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EXHIBIT 1.1
METLIFE, INC.
DEBT SECURITIES, PREFERRED STOCK AND COMMON STOCK
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UNDERWRITING AGREEMENT
, 2001
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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").
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, Subordinated Indenture (each an "Indenture") or the Amended
and Restated Certificate of Incorporation of the Company (including the
applicable Certificate of Designation), as applicable (each a "Securities
Agreement") and identified in such Pricing Agreement.
Particular sales of Securities may be made from time to time to the
Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of
such Securities or the total number of shares, as the case may be, the initial
public offering price of such Securities, the purchase price to the Underwriters
of such Securities, the names of the Underwriters of such Securities, the names
of the Representatives of such Underwriters and the principal amount or number
of shares of such Securities to be purchased by each Underwriter.
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In addition, such Pricing Agreement shall set forth the date, time and manner of
delivery of such Securities and payment therefor. The Pricing Agreement shall
also specify (in a manner not inconsistent with the applicable Securities
Agreement 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, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 under the
Securities Act of 1933, as amended (the "Act") (the file number of which is set
forth in Schedule II to the applicable Pricing Agreement), which has become
effective, for the registration under the Act of the Securities. The Company
proposes to file with the Commission pursuant to Rule 424 under the Act a
supplement or supplements to the form of prospectus included in such
registration statement relating to the Securities and the plan of distribution
thereof. Such registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Base Prospectus"; and such supplemented
form of prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424 (including the Base Prospectus as so supplemented) is
hereinafter called the "Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424 is hereinafter
called the "Preliminary Prospectus." Any reference herein to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act") on or before the date of
this Agreement, or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the issue
date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference;
(b) As of the date hereof, when the Final Prospectus is first filed
or transmitted for filing pursuant to Rule 424 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document incorporated
by reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and, in the case of
Securities issued pursuant to
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an Indenture, the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the Exchange Act and the respective rules
thereunder and (ii) neither the Registration Statement, as amended as of any
such time, nor the Final Prospectus, as amended or supplemented as of such time,
will contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustees (the "Form T-1s") or (ii) the
information contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information relating to such Underwriter or the underwriting
arrangements furnished in writing to the Company by any Underwriter specifically
for use in the Registration Statement and the Final Prospectus;
(c) Each document incorporated by reference in the Registration
Statement and the Final Prospectus will comply in all material respects, as
amended at the time the Registration Statement becomes effective, with the
Exchange Act;
(d) Neither the Company nor any of its subsidiaries listed on Annex
II hereto (the "Significant Subsidiaries" and, individually, a "Significant
Subsidiary") has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Final Prospectus as
amended or supplemented any loss or interference material to the business of the
Company and its Significant Subsidiaries considered as a whole, other than as
described in or contemplated by the Preliminary Prospectus or Final Prospectus
as amended or supplemented, from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and, since the respective dates as of
which information is given in the Registration Statement and the Base
Prospectus, there has not been any (i) material addition, or development
involving a prospective material addition, to Metropolitan Life Insurance
Company's ("MetLife") liability for future policy benefits, policyholder account
balances and other claims, other than in the ordinary course of business, (ii)
material decrease in the surplus of MetLife or material change in the capital
stock or other ownership interests (other than issuances of common stock upon
the exercise of outstanding employee stock options or pursuant to existing
employee compensation plans or on the conversion or exchange of convertible or
exchangeable securities outstanding on the date of the 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, otherwise
than as described or contemplated in the Final Prospectus;
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(e) The Company and each Significant Subsidiary has good and
marketable title in fee simple to all material real property and good and
marketable title to all material personal property owned by it, in each case
free and clear of all liens, encumbrances and defects, except such as are
described in the Final Prospectus or such as would not have a material adverse
effect on the business, financial position, equity, reserves, surplus or results
of operations of the Company and its subsidiaries, considered as a whole
("Material Adverse Effect"), and do not materially interfere with the use made
and proposed to be made of such property by the Company or any Significant
Subsidiary, and any material real property and material buildings held under
lease by the Company or any of its subsidiaries are held under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and currently proposed to be made of such
property and buildings by the Company or any Significant Subsidiary;
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Base Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
and in good standing in any such jurisdiction; and each Significant Subsidiary
has been duly incorporated and is validly existing as a corporation and is in
good standing under the laws of its jurisdiction of incorporation, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Base Prospectus; and each Significant Subsidiary is
duly qualified to do business as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in
which its ownership or lease of property or the conduct of its business requires
such qualification and good standing, except to the extent that the failure to
be so qualified would not have a Material Adverse Effect;
(g) The Company has an authorized capitalization as set forth and
described in the Final Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are fully
paid and nonassessable;
(h) The Securities have been duly authorized and, when the
Securities are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Securities, such Securities will have been duly
executed, authenticated, issued and delivered (and, in the case of Securities
representing capital stock of the Company, will be fully paid and nonassessable)
and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the applicable Securities Agreement; such
Securities Agreement has been duly authorized 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 (as hereinafter defined) for
any Securities, each Securities Agreement will constitute a valid and legally
binding agreement of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
