transactions contemplated by this Agreement, nor will such action
result in any violation of any statute or any order, rule or regulation of any court or
insurance regulatory authority or other governmental agency or body having jurisdiction
over the Company or any Significant Subsidiary or any of their properties, in each case
other than such breaches, conflicts, violations, or defaults which individually or in the
aggregate, would not have a Material Adverse Effect and would not adversely affect the
validity or performance of the Company’s obligations under the Securities, the applicable
Securities Agreements, this Agreement and any Pricing Agreement; nor will such action
result in any violation of the provisions of the certificate of incorporation or by-laws or
other charter documents of the Company or any Significant Subsidiary; and no Approval of or
Filing with any such court or insurance regulatory authority or other governmental agency
or body is required for the issue or sale of the Securities, except, assuming the accuracy
of the Underwriters’ representation in Section 9 of this Agreement, (i) the
registration under the Act of the Securities which registration has become effective and
(ii) such Approvals or Filings as may be required under the Trust Indenture Act or
state securities or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters.
(q) Other than as set forth in the Disclosure Package, there are no legal or
governmental proceedings pending to which the Company or any of its
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subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is subject, challenging the transactions contemplated by this Agreement and
the applicable Pricing Agreements or which, if determined adversely to the Company or its
subsidiaries, could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or would materially and adversely affect the ability of the Company
to perform its obligations under the Securities Agreements or this Agreement; and, to the
knowledge of the Company, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others other than as set forth in the Disclosure
Package.
(r) Neither the Company nor any Significant Subsidiary is in violation of any of its
certificate of incorporation or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which it is a party or
by which it is bound or to which any of its property or assets is subject, which violation
or default would have, individually or in the aggregate, a Material Adverse Effect.
(s) The statements set forth in the Disclosure Package and the Final Prospectus under
the captions “Description of Debt Securities” and “Description of the Fixed Rate Senior
Notes,” insofar as they purport to constitute a summary of the terms of the Securities,
fairly summarize such terms in all material respects. The statements set forth in the
Disclosure Package and the Final Prospectus under the caption “Proposed Acquisition of the
Alico Business,” insofar as they purport to constitute a summary of the Stock Purchase
Agreement, dated March 7, 2010 (the “SPA”), among the Company, ALICO Holdings LLC,
a Delaware limited liability company, and American International Group, Inc., a Delaware
corporation, and related agreements in connection with the acquisition of American Life
Insurance Company and certain other companies (collectively, the “Acquired
Company”), fairly summarize such agreements in all material respects. The discussion
set forth in the Disclosure Package and the Final Prospectus under the caption “Certain
U.S. Federal Income Tax Considerations,” fairly summarizes in all material respects
(subject to the limitations and qualifications set forth therein) the material United
States federal income tax consequences of the acquisition, ownership and disposition of the
Securities.
(t) The financial statements of the Company and its consolidated subsidiaries included
or incorporated by reference in the Disclosure Package, together with the related schedules
and notes, comply in all material respects with the requirements of the Act and the
Exchange Act, as applicable, and present fairly in all material respects the financial
position, the results of operations and the changes in cash flows of such entities in
conformity with GAAP at the
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respective dates or for the respective periods to which they apply; and such financial
statements and related notes and schedules, if any, have been prepared in accordance with
GAAP consistently applied throughout the periods involved (for the avoidance of doubt, the
unaudited pro forma capsule financial information, together with the related disclosure set
forth in the Disclosure Package and the Final Prospectus under the caption “Summary —
Unaudited Pro Forma Capsule Financial Information” shall not be deemed the financial
statements of the Company and its consolidated subsidiaries); and the unaudited pro forma
capsule financial information, together with the related disclosure set forth in the
Disclosure Package and the Final Prospectus under the caption “Summary — Unaudited Pro
Forma Capsule Financial Information” has been compiled on the pro forma basis described
therein, and the assumptions used in the preparation thereof were reasonable at the time
made, and the adjustments used therein are based upon good faith estimates and assumptions
believed by the Company to be reasonable at the time made.
(u) Deloitte & Touche LLP, which has audited certain consolidated financial statements
of the Company and its subsidiaries, is an Independent Registered Public Accounting Firm as
required by the Act and the rules and regulations of the Commission thereunder.
(v) Neither the Company nor any Significant Subsidiary is, or after giving effect to
the issue and sale of the Securities pursuant to any Pricing Agreement will be, an
“investment company”, as such term is defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”), and the rules and regulations thereunder,
although certain separate accounts of MLIC and of certain Insurance Subsidiaries are
required to register as investment companies under the Investment Company Act.
(w) This Agreement and the applicable Pricing Agreements with respect to the
applicable Securities have been duly authorized, executed and delivered by the Company.
(x) None of the Company or its subsidiaries or, to the best of their knowledge, any of
their directors, officers or affiliates, has taken or will take, directly or indirectly,
any action designed to, or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Securities in violation of Regulation M
under the Exchange Act.
(y) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of
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financial reporting and the preparation of financial statements for external purposes
in accordance with generally accepted accounting principles. As disclosed in the Company’s
Annual Report on Form 10-K for the year ended December 31, 2009, the Company’s internal
control over financial reporting was effective as of December 31, 2009 and the Company is
not aware of any material weaknesses in its internal control over financial reporting.
(z) The Company and its consolidated subsidiaries employ disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that are
designed to ensure that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management, including its principal executive
officer or officers and principal financial officer or officers, as appropriate, to allow
timely decisions regarding disclosure. As disclosed in the Company’s Quarterly Report on
Form 10-Q for the quarter ended June 30, 2010, the Company’s disclosure controls and
procedures were effective as of June 30, 2010 and the Company is not aware of any material
weaknesses in its disclosure controls and procedures.
(aa) No stop order suspending the effectiveness of the Registration Statement has been
issued under the Act and the Registration Statement is not the subject of a pending
proceeding or examination under Section 8(d) or 8(e) of the Act, the Company is not the
subject of a pending proceedings under Section 8A of the Act in connection with the
offering of the Securities and any request on the part of the Commission for additional
information has been complied with.
(bb) Except as would not individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect: (1) all tax returns required to be filed by the
Company or any of its subsidiaries have been timely filed, (2) (x) all
taxes (whether imposed directly or through withholding) including any interest, fine, sales
and use taxes, all taxes which the Company and each of its subsidiaries is obligated to
withhold from amounts owing to employees, creditors and third parties with respect to the
period covered by such tax returns, additions to tax, or penalties applicable thereto due
or claimed to be due from such entities have been timely paid, and (y) no
deficiency assessment with respect to a proposed adjustment of the Company or its
subsidiaries’ federal, state, local or foreign taxes is pending or, to the best of the
Company or its subsidiaries’ knowledge, threatened, in each case of (x) and (y), other than
such taxes or adjustments that are being contested in good faith or for which adequate
reserves have been provided, and (3) to the Company and its subsidiaries’
knowledge, there is no tax lien, whether imposed by any federal, state, foreign or other
taxing authority,
13
outstanding against the assets, properties or business of the Company or its
subsidiaries.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Company agrees, as of the date hereof and as
of the Applicable Time, to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, as of the date hereof and as of the Applicable Time, to purchase from the Company, at the
purchase price set forth in Schedule III to the applicable Pricing Agreement, the principal amount
of the Securities set forth opposite such Underwriter’s name in Schedule I to the applicable
Pricing Agreement.
