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INVESTOR RIGHTS AGREEMENT
by and among
Citigroup Inc.,
MetLife, Inc.
and
Citigroup Insurance Holding Corporation
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Dated as of July 1, 2005
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Table of Contents
1. Certain Definitions............................................. 1
2. Shelf Registration Statements................................... 4
3. Additional Demand Registrations................................. 5
4. Piggyback Registrations......................................... 7
5. Selection of Underwriters....................................... 8
6. Holdback Agreements............................................. 8
7. Procedures...................................................... 8
8. Registration Expenses........................................... 13
9. Indemnification................................................. 14
10. Rule 144........................................................ 15
11. Transfer of Registration Rights................................. 16
12. Conversion of Other Securities.................................. 16
13. Transfer of Common Stock........................................ 16
14. Lock-Up of the Stockholder...................................... 17
15. Standstill...................................................... 17
16. Miscellaneous................................................... 18
INVESTOR RIGHTS AGREEMENT dated as of July 1, 2005, by and among
MetLife, Inc., a Delaware corporation (the "Company"), and Citigroup Inc., a
Delaware corporation (the "Stockholder") and Citigroup Insurance Holding
Corporation, a Delaware corporation.
In consideration of the mutual covenants and agreements herein
contained and other good and valid consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. CERTAIN DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the following meanings:
"Affiliate" of any Person means any other Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such Person. The term "control" (including the
terms "controlling," "controlled by" and "under common control with") as used
with respect to any Person means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Acquisition Agreement" means the Acquisition Agreement, dated January
31, 2005, between the Company and the Stockholder, as may be amended from time
to time.
"Agreed Cooperation" means, in connection with any underwritten
offering, where, in addition to the cooperation otherwise required by this
Agreement, members of senior management of the Company (which members of
management shall include the Company's chief executive officer and chief
financial officer in the case of the Selected Offering) cooperate with the
underwriter(s) in connection therewith and make themselves available to
participate on a reasonable basis in "road-show" and other customary marketing
activities in such locations (domestic and foreign) as recommended by the
underwriter(s) (including one-on-one meetings with prospective purchasers of the
Registrable Common Stock).
"Agreement" means this Investor Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Investor Rights Agreement as the same
may be in effect at the time such reference becomes operative.
"Blackout Period" has the meaning set forth in Section 7(e) hereof.
"Board of Directors" means the board of directors of the Company.
"Business Day" means any day, except a Saturday, Sunday or legal
holiday on which banking institutions in The City of New York are authorized or
obligated by law or executive order to close.
"Closing Date" has the meaning set forth in the Acquisition Agreement.
"Common Stock" means common stock, par value $.01 per share, of the
Company.
"Company" has the meaning set forth in the introductory paragraph.
"Competitor of the Company" means a company primarily engaged in
providing life insurance and annuities in the United States.
"Delay Period" has the meaning set forth in Section 3(d) hereof.
"Demand Registration" has the meaning set forth in Section 3(a) hereof.
"Demand Registration Statement" has the meaning set forth in Section
3(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fully Marketed Underwritten Offering" means an underwritten offering
in which there is Agreed Cooperation.
"Governmental Entity" means any national, federal, state, municipal,
local, territorial, foreign or other government or any department, commission,
board, bureau, agency, regulatory authority or instrumentality thereof, or any
court, judicial, administrative or arbitral body or public or private tribunal.
"Nasdaq" means the Nasdaq quotation system, or any successor reporting
system.
"Nominal Stock Consideration Amount" has the meaning set forth in the
Acquisition Agreement.
"NYSE" means the New York Stock Exchange, Inc.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, Governmental
Entity or any other entity.
"Piggyback Registration" has the meaning set forth in Section 4(a)
hereof.
"Piggyback Registration Statement" has the meaning set forth in Section
4(a) hereof.
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"Prospectus" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Common Stock covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
"Purchaser Convertible Preferred Stock" has the meaning set forth in
the Acquisition Agreement.
"Registrable Common Stock" means (i) any shares of Common Stock issued
as Stock Consideration, (ii) all shares of Common Stock issued or issuable upon
conversion of the Purchaser Convertible Preferred Stock and (iii) any other
security into or for which the Common Stock referred to in clause (i) or (ii)
has been converted, substituted or exchanged, and any security issued or
issuable with respect thereto upon any stock dividend or stock split or in
connection with a combination of shares, reclassification, recapitalization,
merger, consolidation or other reorganization or otherwise.
"Registration Expenses" has the meaning set forth in Section 8(a)
hereof.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Common Stock pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all materials incorporated by reference in such Registration
Statement.