moratorium and other similar laws relating to or affecting creditors' rights
generally and to general principles of equity;
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(i) Each Significant Subsidiary that is required to be organized or
licensed as an insurance company in its jurisdiction of incorporation (an
"Insurance Subsidiary") is duly organized and licensed as an insurance company
in its respective jurisdiction of incorporation and is duly licensed or
authorized as an insurer in each other jurisdiction where it is required to be
so licensed or authorized to conduct its business, in each case with such
exceptions as would not have, individually or in the aggregate, a Material
Adverse Effect; except as otherwise described in the Final Prospectus, each
Insurance Subsidiary has all other approvals, orders, consents, authorizations,
licenses, certificates, permits, registrations and qualifications (collectively,
the "Approvals") of and from all insurance regulatory authorities to conduct its
business, with such exceptions as would not have, individually or in the
aggregate, a Material Adverse Effect; there is no pending or, to the knowledge
of the Company, threatened action, suit, proceeding or investigation that could
reasonably be expected to lead to the revocation, termination or suspension of
any such Approval, the revocation, termination or suspension of which would
have, individually or in the aggregate, a Material Adverse Effect; and, to the
knowledge of the Company, no insurance regulatory agency or body has issued any
order or decree impairing, restricting or prohibiting the payment of dividends
by any Insurance Subsidiary to its parent which would have, individually or in
the aggregate, a Material Adverse Effect;
(j) The Company and each Significant Subsidiary has all necessary
Approvals of and from, and has made all filings, registrations and declarations
(collectively, the "Filings") with, all insurance regulatory authorities, all
Federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, necessary to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Base Prospectus, except where the failure to have such
Approvals or to make such Filings would not have, individually or in the
aggregate, a Material Adverse Effect; to the knowledge of the Company, the
Company and each Significant Subsidiary is in compliance with all applicable
laws, rules, regulations, orders, by-laws and similar requirements, including in
connection with registrations or memberships in self-regulatory organizations,
and all such Approvals and Filings are in full force and effect and neither the
Company nor any Significant Subsidiary has received any notice of any event,
inquiry, investigation or proceeding that would reasonably be expected to result
in the suspension, revocation or limitation of any such Approval or otherwise
impose any limitation on the conduct of the business of the Company or any
Significant Subsidiary, except as described in the Final Prospectus or except
for any such suspension, revocation or limitation which would not have,
individually or in the aggregate, a Material Adverse Effect;
(k) 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;
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(l) 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 Preliminary Prospectus or
the Final Prospectus, none of the Broker-Dealer Subsidiaries or Investment
Advisor Subsidiaries has received any notification from any applicable
regulatory authority to the effect that any additional Approvals from such
regulatory authority are needed to be obtained by such subsidiary in any case
where it could be reasonably expected that (x) any of the Broker-Dealer
Subsidiaries or Investment Advisor Subsidiaries would in fact be required either
to obtain any such additional Approvals or cease or otherwise limit engaging in
certain business and (y) the failure to have such Approvals or limiting such
business would have a Material Adverse Effect; and each Broker-Dealer Subsidiary
and each Investment Advisor Subsidiary is in compliance with the requirements of
the broker-dealer and investment advisor laws and regulations of each
jurisdiction which are applicable to such subsidiary, and has filed all notices,
reports, documents or other information required to be filed thereunder, in each
case with such exceptions as would not have, individually or in the aggregate, a
Material Adverse Effect;
(m) 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 Agreement, this Agreement, any Pricing
Agreement and any Delayed Delivery Contract (as hereinafter defined), 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 material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument for
borrowed money to which the Company or any of its Significant Subsidiaries is a
party or by which the Company or any of its Significant Subsidiaries is bound or
to which any of the property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of the Company or any
of its Significant Subsidiaries or any statute or any order, rule or regulation
of any court or insurance regulatory authority or other governmental agency or
body having jurisdiction over the Company or any of its Significant Subsidiaries
or any of their properties, in each case other than such breaches, conflicts,
violations or defaults which, individually or in the aggregate, would not have a
Material Adverse Effect, and no authorization, approval, order, consent,
registration or qualification of or with any such court or insurance regulatory
authority or other governmental agency or body is required for the issue or sale
of the Securities, except (i) the registration under the Act of the Securities;
and (ii) such authorizations, approvals, orders, consents, registrations or
qualifications as may be required under the Trust Indenture Act or state or
foreign securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters, in each case other than such
authorizations, approvals,
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orders, consents, registrations or qualifications which (individually or in the
aggregate) the failure to make, obtain or comply with would not have a Material
Adverse Effect;
(n) Other than as set forth in the Final Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is subject which, if determined adversely to the Company or its
subsidiaries, could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and, to the knowledge of the Company, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(o) Neither the Company nor any Significant Subsidiary is in
violation of any of its certificate of incorporation or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, which violation or default would have,
individually or in the aggregate, a Material Adverse Effect;
(p) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration Statement
present fairly in all material respects the financial position, the results of
operations and the changes in cash flows of such entities in conformity with
GAAP at the respective dates or for the respective periods to which they apply;
and
(q) Deloitte & Touche LLP, who have certified certain financial
statements of the Company, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule II to the applicable Pricing Agreement the principal amount or number
of shares of the Securities set forth opposite such Underwriter's name in
Schedule I to the applicable Pricing Agreement, except that, if Schedule II to
the applicable Pricing Agreement provides for the sale of Securities pursuant to
delayed delivery, the number of shares or the principal amounts of Securities to
be purchased by the Underwriters shall be as set forth in Schedule I to the
applicable Pricing Agreement less the respective amounts of Contract Securities
(as hereinafter defined) determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities."