3. Delivery and Payment. Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent practicable, and in such
authorized denominations and registered in such names as the Representatives may request upon at
least forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the
Company to Deutsche Bank Securities Inc. and UBS Securities LLC for the account of such Underwriter
at the office, on the date and at the time specified in the applicable Pricing Agreement (or such
later date not later than five business days after such specified date as the Representatives shall
designate), which date and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of delivery and payment for the
Securities being herein called the “Closing Date”). Delivery of the Securities shall be
made to the Underwriters for the respective accounts of the several Underwriters against payment by
Deutsche Bank Securities Inc. and UBS Securities LLC of the purchase price thereof by wire transfer
of Federal (same-day) funds to the account specified by the Company or as otherwise set forth in
the applicable Pricing Agreement.
4. Company Covenants. The Company agrees with each of the Underwriters of any
Securities:
(a) To prepare the Final Prospectus as amended and supplemented in relation to the
applicable Securities in a form approved by the Representatives and to file timely such
Final Prospectus pursuant to Rule 424(b) under the Act; to make no further amendment or any
supplement to the Registration Statement or Final Prospectus as amended or supplemented
after the Applicable Time and prior to the Closing Date for such Securities unless the
Representatives for such Securities shall have had a reasonable opportunity to review and
comment upon any such amendment or supplement prior to any filing thereof; to advise the
Representatives, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any supplement to the
Final Prospectus or any amended Final Prospectus has been filed and to furnish the
Representatives with copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by
14
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in connection with the
offering or sale of such Securities and, during such same period, to advise the
Representatives, promptly after it receives notice thereof, of (i) the issuance by
the Commission of any stop order or of any order preventing or suspending the use of the
Final Prospectus, (ii) the suspension of the qualification of such Securities for
offering or sale in any jurisdiction or of the initiation or threatening of any proceeding
for any such purpose, or (iii) any request by the Commission for the amending or
supplementing of the Registration Statement or Final Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order preventing
or suspending the use of the Final Prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) To give the Representatives notice of any filings made pursuant to the Exchange
Act or the regulations of the Commission thereunder within forty-eight hours prior to the
Applicable Time; to give the Representatives notice of its intention to make any such
filing from the Applicable Time to the Closing Date and to furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such proposed filing.
The Company shall prepare the Final Term Sheet and file such Final Term Sheet as an Issuer
Free Writing Prospectus within two business days after the date hereof; provided that the
Company shall furnish the Representatives with copies of any such Final Term Sheet a
reasonable amount of time prior to such proposed filing and will not use or file any such
document to which the Representatives or counsel to the Representatives shall object;
(c) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify such Securities for offering and sale under the securities
laws of such jurisdictions as the Representatives may reasonably request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for so long as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation, to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise subject;
(d) To furnish to the Representatives a copy of each proposed Issuer Free Writing
Prospectus prepared by or on behalf of, used by, or referred to by the Company and not to
use or refer to any proposed Issuer Free Writing Prospectus to which the Representatives
reasonably object; if at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted
15
or would conflict with the information contained in the Registration Statement, the
Disclosure Package, the Final Prospectus or any Preliminary Prospectus, to promptly notify
the Representatives and, if requested by the Representatives, to promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict; provided, however, that this covenant shall not apply to any statements or
omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter expressly for use
therein;
(e) To furnish the Underwriters with copies of any Issuer Free Writing Prospectus or
the Final Prospectus in such quantities as the Representatives may from time to time
reasonably request, and if, at any time prior to the earlier of (i) the completion
of the initial distribution by each of the Underwriters of the Securities purchased by such
Underwriter under this Agreement or (ii) the expiration of nine months after the
date of the Final Prospectus, any event shall have occurred as a result of which any Issuer
Free Writing Prospectus or the Final Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made when such Issuer Free Writing Prospectus or the Final Prospectus were delivered,
not misleading, or, if for any other reason it shall be necessary during such period to
amend or supplement any Issuer Free Writing Prospectus or the Final Prospectus or to file
under the Exchange Act any document incorporated by reference in any Issuer Free Writing
Prospectus or the Final Prospectus in order to comply with the Act or the Exchange Act,
(i) to notify the Representatives and (ii) upon their request to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of an amended Issuer
Free Writing Prospectus or a supplement to the Final Prospectus which will correct such
statement or omission or effect such compliance; and any Issuer Free Writing Prospectus and
the Final Prospectus and any amendments or supplements thereto furnished to the
Representatives shall be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T;
(f) To make generally available to securityholders of the Company as soon as
practicable, but in any event not later than eighteen months after the effective date of
the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement
of the Company and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations thereunder (including, at the option of the
Company, Rule 158);
16
(g) During the period beginning from the Applicable Time and continuing to and
including the Closing Date for such Securities, not to offer, sell, contract to offer or
sell or otherwise dispose of any debt securities of the Company having pricing
characteristics similar to the Securities, except, for the avoidance of doubt, debt
securities issued under the Global Medium Term Note Program of Metropolitan Life Global
Funding I, Euro Medium Term Note Program of MetLife Institutional Funding I, LLC, or any
commercial paper program of, or sponsored by, the Company or any subsidiaries, exceeding an
aggregate principal amount of $3 billion without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld.
(h) During a period of five years from the effective date of the Registration
Statement, to furnish to the Representatives copies of all reports or other communications
(financial or other) furnished to stockholders of the Company, and to furnish to the
Representatives as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities exchange on
which the Securities or any class of securities of the Company is listed (such financial
statements to be on a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally or to the
Commission), provided that reports and financial statements furnished to or filed with the
Commission, and publicly available on XXXXX, or furnished on the Company’s website, shall
be deemed to have been furnished to the Representatives under this Section 4(h); and
(i) The Company agrees that, unless it obtains the prior consent of the
Representatives, and each Underwriter represents and agrees that, unless it obtains the
prior consent of the Company and the Representatives, it has not made and will not make any
offer relating to the Securities that would constitute an Issuer Free Writing Prospectus
(other than, for the avoidance of doubt, any Bloomberg L.P. or other electronic
communication regarding any preliminary term sheets or comparable bond prices and the Final
Term Sheet filed pursuant to Section 4(b) hereto). Each Underwriter agrees, unless it
obtains the prior consent of the Company and the Representatives, not to take any action
that would result in the Company being required to file with the Commission under Rule
433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter
that otherwise would not be required to be filed by the Company thereunder but for the
action of such Underwriter (other than, for the avoidance of doubt, the Final Term Sheet
filed pursuant to Section 4(b) hereto).
5. Fees and Expenses. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of counsel and accountants to the Company in connection
17
with the registration of the Securities under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Final Prospectus and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing this Agreement, any Pricing Agreement, any
Securities Agreement, any Blue Sky Survey and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities laws and insurance
securities laws as provided in Section 4(c) hereof, including the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification and in connection with the
Blue Sky Survey; (iv) the filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, securing any required review by the Financial
Industry Regulatory Authority of the terms of the sale of the Securities; (v) any fees
charged by securities rating services for rating the Securities; (vi) the cost of preparing
the Securities; (vii) the fees and expenses of any trustee, paying agent or transfer agent
and the fees and disbursements of counsel for any such trustee, paying agent or transfer agent in
connection with a Securities Agreement and the Securities issued pursuant to any Securities
Agreement; (viii) any travel expenses of the Company’s officers and employees and any other
expenses of the Company in connection with attending or hosting meetings with prospective
purchasers of the Securities; and (ix) all other costs and expenses incident to the
performance of the obligations of the Company hereunder which are not otherwise specifically
provided for in this Section. Except as provided in this Section, and Sections 7 and 10 hereof,
the Underwriters will pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Securities by them and any advertising expenses
connected with any offers of the Securities that they may make.