"Rule 144" means Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such rule.
"Rule 415" means Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such rule.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Selected Offering" means one underwritten offering where, reasonably
in advance of the commencement of the road show for such offering, the
Stockholder provides a written notice to the Company to the effect that the
Stockholder requests that the Company's chief executive officer and chief
financial officer participate in such road show.
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"Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Stock Consideration" means the shares of Common Stock issued to the
Stockholder pursuant to the Acquisition Agreement.
"Stockholder" has the meaning set forth in the introductory paragraph.
"Suspension Notice" has the meaning set forth in Section 7(e) hereof.
"underwritten registration or underwritten offering" means a
registration in which securities of the Company are sold to one or more
underwriters (as defined in Section 2(a)(ii) of the Securities Act) for resale
to the public.
2. SHELF REGISTRATION STATEMENTS.
(a) Right to Request Registration. At the request of the Stockholder,
the Company shall use its best efforts to promptly file a registration statement
on Form S-3 or such other form under the Securities Act then available to the
Company providing for the resale pursuant to Rule 415 from time to time by the
Stockholder of such number of shares of Registrable Common Stock requested by
the Stockholder to be registered thereby (including the Prospectus, amendments
and supplements to the shelf registration statement or Prospectus, including
pre- and post-effective amendments, all exhibits thereto and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such shelf registration statement, the "Shelf Registration Statement"). The
Company shall use its best efforts to cause the Shelf Registration Statement to
be declared effective by the SEC as promptly as practicable following such
filing. The Company shall not be required to maintain the effectiveness of the
Shelf Registration Statement for a period of more than 18 months in the
aggregate plus the duration of any Blackout Period. The plan of distribution in
the Shelf Registration Statement shall be determined by the Stockholder and
shall contemplate the possibility of underwritten offerings.
(b) Number of Fully Marketed Underwritten Offerings. The Stockholder
shall be entitled to request an aggregate of two (2) Fully Marketed Underwritten
Offerings pursuant to the Shelf Registration Statement if the Nominal Stock
Consideration Amount is $1 billion or less, three (3) Fully Marketed
Underwritten Offerings pursuant to the Shelf Registration Statement if the
Nominal Stock Consideration Amount is more than $1 billion but less than $2
billion and four (4) Fully Marketed Underwritten Offerings pursuant to the Shelf
Registration Statement if the Nominal Stock Consideration Amount is $2 billion
or more; provided, however, that the Stockholder shall be entitled to request no
more than two (2) underwritten offerings pursuant to the Shelf Registration
Statement in any 12 month period that require involvement by management of the
Company in road-show or similar marketing activities. If the Stockholder
requests a Fully Marketed Underwritten Offering, the Company shall (a) cause
there to occur Agreed Cooperation in connection therewith and (b) if requested
by the underwriter(s), prepare preliminary and
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final prospectus supplements for use in connection therewith containing such
additional information as reasonably requested by the underwriter(s) (in
addition to the minimum amount of information required by law, rule or
regulation). An underwritten offering shall not count as one of the permitted
Fully Marketed Underwritten Offerings if there is not Agreed Cooperation in
connection therewith. Except as provided in this Section 2(b), there shall be no
limitation on the number of takedowns off the Shelf Registration Statement.
3. ADDITIONAL DEMAND REGISTRATIONS.
(a) Right to Request Registration. Any time after the date hereof, the
Stockholder may request registration for resale under the Securities Act of all
or part of the Registrable Common Stock pursuant to a Registration Statement
separate from the Shelf Registration Statement (a "Demand Registration"). As
promptly as practicable after such request, but in any event within 30 days of
such request by the Stockholder, the Company shall file a registration statement
registering for resale such number of shares of Registrable Common Stock held by
the Stockholder as requested to be so registered (including the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference, if
any, in such registration statement, a "Demand Registration Statement"). In
connection with each such Demand Registration, the Company shall cause there to
occur Agreed Cooperation.
(b) Number of Demand Registrations. The Stockholder will be entitled to
request a number of Demand Registrations pursuant to Section 3(a) equal to two
(2) if the Nominal Stock Consideration Amount is $1 billion or less, three (3)
if the Nominal Stock Consideration Amount is more than $1 billion but less than
$2 billion and four (4) if the Nominal Stock Consideration Amount is $2 billion
or more, in each case, minus the number of Fully Marketed Underwritten Offerings
completed off of the Shelf Registration Statement. A registration shall not
count as one of the permitted Demand Registrations pursuant to Section 3(a) (i)
until the related Demand Registration Statement has become effective, (ii) if
the Stockholder is not able to register at least 50% of the Registrable Common
Stock requested to be included in such registration, (iii) if there was not
Agreed Cooperation in connection therewith or (iv) in the case of a Demand
Registration that would be the last permitted Demand Registration requested
pursuant to Section 3(a), if the Stockholder is not able to register all of the
Registrable Common Stock requested to be included in such registration.