If so provided in Schedule II to the applicable Pricing Agreement, the
Underwriters are authorized to solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Annex III hereto
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but with such changes therein as the Company may authorize or approve. The
Underwriters will endeavor to make such arrangements and, as compensation
therefor, the Company will pay to the Underwriters, for the account of the
Underwriters, on the Closing Date (as hereinafter defined), the percentage set
forth in Schedule II to the applicable Pricing Agreement of the principal amount
of the Securities for which Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions that are not prohibited from purchasing
the Securities. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule II to the applicable Pricing Agreement and the
aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule II to the applicable Pricing
Agreement. The Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in Schedule I to the
applicable Pricing Agreement shall be reduced by an amount which shall bear the
same proportion to the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount set forth in Schedule I to the
applicable Pricing Agreement, except to the extent that you determine that such
reduction shall be otherwise than in such proportion and so advise the Company
in writing; provided, however, that the total principal amount of Securities to
be purchased by all Underwriters shall be the aggregate principal amount set
forth in Schedule I to the applicable Pricing Agreement less the aggregate
principal amount of Contract Securities.
3. Delivery and Payment. Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter at the office, on the date
and at the time specified in the applicable Pricing Agreement (or such later
date not later than five business days after such specified date as the
Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Underwriters'
Securities being herein called the "Closing Date"). Delivery of the
Underwriters' Securities shall be made to the Underwriters for the respective
accounts of the several Underwriters against payment by the several
Representatives of the purchase price thereof by wire transfer of Federal
(same-day) funds to the account specified by the Company or as otherwise set
forth in the applicable Pricing Agreement.
4. Company Covenants. The Company agrees with each of the Underwriters
of any Securities:
(a) To prepare the Final Prospectus as amended and supplemented in
relation to the applicable Securities in a form approved by the Representatives
and to file timely
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such Final Prospectus pursuant to Rule 424(b) under the Act; to make no further
amendment or any supplement to the Registration Statement or Final Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to the
applicable Securities and prior to the Closing Date for such Securities unless
the Representatives for such Securities shall have had a reasonable opportunity
to review and comment upon any such amendment or supplement prior to any filing
thereof; to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Final Prospectus or any
amended Final Prospectus has been filed and to furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of such Securities and, during such same period, to advise the Representatives,
promptly after it receives notice thereof, of (i) the issuance by the Commission
of any stop order or of any order preventing or suspending the use of the Final
Prospectus, (ii) the suspension of the qualification of such Securities for
offering or sale in any jurisdiction or of the initiation or threatening of any
proceeding for any such purpose, or (iii) any request by the Commission for the
amending or supplementing of the Registration Statement or Final Prospectus or
for additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of the Final Prospectus or
suspending any such qualification, promptly to use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may reasonably request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for so long as
may be necessary to complete the distribution of such Securities, provided that
in connection therewith the Company shall not be required to qualify as a
foreign corporation, to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise subject;
(c) To furnish the Underwriters with copies of the Final Prospectus
as amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of such Securities,
and if at such time any event shall have occurred as a result of which the Final
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Final Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend or supplement the
Final Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon their
request to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to time
reasonably request of
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an amended Final Prospectus or a supplement to the Final Prospectus which will
correct such statement or omission or effect such compliance;
(d) To make generally available to securityholders of the Company
as soon as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for any Securities and continuing to and including the latter of (i)
the termination of trading restrictions for such Securities, of which the
Company shall be notified by the Representatives or their counsel, and (ii) the
Closing Date for such Securities, not to offer, sell, contract to sell or
otherwise dispose of any securities of the Company (other than pursuant to
employee stock option plans existing, or on the conversion or exchange of
convertible or exchangeable securities outstanding on the date of the Pricing
Agreement) which are substantially similar to such Securities, without the prior
written consent of the Representatives, which consent shall not be unreasonably
withheld; and
(f) During a period of five years from the effective date of the
Registration Statement, to furnish to the Representatives copies of all reports
or other communications (financial or other) furnished to stockholders of the
Company, and to deliver to the Representatives (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which the Securities
or any class of securities of the Company is listed (such financial statements
to be on a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission); and (ii) such additional, nonconfidential information
concerning the business and financial condition of the Company as the
Representatives may from time to time reasonably request.