6. Conditions to Underwriters’ Obligations. The obligations of the Underwriters of
any Securities under the Pricing Agreement relating to such Securities shall be subject, in their
discretion, to the condition that all representations and warranties and other statements of the
Company herein or in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof are, at and as of the Closing Date true and correct,
the condition that the Company shall have performed all of its obligations hereunder and under the
Pricing Agreement relating to such Securities to be performed at or before the Closing Date, and
the following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 4(a) hereof; the Final
Term Sheet shall have been filed with the Commission pursuant to Rule 433(d); no stop order
suspending the
18
effectiveness of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the Commission shall
have been complied with to the Representatives’ reasonable satisfaction;
(b) Debevoise & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to
the Underwriters such written opinion or opinions, dated such Closing Date, with respect to
the incorporation of the Company, the validity of the Securities being delivered on such
Closing Date, the Registration Statement and the Final Prospectus, and such other related
matters as the Underwriters may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxxxx Xxxxxxxxx, Chief Counsel-Public Company and Corporate Law, of the Company,
shall have furnished to the Underwriters his written opinion, dated the Closing Date,
substantially in the form attached hereto as Annex II;
(d) Xxxxx & XxXxxxx LLP, counsel for the Company, shall have furnished to the
Underwriters their written opinions, each dated the Closing Date, in form and substance
substantially in the form attached hereto as Annex III-A with respect to certain corporate
and tax matters, and Annex III-B with respect to the Registration Statement, Disclosure
Package and the Final Prospectus;
(e) The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably request,
including, but not limited to, a certificate of the Chief Accounting Officer of the
Company, dated as of the Closing Date, substantially in the form of Annex IV hereto;
(f) The Company will furnish the Representatives a certificate of the Chief Accounting
Officer of the Company, dated as of the Closing Date, relating to the unaudited capsule pro
forma financial information set forth in the Disclosure Package, together with the related
disclosure set forth in the Disclosure Package and the Final Prospectus under the caption
“Summary — Unaudited Pro Forma Capsule Financial Information,” substantially in the form of
Annex V hereto;
(g) (i) On the date hereof, Deloitte & Touche LLP shall have furnished to the
Representatives a letter, dated the date hereof, in form and substance reasonably
satisfactory to you, confirming that they are independent registered public accountants
with respect to the Company and the Company’s subsidiaries
19
within the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder, and further to the effect set forth in Annex VI
hereto, and (ii) on the Closing Date for the applicable Securities, Deloitte &
Touche LLP shall have furnished to the Representatives a letter, dated the date of delivery
thereof, in form and substance reasonably satisfactory to you, that reaffirms the
statements made in the letter furnished pursuant to subclause (i) of this Section 6(g),
except that the specified date referred to shall be a date not more than three business
days prior to the Closing Date;
(h) (i) On the date hereof, PricewaterhouseCoopers LLP shall have furnished to
the Representatives a letter, dated the date hereof, in form and substance reasonably
satisfactory to you, confirming that they are independent registered public accountants
with respect to the Acquired Company and the Acquired Company’s subsidiaries within the
meaning of the Act and the Exchange Act and the respective applicable published rules and
regulations thereunder, and further to the effect set forth in Annex VII hereto, and
(ii) on the Closing Date for the applicable Securities, PricewaterhouseCoopers LLP
shall have furnished to the Representatives a letter, dated the date of delivery thereof,
in form and substance reasonably satisfactory to you, that reaffirms the statements made in
the letter furnished pursuant to subclause (i) of this Section 6(h), except that the
specified date referred to shall be a date not more than three business days prior to the
Closing Date;
(i) Neither the Company nor any Significant Subsidiary shall have sustained
(i) since the date of the latest audited financial statements included or
incorporated by reference in the Disclosure Package any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Disclosure Package and (ii)
since the respective dates as of which information is given in the Disclosure Package,
there shall not have been any change in the surplus of any Significant Subsidiary or the
capital stock of the Company or any increase in the long-term debt of the Company and its
respective subsidiaries considered as a whole, or any change, or any development involving
a prospective change, in or affecting the business, financial position, stockholders’
equity or results of operations of the Company and the Significant Subsidiaries considered
as a whole, otherwise than as set forth or contemplated in the Disclosure Package, the
effect of which, in any such case described in clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable or inadvisable to
proceed with the offering or the delivery of the applicable Securities on the terms and in
the manner contemplated in the Final Prospectus;
20
(j) After the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the debt securities of the Company or any Significant Subsidiary or the
financial strength or claims paying ability of the Company or any Significant Subsidiary by
A.M. Best & Co., Fitch Ratings, Ltd., Xxxxx’x Investors Service, Inc. or Standard & Poor’s
Ratings Services, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, or shall have
given notice of any intended or potential downgrading of, its rating of any debt security
or the financial strength or the claims paying ability of the Company or any Significant
Subsidiary, the effect of which, in any such case described in clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the applicable Securities on
the terms and in the manner contemplated in the Final Prospectus;
(k) At or after the Applicable Time, there shall not have occurred any of the
following: (i) a change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in the reasonable
judgment of the Representatives, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the applicable Securities, whether in the primary
market or in respect of dealings in the secondary market; (ii) a suspension or
material limitation in trading in securities generally on the New York Stock Exchange;
(iii) a suspension or material limitation in trading in the Company’s securities on
the New York Stock Exchange; (iv) a suspension or material limitation in clearing
and/or settlement in securities generally; (v) a general moratorium on commercial
banking activities declared by either Federal or New York State authorities; or
(vi) the material outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war or any other
national or international calamity or emergency (including without limitation as a result
of an act of terrorism) if the effect of any such event specified in this clause (vi) in
the judgment of the Representatives makes it impracticable or inadvisable to proceed with
the offering or the delivery of the applicable Securities on the terms and in the manner
contemplated in the Final Prospectus;
(l) The Company shall have complied with any request by the Representatives with
respect to the furnishing of copies of the Final Prospectus in compliance with the
provisions of Section 4(e) hereof; and
(m) At the Closing Date, the Representatives shall have received a certificate of the
Company, dated as of the Closing Date, to the effect that (i) the representations
and warranties of the Company contained in Section 1 hereof are true and correct in all
respects with the same force and effect as though expressly
21
made at and as of Closing Date and (ii) the Company has complied in all
respects with all agreements and all conditions on its part to be performed under this
Agreement at or prior to the Closing Date.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
contained in (i) the Registration Statement or any amendment or supplement (when considered
together with the document to which such supplement relates) thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) any Preliminary
Prospectus, Pricing Prospectus, any Issuer Free Writing Prospectus or the Final Prospectus, or any
amendment or supplement (when considered together with the document to which such supplement
relates) thereto, or any “issuer information” filed or required to be filed pursuant to Rule 433(d)
under the Act, or arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability (or action in respect thereof) arises out of
or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any Issuer Free Writing Prospectus, Pricing Prospectus, the
Registration Statement or the Final Prospectus, or any such amendment or supplement(s) in reliance
upon and in conformity with written information furnished to the Company by any Underwriter of the
applicable Securities through the Representatives expressly for use therein.
(b) Each Underwriter will, severally and not jointly, indemnify and hold harmless the Company,
its directors and officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities (or actions in respect thereof) to which the
Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary Prospectus, any Issuer
Free Writing
22
Prospectus, Pricing Prospectus, the Registration Statement, or the Final Prospectus, or any
amendment or supplement (when considered together with the document to which such supplement
relates) thereto, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus,
any Issuer Free Writing Prospectus, Pricing Prospectus, the Registration Statement, the Final
Prospectus or any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the Representatives expressly for
use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; the omission so to notify the indemnifying party shall relieve
it from any liability which it may have to any indemnified party under such subsection, to the
extent the indemnifying party is actually materially prejudiced by such omission. In case any such
action shall be brought against any indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the indemnifying party
or any other indemnified party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation, unless (i) the
indemnifying party and such indemnified party shall have mutually agreed to the contrary,
(ii) the indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to such indemnified party or (iii) the named parties in any such
proceeding (including any impleaded parties) include both the indemnifying party and such
indemnified party and representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. No indemnifying party shall, without the
prior written consent of the indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such settlement, compromise
or judgment (i) includes an unconditional
23
release of the indemnified party from all liability arising out of such action or claim and
(ii) does not include a statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of any indemnified party. In no event shall the indemnifying party be
liable for fees and expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the same allegations or
circumstances.