5. Fees and Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of counsel and accountants to the Company
in connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, Base Prospectus, any Preliminary Prospectus and the
Final Prospectus and 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 reasonable
expenses in connection with the qualification of the Securities for offering and
sale under state securities laws and insurance securities laws as provided in
Section 4(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky Survey; (iv) the filing fees incident to, and the fees and
disbursements of counsel for the
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Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (v) any fees charged by securities rating services for rating the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any trustee, paying agent or transfer agent and the fees and
disbursements of counsel for any such trustee, paying agent or transfer agent in
connection with a Securities Agreement and the Securities issued pursuant to any
Securities Agreement; (viii) any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of the Securities; and (ix) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder which are not otherwise specifically provided for in this
Section. Except as provided in this Section, and Sections 7 and 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Securities by them
and any advertising expenses connected with any offers they may make.
6. Conditions to Underwriters' Obligations. The obligations of the
Underwriters of any Securities under the Pricing Agreement relating to such
Securities shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of the Closing Date for such Securities, true and correct in all
material respects, the condition that the Company shall have performed all of
its obligations hereunder to be performed at or before the Closing Date, and the
following additional conditions:
(a) The Final Prospectus as amended or supplemented in relation to
the applicable Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 4(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representatives' reasonable satisfaction;
(b) 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) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Company, shall have furnished to the Underwriters their written opinion, dated
such Closing Date, in form and substance reasonably satisfactory to the
Underwriters, substantially in the form attached to the Pricing Agreement as
Schedule III. Insofar as such opinion involves factual matters, such counsel may
rely, to the extent such counsel deems proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
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(d) Xxxx X. Xxxxxx, Senior Executive Vice-President and General
Counsel of the Company, shall have furnished to the Underwriters his written
opinion, dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Final Prospectus as
amended and supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Final Prospectus, and all of the issued shares of capital stock
of the Company have been duly authorized and validly issued and are
fully paid and nonassessable;
(iii) Each Significant Subsidiary has been duly incorporated
and is validly existing as a corporation and is in good standing under
the laws of its jurisdiction of incorporation, with the corporate power
and authority to own its properties and conduct its business as
described in the Final Prospectus as amended and supplemented; and all
issued shares of capital stock or other ownership interests of each
Significant Subsidiary have been duly authorized and validly issued,
are fully paid and nonassessable, and (except as described in the Final
Prospectus and except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, other than any lien, encumbrance,
equity or claim which would not have a Material Adverse Effect;
(iv) The Company and each Significant Subsidiary has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified and in good standing would not have a Material Adverse
Effect;
(v) Each Insurance Subsidiary is duly organized and licensed
as an insurance company in its jurisdiction of incorporation, and is
duly licensed or authorized as an insurer in each other jurisdiction
where it is required to be so licensed or authorized to conduct its
business as described in the Final Prospectus, in each case with such
exceptions as would not have, individually or in the aggregate, a
Material Adverse Effect; except as otherwise described in the Final
Prospectus, each Insurance Subsidiary has all other Approvals of and
from all insurance regulatory authorities to conduct its business, with
such exceptions as would not have, individually or in the aggregate, a
Material Adverse Effect; to such counsel's knowledge, there is no
pending or threatened action, suit, proceeding or investigation that
could reasonably be expected to lead to the revocation, termination or
suspension of any such Approval, the revocation, termination or
suspension of which would have, individually or in the aggregate, a
Material Adverse Effect; and, to such counsel's knowledge, no insurance
regulatory agency or body has issued any order or decree impairing,
restricting or
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prohibiting the payment of dividends by any Insurance Subsidiary to its
parent which would have, individually or in the aggregate, a Material
Adverse Effect;
(vi) The Company and each Significant Subsidiary has all
necessary Approvals from, and has made all Filings with, all insurance
regulatory authorities, all Federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, which are necessary to own, lease, license
and use its properties and assets and to conduct its business in the
manner described in the Final Prospectus, except where the failure to
have such Approvals or to make such Filings would not have,
individually or in the aggregate, a Material Adverse Effect; all such
Approvals and Filings are in full force and effect and, to such