(d) If the indemnification provided for in this Section 7 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, other than due
to the express provisions thereof, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from the offering of the
applicable Securities to which any such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law, then each indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and the Underwriters
of the applicable Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Final Prospectus relating to the applicable Securities.
The relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of
24
this subsection (d), no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the applicable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters of the applicable
Securities in this subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 7 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act. The obligations of the
Underwriters under this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent, is named in the
Registration Statement as about to become a director of the Company) and to each person, if any,
who controls the Company within the meaning of the Act.
8. Defaulting Underwriters.
(a) If any Underwriter shall default in its obligation to purchase the Securities which it has
agreed to purchase under the Pricing Agreement relating to such Securities, the Representatives may
in their discretion arrange for themselves or another party or other parties to purchase such
Securities on the terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase such Securities on such
terms. In the event that, within the respective prescribed periods, the Representatives notify the
Company that the Representatives have so arranged for the purchase of such Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of such Securities,
the Representatives or the Company shall have the right to postpone the Closing Date for such
Securities for a period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement, the Disclosure Package or the Final
Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement, the Disclosure Package or the
Final Prospectus which in the opinion of the Representatives may thereby be made necessary. The
term “Underwriter” as used in this Agreement shall include any person substituted under this
Section with
25
like effect as if such person had originally been a party to the Pricing Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of any
defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of shares of such Securities or the aggregate principal
amount of such Securities, as applicable, which remains unpurchased does not exceed ten percent of
the aggregate number of shares of such Securities or the aggregate principal amount of the
Securities, as applicable, to be purchased on such Closing Date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the aggregate number of shares of such
Securities or the aggregate principal amount of Securities, as applicable, which such Underwriter
agreed to purchase under the Pricing Agreement relating to such Securities and, in addition, to
require each nondefaulting Underwriter to purchase its pro rata share (based on the aggregate
number of shares of such Securities or the aggregate principal amount of Securities, as applicable,
which such Underwriter agreed to purchase under such Pricing Agreement) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of shares of such Securities or the aggregate principal
amount of such Securities, as applicable, which remains unpurchased exceeds ten percent of the
aggregate number of shares of such Securities or the aggregate principal amount of such Securities,
as applicable, as referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such
Securities shall thereupon terminate, without liability on the part of any nondefaulting
Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters
as provided in Section 5 hereof and the indemnity and contribution agreements in Section 7 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability for its default.
9. Offering Restrictions. Each Underwriter acknowledges, represents and agrees that
it has not offered, sold or delivered and it will not offer, sell or deliver, any of the
Securities, in or from any jurisdiction except under circumstances that are reasonably designed to
result in compliance with the applicable securities laws and regulations thereof. In particular,
each Underwriter acknowledges, represents and agrees as set forth in Annex VIII to this Agreement.
10. Survival. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this
26
Agreement, shall remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, the Company or any officer or director or controlling person of the
Company and shall survive delivery of and payment for the Securities.
11. Effect of Termination of Pricing Agreement or Nondelivery of Securities. If any
Pricing Agreement shall be terminated pursuant to Section 8 hereof, the Company shall not then be
under any liability to any Underwriter with respect to the Securities covered by such Pricing
Agreement except as provided in Section 5 and Section 7 hereof; but, if for any other reason,
Securities are not delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket expenses, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations
for the purchase, sale and delivery of such Securities, but the Company shall then be under no
further liability to any Underwriter in respect of such Securities except as provided in Section 5
and Section 7 hereof.
12. Reliance upon Representatives. In all dealings hereunder, the Representatives
shall act on behalf of the Underwriters of Securities and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or
given by such of the Representatives, if any, as may be designated for such purpose in the
applicable Pricing Agreements.
13. Notices. All statements, requests, notices and agreements hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication; notices to the Underwriters shall be directed to the address of the
respective Representatives as set forth in the applicable Pricing Agreements with a copy to
(i) Debevoise & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of
Xxxxx X. Xxxxxxxx, Esq.; if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration Statement, Attention:
General Counsel, with a copy to Xxxxx & XxXxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000, attention Xxxx X. Xxxxxxxxx, Esq. and Xxxxxxxx Nicenko, Esq. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
14. Successors and Assigns. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the Company, and, to the extent
provided in Sections 7 and 9 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue of
this Agreement or any such Pricing Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
27
15. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
16. Consent to Jurisdiction. The Company agrees that any legal suit, action or
proceeding against the Company brought by any Underwriter or by any person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
arising out of or based upon this Agreement or the transactions contemplated hereby may be
instituted in any state or federal court in the Borough of Manhattan, The City of New York, New
York, and, to the fullest extent permitted by applicable law, waives any objection which it may now
or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding.
17. Counterparts. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute one and the same
instrument.
18. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that
(a) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with any offering
contemplated by this Agreement and any Pricing Agreement and the process leading to any such
transaction each Underwriter is and has been acting solely as a principal and is not the agent or
fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c)
no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the
Company with respect to any such offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising the Company on other
matters) and no Underwriter has any obligation to the Company with respect to such offering
contemplated hereby except the obligations expressly set forth in this Agreement and any relevant
Pricing Agreement, (d) the Underwriters and their respective affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Company,
(e) the Company agrees that it will not claim that the Underwriters, or any of them, has
rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto and (f) the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory
and tax advisors to the extent it deemed appropriate.
28
19. Entire Agreement. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the Underwriters, or any of them,
with respect to the subject matter hereof.
20. Waiver of Jury Trial. The Company and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby.
[Signature pages follow]
29
Very truly yours, METLIFE, INC. |
||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Senior Vice President and Treasurer | |||
[Signature page to Fixed Rate Senior Notes Underwriting Agreement]
Accepted as of the date hereof on behalf of each of the Underwriters: |
||||
DEUTSCHE BANK SECURITIES INC. | ||||
By: |
/s/ Xxxx Xxxxx | |||
Title: Managing Director | ||||
By: |
/s/ Xxxx Xxxxxxxxx | |||
Title: Director |
[Signature page to Fixed Rate Senior Notes Underwriting Agreement]
UBS SECURITIES LLC | ||||
By: |
/s/ Xxxxxx Xxxxxx | |||
Title: Managing Director | ||||
By: |
/s/ Xxxxxxxxx Xxxxxxxxx | |||
Title: Executive Director |
[Signature page to Fixed Rate Senior Notes Underwriting Agreement]
BANC OF AMERICA SECURITIES LLC | ||||
By: |
/s/ Xxxx Xxxxxx | |||
Title: Managing Director |
[Signature page to Fixed Rate Senior Notes Underwriting Agreement]
CREDIT SUISSE SECURITIES (USA) LLC | ||||
By: |
/s/ Xxxxxxx Xxxxxx | |||
Title: Managing Director |
[Signature page to Fixed Rate Senior Notes Underwriting Agreement]
HSBC SECURITIES (USA) INC. | ||||
By: |
/s/ Xxxxx X. Xxxxx | |||
Title: Senior Vice President |
[Signature page to Fixed Rate Senior Notes Underwriting Agreement]
XXXXX FARGO SECURITIES, LLC | ||||
By: |
/s/ Xxxxxxx Xxxxxx | |||
Title: Director |
[Signature page to Fixed Rate Senior Notes Underwriting Agreement]
SCHEDULE 1
TO UNDERWRITING AGREEMENT
Issuer Free Writing Prospectuses included in the Disclosure Package:
Issuer Free Writing Prospectus containing the final term sheet filed by the Company with the Commission dated August 3, 2010.
SCHEDULE 2
TO UNDERWRITING AGREEMENT
Issuer Free Writing Prospectuses not included in the Disclosure Package:
1. | Electronic road show presentation made available on XxxXxxxxxxx.xxx. |
2. | Issuer Free Writing Prospectus dated August 2, 2010 containing an article concerning the Chairman of the Board, President and Chief Executive Officer of the Company and the Company published by the Wall Street Journal. |
ANNEX I
PRICING AGREEMENT
August 3, 2010
Deutsche Bank Securities Inc.
UBS Securities LLC
Banc of America Securities LLC
Credit Suisse Securities (USA) LLC
HSBC Securities (USA) Inc.
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
named in Schedule I hereto
UBS Securities LLC
Banc of America Securities LLC
Credit Suisse Securities (USA) LLC
HSBC Securities (USA) Inc.
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
named in Schedule I hereto
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
MetLife, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms
and conditions stated herein (this “Agreement”) and in the Underwriting Agreement, dated
August 3, 2010 (the “Underwriting Agreement”), to issue and sell to the Underwriters named
in Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto
(the “Underwritten Securities”).
Each of the provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this Agreement, the
Applicable Time and the Closing Date. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Each reference to Securities Agreement shall be deemed to refer to the Indenture, dated as of
November 9, 2001 between MetLife, Inc. and Bank One Trust Company, N.A. (predecessor to The Bank of
New York Mellon Trust Company, National Association) (the “Senior Indenture”) and the
Sixteenth Supplemental Indenture, the Seventeenth Supplemental Indenture and the Eighteenth
Supplemental Indenture, each to be dated as of August 6, 2010, between MetLife, Inc. and The Bank
of New York Mellon Trust Company, National Association). Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined. The Representatives
I-1
designated to act on behalf of the Representatives and on behalf of each of the Underwriters
of the Securities pursuant to the Underwriting Agreement and the address of the Representatives are
set forth at the end of Schedule II hereto.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to issue, sell and deliver to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the authority of the signers
thereof.
[Signature pages follow]
I-2
Very truly yours,
|
||||
By: | ||||
Name: | ||||
Title: | ||||
[Signature page to Fixed Rate Senior Notes Pricing Agreement]
Accepted as of the date hereof | ||||
on behalf of each of the Underwriters: | ||||
DEUTSCHE BANK SECURITIES INC. | ||||
By: |
||||
Title: | ||||
By: |
||||
Title: |
[Signature page to Fixed Rate Senior Notes Pricing Agreement]
UBS SECURITIES LLC | ||||
By: |
||||
Title: | ||||
By: |
||||
Title: |
[Signature page to Fixed Rate Senior Notes Pricing Agreement]
BANC OF AMERICA SECURITIES LLC | ||||
By: |
||||
Title: |
[Signature page to Fixed Rate Senior Notes Pricing Agreement]
CREDIT SUISSE SECURITIES (USA) LLC | ||||
By: |
||||
Title: |
[Signature page to Fixed Rate Senior Notes Pricing Agreement]
HSBC SECURITIES (USA) INC. | ||||
By: |
||||
Title: |
[Signature page to Fixed Rate Senior Notes Pricing Agreement]
XXXXX FARGO SECURITIES, LLC | ||||
By: |
||||
Title: |
[Signature page to Fixed Rate Senior Notes Pricing Agreement]
SCHEDULE I
TO PRICING AGREEMENT
TO PRICING AGREEMENT
Principal Amount of | Principal Amount of | Principal Amount of | ||||||||||
$1,000,000,000 2.375% | $1,000,000,000 4.750% | $750,000,000 5.875% | ||||||||||
Senior Notes due 2014 to | Senior Notes due 2021 to | Senior Notes due 2041 | ||||||||||
Underwriters | be Purchased | be Purchased | be Purchased | |||||||||
Deutsche Bank Securities Inc. |
$ | 126,000,000 | $ | 126,000,000 | $ | 94,500,000 | ||||||
UBS Securities LLC |
$ | 126,000,000 | $ | 126,000,000 | $ | 94,500,000 | ||||||
Banc of America Securities LLC |
$ | 126,000,000 | $ | 126,000,000 | $ | 94,500,000 | ||||||
HSBC Securities (USA) Inc. |
$ | 126,000,000 | $ | 126,000,000 | $ | 94,500,000 | ||||||
Xxxxx Fargo Securities, LLC |
$ | 126,000,000 | $ | 126,000,000 | $ | 94,500,000 | ||||||
Credit Suisse Securities (USA) LLC |
$ | 63,000,000 | $ | 63,000,000 | $ | 47,250,000 | ||||||
BNP Paribas Securities Corp. |
$ | 21,750,000 | $ | 21,750,000 | $ | 16,350,000 | ||||||
Credit Agricole Securities (USA) Inc. |
$ | 21,750,000 | $ | 21,750,000 | $ | 16,350,000 | ||||||
RBS Securities Inc. |
$ | 21,750,000 | $ | 21,750,000 | $ | 16,275,000 | ||||||
SG Americas Securities, LLC |
$ | 21,750,000 | $ | 21,750,000 | $ | 16,275,000 | ||||||
PNC Capital Markets LLC |
$ | 15,000,000 | $ | 15,000,000 | $ | 11,250,000 | ||||||
Scotia Capital (USA) Inc. |
$ | 15,000,000 | $ | 15,000,000 | $ | 11,250,000 | ||||||
Standard Chartered Bank |
$ | 15,000,000 | $ | 15,000,000 | $ | 11,250,000 | ||||||
Nikko Bank
(Luxembourg) S.A. |
$ | 15,000,000 | $ | 15,000,000 | $ | 11,250,000 | ||||||
UniCredit Capital Markets, Inc. |
$ | 15,000,000 | $ | 15,000,000 | $ | 11,250,000 | ||||||
U.S. Bank, National Association |
$ | 15,000,000 | $ | 15,000,000 | $ | 11,250,000 | ||||||
The Xxxxxxxx Capital Group, L.P. |
$ | 13,000,000 | $ | 13,000,000 | $ | 9,750,000 | ||||||
ANZ Securities, Inc. |
$ | 10,000,000 | $ | 10,000,000 | $ | 7,500,000 | ||||||
BNY Mellon Capital Markets, LLC |
$ | 10,000,000 | $ | 10,000,000 | $ | 7,500,000 | ||||||
Mitsubishi UFJ Securities (USA), Inc. |
$ | 10,000,000 | $ | 10,000,000 | $ | 7,500,000 | ||||||
Lloyds TSB Bank plc |
$ | 10,000,000 | $ | 10,000,000 | $ | 7,500,000 | ||||||
Commerz Markets LLC |
$ | 10,000,000 | $ | 10,000,000 | $ | 7,500,000 | ||||||
Xxxxxxx Xxxxx & Associates, Inc. |
$ | 10,000,000 | $ | 10,000,000 | $ | 7,500,000 | ||||||
Santander Investment Securities Inc. |
$ | 10,000,000 | $ | 10,000,000 | $ | 7,500,000 | ||||||
Loop Capital Markets LLC |
$ | 6,500,000 | $ | 6,500,000 | $ | 4,875,000 | ||||||
Xxxxxxxx Xxxxxx Van LLC |
$ | 6,250,000 | $ | 6,250,000 | $ | 4,725,000 | ||||||
Xxxxxxx Capital Markets, LLC |
$ | 6,250,000 | $ | 6,250,000 | $ | 4,725,000 | ||||||
Xxxxxx & Company |
$ | 6,250,000 | $ | 6,250,000 | $ | 4,650,000 | ||||||
Xxxxxx X.