counsel's knowledge, neither the Company nor any Significant Subsidiary
has received any notice of any event, inquiry, investigation or
proceeding that would reasonably be expected to result in the
suspension, revocation or limitation of any such Approval or otherwise
impose any limitation on the conduct of the business of the Company or
any such Subsidiary, except as described in the Final Prospectus or any
such suspension, revocation or limitation which would not have,
individually or in the aggregate, a Material Adverse Effect;
(vii) Each Broker-Dealer Subsidiary and each Investment
Advisor Subsidiary is duly licensed or registered as a broker-dealer or
investment advisor, as the case may be, in each jurisdiction where it
is required to be so licensed or registered to conduct its business, in
each case, with such exceptions as would not have, individually or in
the aggregate, a Material Adverse Effect; each Broker-Dealer Subsidiary
and each Investment Advisor Subsidiary has all other necessary
Approvals of and from all applicable regulatory authorities, including
any self-regulatory organization, to conduct its business, in each case
with such exceptions as would not have, individually or in the
aggregate, a Material Adverse Effect; except as otherwise described in
the Final Prospectus, to such counsel's knowledge, no Broker-Dealer
Subsidiary or Investment Advisor Subsidiary has received any
notification from any applicable regulatory authority to the effect
that any additional Approvals from such regulatory authority are needed
to be obtained by such Subsidiary in any case where it could be
reasonably expected that (x) such Broker-Dealer Subsidiary or
Investment Advisor Subsidiary would in fact be required either to
obtain any such additional Approvals or cease or otherwise limit
engaging in certain business and (y) the failure to have such Approvals
or limiting such business would have a Material Adverse Effect;
(viii) To such counsel's knowledge and other than as set forth
in the Final Prospectus as amended or supplemented, there are no legal
or governmental proceedings pending to which the Company or any of its
Significant Subsidiaries is a party or to which any property of the
Company or any of its Significant Subsidiaries is subject which, if
determined adversely to the Company or any of its Significant
Subsidiaries, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect;
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(ix) This Agreement, the Pricing Agreement and any Delayed
Delivery Contracts with respect to the applicable Securities have been
duly authorized, executed and delivered by the Company;
(x) No Significant Subsidiary is an "investment company" or an
entity controlled by an "investment company" required to be registered
under the Investment Company Act of 1940, as amended, although certain
separate accounts of MetLife and its subsidiaries are required to
register as investment companies under the Investment Company Act;
(xi) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities, the
applicable Securities Agreement, this Agreement, the applicable Pricing
Agreement and any Delayed Delivery Contracts, and the consummation of
the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument
to which, to the knowledge of such counsel, the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is
bound or to which any of the property or assets of the Company or any
such subsidiary is subject, except for such conflicts, breaches,
violations or defaults as would not, individually or in the aggregate,
have a Material Adverse Effect on the consummation by the Company of
the transactions contemplated by this Agreement, the applicable Pricing
Agreement, the applicable Securities Agreement and any Delayed Delivery
Contracts; nor will such action result in any violation of the
provisions of the articles of incorporation or by-laws of the Company
or any Significant Subsidiary or any statute, order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company, any such subsidiary or any of its respective properties;
provided, that the foregoing opinion is limited to those statutes,
orders, rules and regulations of the United States of America, the
State of Delaware and the State of New York, in each case, which, in
our opinion, are normally applicable to transactions of the type
contemplated by this Agreement, and provided further, that no opinion
need be given with respect to (i) the Act, the Exchange Act, the Trust
Indenture Act, the rules and regulations issued pursuant to each such
act, or any order, rule or regulation made or established by any
insurance official or regulatory authority or the National Association
of Securities Dealers, Inc. or (ii) any state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(xii) The Company and each Significant Subsidiary has made all
Filings required to be made pursuant to, and has obtained all Approvals
required to be obtained under any law or regulation of the United
States or any state thereof for the issuance and sale by the Company of
the Securities, the compliance by the Company with all provisions of
this Agreement, the Pricing Agreement, the applicable Securities
Agreement or any Delayed Delivery Contract, and the consummation of the
transac-
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tions herein and therein contemplated, except for such Filings and
Approvals (i) as may be required under state securities, insurance
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters, or (ii)
individually or in the aggregate, as would not affect the validity,
performance of, or adversely affect the consummation of, the
transactions contemplated by this Agreement, the applicable Securities
Agreement, the applicable Pricing Agreement and any Delayed Delivery
Contract or would not have a Material Adverse Effect; and
(xiii) To such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement or any part thereof has
been issued, and no proceedings for that purpose have been instituted
or are pending or contemplated under the Act.