Xxxxxxx & Company, Inc. |
$ | 6,250,000 | $ | 6,250,000 | $ | 4,650,000 | ||||||
Xxxxxx Xxxxxxx & Co., Inc. |
$ | 6,200,000 | $ | 6,200,000 | $ | 4,650,000 | ||||||
CastleOak Securities, L.P. |
$ | 3,100,000 | $ | 3,100,000 | $ | 2,325,000 | ||||||
MFR Securities, Inc. |
$ | 3,100,000 | $ | 3,100,000 | $ | 2,325,000 | ||||||
Xxxxxxxxx Capital Partners, LLC |
$ | 3,100,000 | $ | 3,100,000 | $ | 2,325,000 | ||||||
Total |
$ | 1,000,000,000 | $ | 1,000,000,000 | $ | 750,000,000 |
I-SI-1
SCHEDULE II
TO PRICING AGREEMENT
TO PRICING AGREEMENT
Filed pursuant to Rule 433
August 3, 2010
August 3, 2010
Relating to
Preliminary Prospectus Supplement dated August 3, 2010 to
Prospectus dated November 6, 2007
Registration Statement No. 333-147180
Preliminary Prospectus Supplement dated August 3, 2010 to
Prospectus dated November 6, 2007
Registration Statement No. 333-147180
![(METLIFE LOGO)](https://www.sec.gov/Archives/edgar/data/1099219/000095012310073439/y85858y8585801.gif)
$1,000,000,000 2.375% Senior Notes due 2014
$1,000,000,000 4.750% Senior Notes due 2021
$750,000,000 5.875% Senior Notes due 2041
Final Term Sheet
August 3, 2010
$1,000,000,000 4.750% Senior Notes due 2021
$750,000,000 5.875% Senior Notes due 2041
Final Term Sheet
August 3, 2010
2.375% Senior Notes due 2014
Issuer:
|
MetLife, Inc. (“Issuer”) | |
Securities:
|
2.375% Senior Notes due 2014 | |
Aggregate Principal Amount:
|
$1,000,000,000 | |
Price to the Public:
|
99.867% of principal amount plus accrued interest, if any, from August 6, 2010 | |
Gross Underwriting Discount:
|
0.20% | |
Proceeds to Issuer Before Expenses:
|
$996,670,000.00 | |
Maturity Date:
|
February 6, 2014 | |
Pricing Date:
|
August 3, 2010 | |
Settlement Date:
|
August 6, 2010 |
I-SII-1
Interest Payment Dates:
|
Semi-annually on February 6 and August 6 of each year | |
First Interest Payment Date:
|
February 6, 2011 | |
Anticipated Ratings*:
|
||
Coupon:
|
2.375% | |
Benchmark Treasury:
|
UST 1% due July 15, 2013 | |
Spread to Benchmark Treasury:
|
T + 162.5 bps | |
Benchmark Treasury Price and Yield:
|
$100-19+; 0.790% | |
Yield to Maturity:
|
2.415% | |
Denominations:
|
$100,000 and integral multiples of $1,000 in excess thereof | |
Ranking:
|
Senior Unsecured | |
Redemption:
|
The 2014 Senior Notes will be redeemable at MetLife, Inc.’s option, in whole or in part, at any time and from time to time at a redemption price equal to the greater of 100% of the principal amount to be redeemed plus accrued and unpaid interest to, but excluding, the date fixed for redemption and the Make-Whole Redemption Amount calculated as described in the preliminary prospectus supplement at the rate of T + 25 bps. | |
Special Mandatory Redemption:
|
If, for any reason, (i) the Acquisition is not completed on or prior to July 10, 2011, or (ii) the Stock Purchase Agreement is terminated on or prior to July 10, 2011, MetLife, Inc. will redeem all of the 2014 Senior Notes on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price. | |
“Special Mandatory Redemption Price” means 101% of the aggregate principal |
I-SII-2
amount of the 2014 Senior Notes together with accrued and unpaid interest to but excluding the Special Mandatory Redemption Date. | ||
“Special Mandatory Redemption Date” means the earlier to occur of (1) July 31, 2011 if the Acquisition has not been completed on or prior to July 10, 2011 or (2) the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the termination of the Stock Purchase Agreement. | ||
CUSIP/ISIN:
|
00000XXX0 / US59156RAW88 | |
Joint Book-Running Managers:
|
Banc of America Securities LLC Credit Suisse Securities (USA) LLC Deutsche Bank Securities Inc. HSBC Securities (USA) Inc. UBS Securities LLC Xxxxx Fargo Securities, LLC |
4.750% Senior Notes due 2021
Issuer:
|
MetLife, Inc. (“Issuer”) | |
Securities:
|
4.750% Senior Notes due 2021 | |
Aggregate Principal Amount:
|
$1,000,000,000 | |
Price to the Public:
|
99.975% of principal amount plus accrued interest, if any, from August 6, 2010 | |
Gross Underwriting Discount:
|
0.425% | |
Proceeds to Issuer Before Expenses:
|
$995,500,000.00 | |
Maturity Date:
|
February 8, 2021 | |
Pricing Date:
|
August 3, 2010 |
I-SII-3
Settlement Date:
|
August 6, 2010 | |
Interest Payment Dates:
|
Semi-annually on February 8 and August 8 of each year | |
First Interest Payment Date:
|
February 8, 2011 | |
Anticipated Ratings*:
|
||
Coupon:
|
4.750% | |
Benchmark Treasury:
|
UST 3.5% due May 15, 2020 | |
Spread to Benchmark Treasury:
|
T + 185 bps | |
Benchmark Treasury Price and Yield:
|
$105-01+; 2.903% | |
Yield to Maturity:
|
4.753% | |
Denominations:
|
$100,000 and integral multiples of $1,000 in excess thereof | |
Ranking:
|
Senior Unsecured | |
Redemption:
|
The 2021 Senior Notes will be redeemable at MetLife, Inc.’s option, in whole or in part, at any time and from time to time at a redemption price equal to the greater of 100% of the principal amount to be redeemed plus accrued and unpaid interest to, but excluding, the date fixed for redemption and the Make-Whole Redemption Amount calculated as described in the preliminary prospectus supplement at the rate of T + 25 bps. | |
Special Mandatory Redemption:
|
If, for any reason, (i) the Acquisition is not completed on or prior to July 10, 2011, or (ii) the Stock Purchase Agreement is terminated on or prior to July 10, 2011, MetLife, Inc. will redeem all of the 2021 Senior Notes on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price. |
I-SII-4
“Special Mandatory Redemption Price”
means 101% of the aggregate principal
amount of the 2021 Senior Notes
together with accrued and unpaid
interest to but excluding the Special
Mandatory Redemption Date. “Special Mandatory Redemption Date” means the earlier to occur of (1) July 31, 2011 if the Acquisition has not been completed on or prior to July 10, 2011 or (2) the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the termination of the Stock Purchase Agreement. |
||
CUSIP/ISIN:
|
00000XXX0 / US59156RAX61 | |
Joint Book-Running Managers:
|
Banc of America Securities LLC Credit Suisse Securities (USA) LLC Deutsche Bank Securities Inc. HSBC Securities (USA) Inc. UBS Securities LLC Xxxxx Fargo Securities, LLC |
5.875% Senior Notes due 2041
Issuer:
|
MetLife, Inc. (“Issuer”) | |
Securities:
|
5.875% Senior Notes due 2041 | |
Aggregate Principal Amount:
|
$750,000,000 | |
Price to the Public:
|
98.494% of principal amount plus accrued interest, if any, from August 6, 2010 | |
Gross Underwriting Discount:
|
0.875% | |
Proceeds to Issuer Before Expenses:
|
$732,142,500.00 | |
Maturity Date:
|
February 6, 2041 |
I-SII-5
Pricing Date:
|
August 3, 2010 | |
Settlement Date:
|
August 6, 2010 | |
Interest Payment Dates:
|
Semi-annually on February 6 and August 6 of each year | |
First Interest Payment Date:
|
February 6, 2011 | |
Anticipated Ratings*:
|
||
Coupon:
|
5.875% | |
Benchmark Treasury:
|
UST 4.625% due February 15, 2040 | |
Spread to Benchmark Treasury:
|
T + 195 bps | |
Benchmark Treasury Price and Yield:
|
$110-05+; 4.033% | |
Yield to Maturity:
|
5.983% | |
Denominations:
|
$100,000 and integral multiples of $1,000 in excess thereof | |
Ranking:
|
Senior Unsecured | |
Redemption:
|
The 2041 Senior Notes will be redeemable at MetLife, Inc.’s option, in whole or in part, at any time and from time to time at a redemption price equal to the greater of 100% of the principal amount to be redeemed plus accrued and unpaid interest to, but excluding, the date fixed for redemption and the Make-Whole Redemption Amount calculated as described in the preliminary prospectus supplement at the rate of T + 30 bps. | |
Special Mandatory Redemption:
|
If, for any reason, (i) the Acquisition is not completed on or prior to July 10, 2011, or (ii) the Stock Purchase Agreement is terminated on or prior to July 10, 2011, MetLife, Inc. will redeem all of the 2041 Senior Notes on the Special Mandatory Redemption Date at the Special Mandatory |
I-SII-6
Redemption Price. “Special Mandatory Redemption Price” means 101% of the aggregate principal amount of the 2041 Senior Notes together with accrued and unpaid interest to but excluding the Special Mandatory Redemption Date. |
||
“Special Mandatory Redemption Date” means the earlier to occur of (1) July 31, 2011 if the Acquisition has not been completed on or prior to July 10, 2011 or (2) the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the termination of the Stock Purchase Agreement. | ||
CUSIP/ISIN:
|
00000XXX0 / US59156RAY45 | |
Joint Book-Running Managers:
|
Banc of America Securities LLC Credit Suisse Securities (USA) LLC Deutsche Bank Securities Inc. HSBC Securities (USA) Inc. UBS Securities LLC Xxxxx Fargo Securities, LLC |
The underwriters have agreed to reimburse MetLife for
approximately $562,500 of the Issuer’s expenses
relating to the offering.
* | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. The anticipated securities ratings have been omitted from this document following the repeal of Rule 436(g) under the Securities Act of 1933, as amended. |
The Issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the Issuer has filed with the SEC for more complete
information about the Issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the Issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it
I-SII-7
by calling Deutsche Bank Securities Inc. toll free at (000) 000-0000 or UBS Securities LLC toll
free at (000) 000-0000, ext. 561-3884.
I-SII-8
SCHEDULE III
TO PRICING AGREEMENT
TO PRICING AGREEMENT
Underwriters Purchase Price of 2.375% Senior Notes due 2014: 99.667% of the principal amount thereof |
||||
Underwriters Purchase Price of 4.750% Senior Notes due 2021: 99.550% of the principal amount thereof |
||||
Underwriters Purchase Price of 5.875% Senior Notes due 2041: 97.619% of the principal amount thereof |
I-SIII-1
ANNEX II
XXXXXXX XXXXXXXXX OPINION
II-1
ANNEX III
XXXXX & XXXXXXX LLP OPINIONS
ANNEX III-A: OPINION
III-A-1
ANNEX III-B: NEGATIVE ASSURANCE LETTER
III-B-1
ANNEX IV
METLIFE, INC. CHIEF ACCOUNTING OFFICER CERTIFICATE
IV-1
ANNEX V
METLIFE, INC. CHIEF ACCOUNTING OFFICER CERTIFICATE
V-1
ANNEX VI
DELOITTE & TOUCHE LLP COMFORT LETTER
VI-1
ANNEX VII
PRICEWATERHOUSECOOPERS LLP COMFORT LETTER
XXX-0
XXXXX XXXX
XXXXXXXX XXXXXXXXXXXX
Xxxxxx Xxxxxx
The Fixed Rate Senior Notes may not be acquired or held by any person who is an employee
benefit plan or other plan or arrangement subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Code, or who is acting on behalf
of or investing the assets of any such plan or arrangement, unless the acquisition and holding of
the Fixed Rate Senior Notes by such person will not result in a non-exempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code.
European Economic Area
In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a “Relevant Member State”) an offer to the public of any Fixed Rate
Senior Notes which are the subject of the offering contemplated by this prospectus supplement may
not be made in that Relevant Member State, except that an offer to the public in that Relevant
Member State of any Fixed Rate Senior Notes may be made at any time under the following exemptions
under the Prospectus Directive, if they have been implemented in that Relevant Member State:
(a) to legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely to invest
in securities;
(b) to any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its
last annual or consolidated accounts;
(c) by the underwriters to fewer than 100 natural or legal persons (other than
“qualified investors” as defined in the Prospectus Directive) subject to obtaining the
prior consent of the representatives for any such offer; or
(d) in any other circumstances falling within Article 3(2) of the Prospectus
Directive;
provided that no such offer of Fixed Rate Senior Notes shall result in a requirement for the
publication by MetLife, Inc. or any representative of a prospectus pursuant to Article 3 of the
Prospectus Directive.
Any person making or intending to make any offer of Fixed Rate Senior Notes within the EEA
should only do so in circumstances in which no obligation arises for
VIII-1
MetLife, Inc. or any of the underwriters to produce a prospectus for such offer. Neither we
nor the underwriters have authorized, nor do they authorize, the making of any offer of Fixed Rate
Senior Notes through any financial intermediary, other than offers made by the underwriters which
constitute the final offering of Fixed Rate Senior Notes contemplated in this prospectus
supplement.
For the purposes of this provision, and your representation below, the expression an “offer to
the public” in relation to any Fixed Rate Senior Notes in any Relevant Member State means the
communication in any form and by any means of sufficient information on the terms of the offer and
any Fixed Rate Senior Notes to be offered so as to enable an investor to decide to purchase any
Fixed Rate Senior Notes as the same may be varied in that Relevant Member State by any measure
implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
Each person in a Relevant Member State who receives any communication in respect of, or who
acquires any Fixed Rate Senior Notes under, the offer of Fixed Rate Senior Notes contemplated by
this prospectus supplement will be deemed to have represented, warranted and agreed to and with
MetLife, Inc. and each underwriter that:
(A) it is a “qualified investor” within the meaning of the law in that Relevant Member
State implementing Article 2(1)(e) of the Prospectus Directive; and
(B) in the case of any Fixed Rate Senior Notes acquired by it as a financial
intermediary, as that term is used in Article 3(2) of the Prospectus Directive, (i) the
Fixed Rate Senior Notes acquired by it in the offering have not been acquired on behalf of,
nor have they been acquired with a view to their offer or resale to, persons in any
Relevant Member State other than “qualified investors” (as defined in the Prospectus
Directive), or in circumstances in which the prior consent of the representatives has been
given to the offer or resale; or (ii) where Fixed Rate Senior Notes have been acquired by
it on behalf of persons in any Relevant Member State other than qualified investors, the
offer of those Fixed Rate Senior Notes to it is not treated under the Prospectus Directive
as having been made to such persons.