Such counsel shall also state that such counsel reviewed the
Registration Statement and Final Prospectus as amended or supplemented, and
participated in discussions with representatives of the Underwriters and of the
Company and its accountants at which the contents of the Registration Statement
and Final Prospectus as amended or supplemented and related matters were
discussed; on the basis of the information that such counsel gained in the
course of the performance of the services referred to above, although such
counsel shall not be deemed to be passing upon and shall not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Final Prospectus and not be
required to have made an independent check or verification thereof, no facts
have come to the attention of such counsel in the course of such review which
have led such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such Closing Date (other than the financial statements and schedules
and other financial information contained therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Final Prospectus
as amended or supplemented or any further amendment or supplement thereto made
by the Company prior to such Closing Date (other than the financial statements
and schedules and other financial information contained therein, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel may state that such counsel is
admitted to practice law in the State of New York and that he expresses no
opinion as to the laws of any jurisdiction other than the United States, the
State of New York and the DGCL; and such counsel shall be entitled to rely in
respect of the above opinions upon opinions of local or in-house counsel of the
Company or its subsidiaries and in respect of matters of fact upon certificates
of officers of the Company or its subsidiaries, provided that such counsel shall
state that such counsel believes that both the Underwriters and such counsel are
justified in relying upon such opinions and certificates.
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(e) The Company will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents as the
Representatives reasonably request;
(f) At or before the Closing Date for the applicable Securities,
Deloitte & Touche LLP shall have furnished to the Representatives a letter,
confirming that they are independent public accountants with respect to the
Company and the Company's subsidiaries within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations
thereunder, to the effect set forth in Annex IV hereto;
(g) Neither the Company nor any Significant Subsidiary shall have
sustained (i) since the date of the latest audited financial statements included
or incorporated by reference in the Final Prospectus as amended or supplemented
any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Final Prospectus as amended or supplemented, and (ii) since
the respective dates as of which information is given in the Final Prospectus as
amended or supplemented, there shall not have been any change in the surplus of
MetLife or the capital stock of the Company or any increase in the long-term
debt of the Company and its respective subsidiaries considered as a whole, or
any change, or any development involving a prospective change, in or affecting
the business, financial position, stockholders' equity or results of operations
of the Company and the Significant Subsidiaries considered as a whole, otherwise
than as set forth or contemplated in the Final Prospectus as amended or
supplemented, the effect of which, in any such case described in clause (i) or
(ii), is so material and adverse as to make it impracticable or inadvisable to
proceed with the offering or the delivery of the applicable Securities on the
terms and in the manner contemplated in the Final Prospectus as amended or
supplemented;
(h) On or after the date of the Pricing Agreement relating to the
applicable Securities (i) no downgrading shall have occurred in the rating
accorded the debt securities of the Company or any Significant Subsidiary or the
financial strength or claims paying ability of the Company or any of its
Significant Subsidiaries by A.M. Best & Co. or any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any debt security or the financial strength
or the claims paying ability of the Company or any Significant Subsidiary, the
effect of which, in any such case described in clause (i) or (ii), is so
material and adverse as to make it impracticable or inadvisable to proceed with
the offering or the delivery of the applicable Securities on the terms and in
the manner contemplated in the Final Prospectus as amended or supplemented;
(i) On or after the date of the Pricing Agreement relating to the
applicable Securities there shall not have occurred any of the following: (i) a
change in U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the judgment of the
Representatives, be likely to prejudice materially the
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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 general moratorium on commercial banking activities declared by
either Federal or New York State authorities; or (v) the material outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (v) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering or the delivery of the
Securities being delivered on the Closing Date on the terms and in the manner
contemplated in the Final Prospectus as amended or supplemented;
(j) The Company shall have furnished or caused to be furnished to
the Representatives at such Closing Date certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the representations
and warranties of the Company herein at and as of such Closing Date, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to such Closing Date, as to the matters set forth in subsections (a)
and (g) of this Section and as to such other matters as the Representatives may
reasonably request.
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 Section 15
of the 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 any Preliminary Prospectus, the
Registration Statement or the Final Prospectus as amended or supplemented and
any other prospectus relating to the Securities, or any amendment or supplement
(when considered together with the document to which such supplement relates)
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability (or action in
respect thereof) arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Final Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement(s) in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of the applicable
Securities through the Representatives expressly for use in the Final Prospectus
as amended or supplemented relating to such Securities; provided, further, that
the Company shall not be liable to any Underwriter under the indemnity agreement
in this subsection (a) with respect to any Preliminary Prospectus, the Final
Prospectus or the Final Prospectus as amended or
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supplemented, as the case may be, to the extent that any such loss, claim,
damage or liability of such Underwriter results from the fact such Underwriter
sold Securities to a person to whom there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the Final Prospectus or of the
Final Prospectus as then amended or supplemented, whichever is most recent, if
the Company had previously furnished copies thereof to such Underwriter and the
loss, claim, damage or liability of such Underwriter results from an untrue
statement or omission of a material fact contained in the Preliminary Prospectus
which was corrected in the Final Prospectus (or the Final Prospectus as amended
or supplemented).