In addition, in the United Kingdom, this prospectus supplement (and accompanying prospectus)
is being distributed only to, and is directed only at, and any offer subsequently made may only be
directed at persons who are “qualified investors” (as defined in the Prospectus Directive) (i) who
have professional experience in matters relating to investments falling within Article 19 (5) of
the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2005, as amended (the
“Order”) and/or (ii) who are high net worth companies (or persons to whom it may otherwise be
lawfully
VIII-2
communicated) falling within Article 49(2)(a) to (d) of the Order (all such persons together
being referred to as “relevant persons”). This prospectus supplement (and accompanying prospectus)
must not be acted on or relied on in the United Kingdom by persons who are not relevant persons. In
the United Kingdom, any investment or investment activity to which this prospectus supplement (and
accompanying prospectus) relates is only available to, and will be engaged in with, relevant
persons.
Switzerland
This prospectus supplement (and accompanying prospectus) does not constitute an issue
prospectus pursuant to Article 652a or Article 1156 of the Swiss Code of Obligations and the Fixed
Rate Senior Notes will not be listed on the SIX Swiss Exchange. Therefore, this prospectus
supplement (and accompanying prospectus) may not comply with the disclosure standards of the
listing rules (including any additional listing rules or prospectus schemes) of the SIX Swiss
Exchange. Accordingly, the Fixed Rate Senior Notes may not be offered to the public in or from
Switzerland, but only to a selected and limited circle of investors who do not subscribe to the
Fixed Rate Senior Notes with a view to distribution. Any such investors will be individually
approached by the underwriters from time to time.
Dubai
This prospectus supplement (and accompanying prospectus) relates to an exempt offer in
accordance with the Offered Securities Rules of the Dubai Financial Services Authority. This
prospectus supplement (and accompanying prospectus) is intended for distribution only to persons of
a type specified in those rules. It must not be delivered to, or relied on by, any other person.
The Dubai Financial Services Authority has no responsibility for reviewing or verifying any
documents in connection with exempt offers. The Dubai Financial Services Authority has not approved
this prospectus supplement (and accompanying prospectus) nor taken steps to verify the information
set out in it, and has no responsibility for it. The Fixed Rate Senior Notes which are the subject
of the offering contemplated by this prospectus supplement may be illiquid and/or subject to
restrictions on their resale. Prospective purchasers of the Fixed Rate Senior Notes offered should
conduct their own due diligence on the Fixed Rate Senior Notes. If you do not understand the
contents of this prospectus supplement (and accompanying prospectus) you should consult an
authorized financial adviser.
Australia
This prospectus supplement (and the accompanying prospectus) is not a formal disclosure
document and has not been, nor will be, lodged with the Australian Securities and Investments
Commission. This prospectus supplement (and the accompanying prospectus) does not purport to
contain all information that investors or their professional advisers would expect to find in a
prospectus or other disclosure documents (as defined in
XXXX-0
xxx Xxxxxxxxxxxx Xxx 0000 (Xxxxxxxxx)) for the purposes of Part 6D.2 of the Corporations Xxx
0000 (Australia) or in a product disclosure statement for the purposes of Part 7.9 of the
Corporations Xxx 0000 (Australia), in either case, in relation to the Fixed Rate Senior Notes.
The Fixed Rate Senior Notes are not being offered in Australia to “retail clients” as defined
in sections 761G and 761GA of the Corporations Xxx 0000 (Australia). This offering is being made
in Australia solely to “wholesale clients” for the purposes of section 761G of the Corporations Act
2001 (Australia) and, as such, no prospectus, product disclosure statement or other disclosure
document in relation to the Fixed Rate Senior Notes has been, or will be, prepared.
This prospectus supplement (and the accompanying prospectus) does not constitute an offer in
Australia other than to wholesale clients. By submitting an application for the Fixed Rate Senior
Notes, you represent and warrant to us that you are a wholesale client for the purposes of section
761G of the Corporations Xxx 0000 (Australia). If any recipient of this prospectus supplement (and
the accompanying prospectus) is not a wholesale client, no offer of, or invitation to apply for,
the Fixed Rate Senior Notes shall be deemed to be made to such recipient and no applications for
the Fixed Rate Senior Notes will be accepted from such recipient. Any offer to a recipient in
Australia, and any agreement arising from acceptance of such offer, is personal and may only be
accepted by the recipient. In addition, by applying for the Fixed Rate Senior Notes, you undertake
to us that, for a period of 12 months from the date of issue of the Fixed Rate Senior Notes, you
will not transfer any interest in the Fixed Rate Senior Notes to any person in Australia other than
to a wholesale client.
Hong Kong
The Fixed Rate Senior Notes may not be offered or sold by means of any document other than (i)
in circumstances which do not constitute an offer to the public within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), or (ii) to “professional investors” within the meaning of
the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) and any rules made thereunder, or
(iii) in other circumstances which do not result in this prospectus supplement or the accompanying
prospectus being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of
Hong Kong), and no advertisement, invitation or document relating to the Fixed Rate Senior Notes
may be issued or may be in the possession of any person for the purpose of issue (in each case
whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be
accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong
Kong) other than with respect to Fixed Rate Senior Notes which are or are intended to be disposed
of only to persons outside Hong Kong or only to “professional investors” within the meaning of the
Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder.
VIII-4
Singapore
Neither this prospectus supplement nor the accompanying prospectus has not been registered as
a prospectus with the Monetary Authority of Singapore. Accordingly, none of this prospectus
supplement, the accompanying prospectus and any other document or material in connection with the
offer or sale, or invitation for subscription or purchase, of the Fixed Rate Senior Notes may be
circulated or distributed, nor may the Fixed Rate Senior Notes be offered or sold, or be made the
subject of an invitation for subscription or purchase, whether directly or indirectly, to persons
in Singapore other than (i) to an institutional investor under Section 274 of the Securities and
Futures Act, Chapter 289 of Singapore (the “SFA”), (ii) to a relevant person, or any person
pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the
SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable
provision of the SFA, in each case subject to compliance with conditions set forth in the SFA.
Where the Fixed Rate Senior Notes are subscribed or purchased under Section 275 by a relevant
person which is: (a) a corporation (which is not an accredited investor) the sole business of which
is to hold investments and the entire share capital of which is owned by one or more individuals,
each of whom is an accredited investor or (b) a trust (where the trustee is not an accredited
investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor,
shares, debentures and units of shares and debentures of that corporation or the beneficiaries’
rights and interest in that trust shall not be transferable for 6 months after that corporation or
that trust has acquired the Fixed Rate Senior Notes under Section 275 except: (1) to an
institutional investor under Section 274 of the SFA or to a relevant person, or any person pursuant
to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA; (2)
where no consideration is given for the transfer; or (3) by operation of law.
Japan
The Fixed Rate Senior Notes have not been and will not be registered under the Financial
Instruments and Exchange Law of Japan (Law Xx. 00 xx 0000 xx Xxxxx, as amended) (“FIEL”) and the
underwriters will not offer or sell any Fixed Rate Senior Notes directly or indirectly, in Japan or
to, or for the benefit of, any resident of Japan (which term as used herein means, unless otherwise
provided herein, any person resident in Japan, including any corporation or other entity organized
under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan
or to a resident of Japan, except pursuant to an exemption from the registration requirements of,
and otherwise in compliance with, the FIEL and any other applicable laws, regulations and
ministerial guidelines of Japan.
VIII-5