(b) Each Underwriter will, severally and not jointly, indemnify and
hold harmless the Company, its directors and officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement, the Final Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement (when
considered together with the document to which such supplement relates) thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement, the Final Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; the omission so to notify the indemnifying
party shall relieve it from any liability which it may have to any indemnified
party under such subsection, to the extent the indemnifying party is actually
prejudiced. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the 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
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with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 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, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the applicable Securities to which any such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters of the
applicable Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Final Prospectus relating to the applicable Securities. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. With respect to any such Underwriter, such
relative fault shall also be determined by reference to the extent (if any) to
which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any Preliminary Prospectus result from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the Final
Prospectus or of the Final Prospectus as then amended or supplemented, if the
Company had previously furnished copies thereof to such Underwriter. 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
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subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of the applicable
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act. The obligations of the Underwriters
under this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his consent, is named in the Registration Statement as about to become
a director of the Company) and to each person, if any, who controls the Company
within the meaning of the Act.
8. Defaulting Underwriters. (a) If any Underwriter shall default in its
obligation to purchase the Securities which it has agreed to purchase under the
Pricing Agreement relating to such Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Securities on such
terms. In the event that, within the respective prescribed periods, the
Representatives notify the Company that the Representatives have so arranged for
the purchase of such Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Securities, the Representatives
or the Company shall have the right to postpone the Closing Date for such
Securities for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the Final
Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Final Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Securities.
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(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
one-eleventh 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 principal amount of Securities, as applicable, which such
Underwriter agreed to purchase under the Pricing Agreement related 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 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
one-eleventh of the aggregate number of shares of such Securities or the
aggregate principal amount of such Securities, as applicable, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Securities shall thereupon terminate, without
liability on the part of any nondefaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 5 hereof and the indemnity and contribution agreements in Section 7
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
9. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, the
Company or any officer or director or controlling person of the Company and
shall survive delivery of and payment for the Securities.
10. Effect of Termination of Pricing Agreement or Nondelivery of
Securities. If any Pricing Agreement shall be terminated pursuant to Section 8
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Securities covered by such Pricing Agreement except as
provided in Section 5 and Section 7 hereof; but, if for any other reason,
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of
21
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counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Securities, but the Company shall then be
under no further liability to any Underwriter in respect of such Securities
except as provided in Section 5 and Section 7 hereof.
11. Reliance Upon Representatives. In all dealings hereunder, the
Representatives shall act on behalf of the Underwriters of Securities and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
12. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 7(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
13. Successors and Assigns. This Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit of, the Underwriters, the
Company, and, to the extent provided in Sections 7 and 9 hereof, the officers
and directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
15. 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.
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Very truly yours,
METLIFE, INC.
By:
-------------------------------------
Name:
Title:
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ANNEX I
PRICING AGREEMENT
---------, ----
[ ]
As representatives of the
several Underwriters
named in Schedule I hereto
c/o [ ]
Ladies and Gentlemen:
MetLife, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein (this "Agreement") and in the
Underwriting Agreement, dated ___________, 2001 (the "Underwriting Agreement"),
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Agreement, except that each representation and warranty which refers to the
Final Prospectus in Section 1 of the Underwriting Agreement shall be deemed to
be a representation or warranty as of the date of the Underwriting Agreement in
relation to the Final Prospectus (as therein defined) and also a representation
and warranty as of the date of this Agreement in relation to the Final
Prospectus as amended or supplemented relating to the Designated Securities
which are the subject of this Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to the
Underwriting Agreement and the address of the Representatives are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Base
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in
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Schedule II hereto, the number of shares or the principal amount, as the case
may be, of Designated Securities set forth opposite the name of such Underwriter
in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us ____ counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
METLIFE, INC.
By:
--------------------------
Name:
Title:
Accepted as of the date hereof
on behalf of each of the Underwriters:
By:
------------------------------
Name:
Title:
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26
SCHEDULE I
TO PRICING AGREEMENT
Number of Shares
or Principal
Amount of
Securities to
Underwriters be Purchased
---------------- ----------------------
---------------------------------............................................
---------------------------------............................................
---------------------------------............................................
---------------------------------............................................
----------------------
Total $
======================
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SCHEDULE II
TO PRICING AGREEMENT
Underwriting Agreement dated ______________, 2001
Registration Statement No. 333-
------------
Title, Purchase Price and Description of Securities
Title:
Applicable Securities Agreement:
Number or Aggregate Principal Amount:
Price to the Public:
Purchase Price by Underwriters (include accrued interest or
amortization, if any):
Sinking Fund Provisions:
Redemption Provisions:
Securities into which Convertible or Exchangeable:
Maturity:
Interest Rate:
Interest Payment Dates:
Liquidation Preferences:
Dividends:
Voting Rights:
Other Provisions:
Closing Date, Time and Location:
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Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Underwriters:
Delayed Delivery Arrangements:
Other Terms, if any: [over-allotment options] [description of particular tax,
accounting or other unusual features of the Securities]
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ANNEX II
SIGNIFICANT SUBSIDIARIES
Metropolitan Life Insurance Company (NY)
GenAmerica Corporation (MO)
General American Life Insurance Company (MO)
Reinsurance Group of America, Incorporated (MO)
New England Life Insurance Company (MA)
Metropolitan Property and Casualty Insurance Company (RI)
State Street Research & Management Company (DE)
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ANNEX III
DELAYED DELIVERY CONTRACT
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from MetLife, Inc. (the
"Company"), and the Company agrees to sell to the undersigned, on ___________,
200_ (the "Delivery Date"), $_________ principal amount of the Company's
__________ (the "Securities") offered by the Company's Prospectus dated
__________ __, 200 , as amended or supplemented, receipt of a copy of which is
hereby acknowledged, at a purchase price of __% of the principal amount thereof,
plus [accrued interest] [amortization of original issue discount], if any,
thereon from ________ __, 200 , to the date of payment and delivery, and on the
further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 A.M., New York City time, on the Delivery Date to or
upon the order of the Company by wire transfer of Federal (same-day) funds to a
bank account specified by the Company upon delivery to the undersigned of the
Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written, telex or facsimile communication addressed to the Company not less than
five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned shall not on
the Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such number of
shares or principal amount of the Securities as is to be sold to them pursuant
to the Underwriting Agreement referred to in the Prospectus as amended or
supplemented mentioned above. Promptly after completion of such sale to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
The obligation of the undersigned to take delivery of and make payment for the
Securities, and the obligation of the Company to cause the Securities to be sold
and delivered, shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Securities pursuant to other contracts
similar to this contract.
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The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Securities
hereby agreed to be purchased by it under the laws of the jurisdiction or
jurisdictions to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto 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.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
-------------------------------
(Name of Purchaser)
(Signature and Title of Officer)
-------------------------------
Address
Accepted: , 200
-------------- ---- --
METLIFE, INC.
By:
---------------------------------
(Authorized Signature)
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ANNEX IV
Pursuant to Section 6(f) of the Underwriting Agreement,
Deloitte & Touche LLP shall furnish letters to the Underwriters to the effect
that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and pro forma
financial information) examined by them and included or incorporated by
reference in the Final Prospectus as amended or supplemented or the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published rules and regulations thereunder; and, if applicable, they
have made an examination or a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited consolidated interim financial statements, selected
financial data, pro forma financial information, management's
discussion and analysis and/or condensed financial statements derived
from audited financial statements of the Company included or
incorporated by reference in the Final Prospectus as amended or
supplemented or the Registration Statement for the periods specified in
such letter, as indicated in their reports thereon, copies of which
have been furnished separately to the Representatives of the
Underwriters and are attached hereto;
(iii) On the basis of limited procedures, not
constituting an examination in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Final Prospectus as
amended or supplemented, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference
in the Final Prospectus as amended or supplemented do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
rules and regulations thereunder and generally accepted
accounting principles;
(B) any other income statement data and balance
sheet items included or incorporated by reference in the Final
Prospectus as amended or
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33
supplemented do not agree with the corresponding items in the
audited consolidated financial statements, notes thereto or
financial statement schedules, or other accounting information
from which such data and items were derived;
(C) the unaudited financial statements which were
not included or incorporated by reference in the Final
Prospectus as amended or supplemented were not determined on
a basis substantially consistent with the basis for the
audited consolidated financial statements included or
incorporated by reference in the Final Prospectus, as amended
or supplemented;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated by
reference in the Final Prospectus as amended or supplemented
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than three
days prior to the date of such letter, there have been any
increase in the consolidated short-term or long-term debt of,
or guaranteed by, or liability for future policyholder
benefits and claims of, the Company and its subsidiaries, or
interest maintenance, investment or asset valuation reserves,
or investments in mortgage loans or real estate, or any
decreases in consolidated total surplus or unassigned funds
(surplus), investments in subsidiaries or common stock of
subsidiaries, any changes in the consolidated capital stock or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case
as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Final Prospectus
as amended or supplemented, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Final Prospectus as amended or supplemented to the
specified date referred to in clause (E) there were any
decreases in consolidated total premiums, annuity
considerations and fund deposits, or net gain from operations,
net income or other items specified by the Representatives, or
any increases in benefits and claims paid or surrenders and
withdrawals paid, or any other items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except
in each case for decreases or increases which the Final
Prospectus
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34
discloses have occurred or may occur or which are described in
such letter; and
(iv) In addition to the examination referred to in
their report(s) included or incorporated by reference in the Final
Prospectus as amended or supplemented and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (ii) and (iii) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries, which appear or are incorporated
by reference in the Final Prospectus as amended or supplemented, or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives, and have compared certain of such
specified amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
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