(c) Priority on Demand Registrations. If a Demand Registration pursuant
to this Section 3 involves an underwritten offering and the managing underwriter
shall advise the Company that in its opinion the number of securities requested
to be included in such registration exceeds the number that can be sold in such
offering without having an adverse effect on such offering, including the price
at which such securities can be sold, then the Company shall include in such
registration the maximum number of shares that
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such underwriter advises can be so sold without having such effect, allocated
(i) first, to Registrable Common Stock requested by the Stockholder to be
included in such registration and (ii) second, among all shares of Common Stock
requested to be included in such registration by any other Persons (including
securities to be sold for the account of the Company) allocated among such
Persons in such manner as they may agree. The Company shall not grant to any
Person the right to request the Company to register any securities of the
Company except such rights that do not adversely affect the priorities of the
Stockholder set forth in this Section 3(c).
(d) Restrictions on Demand Registrations. The Company may postpone the
filing or the effectiveness of a Demand Registration Statement if, based on the
good faith judgment of the Company's Board of Directors, such postponement is
necessary in order to avoid premature disclosure of a matter the Board of
Directors has determined would not be in the best interest of the Company to be
disclosed at such time; provided, however, that the Stockholder requesting such
Demand Registration Statement shall be entitled at any time after receipt of any
notice of postponement and before such Demand Registration Statement becomes
effective, to withdraw such request and, if such request is withdrawn, such
Demand Registration shall not count as one of the permitted Demand
Registrations. The Company shall promptly provide written notice to the
Stockholder of (x) any postponement of the filing or effectiveness of a Demand
Registration Statement pursuant to this Section 3(d), (y) the Company's decision
to file or seek effectiveness of such Demand Registration Statement following
such postponement and (z) the effectiveness of such Demand Registration
Statement. The Company may defer the filing or effectiveness of a particular
Demand Registration Statement pursuant to this Section 3(d) only once during any
12-month period. Notwithstanding the provisions of this Section 3(d), the
Company may not postpone the filing or effectiveness of a Demand Registration
Statement past the date that, if such postponement continued, would result in
there being more than sixty (60) days in the aggregate in any 12 month period
during which the filing or effectiveness of one or more Registration Statements
has been so postponed; provided, however, that if the filing or effectiveness of
a Demand Registration Statement has been postponed due to a determination by the
Board of Directors that the Company is in possession of material non-public
information that would not be in the best interest of the Company to be
disclosed, such period of postponement will not extend beyond the second
Business Day following the day on which such matter is disclosed to the public
or ceases to be material. The period during which filing or effectiveness is so
postponed hereunder is referred to as a "Delay Period."
(e) Effective Period of Demand Registrations. After any Demand
Registration filed pursuant to this Agreement has become effective, the Company
shall use its best efforts to keep such Demand Registration Statement effective
for a period of at least 180 days from the date on which the SEC declares such
Demand Registration Statement effective plus the duration of any Delay Period
and any Blackout Period, or such shorter period that shall terminate when all of
the Registrable Common Stock covered by such
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Demand Registration Statement has been sold pursuant to such Demand Registration
Statement in accordance with the plan of distribution set forth therein.
4. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. Whenever the Company proposes to publicly sell
or register for sale any of its common equity securities pursuant to a
registration statement (a "Piggyback Registration Statement") under the
Securities Act (other than a registration statement on Form S-8 or on Form S-4
or any similar successor forms thereto), whether for its own account or for the
account of one or more stockholders of the Company (a "Piggyback Registration"),
the Company shall give prompt written notice to the Stockholder of its intention
to effect such sale or registration and, subject to Sections 4(b) and 4(c),
shall include in such transaction all Registrable Common Stock with respect to
which the Company has received a written request from the Stockholder for
inclusion therein within 15 days after the receipt of the Company's notice. The
Company may postpone or withdraw the filing or the effectiveness of a Piggyback
Registration at any time in its sole discretion, without prejudice to the
Stockholder's right to immediately request a Demand Registration hereunder. A
Piggyback Registration shall not be considered a Demand Registration for
purposes of Section 3 of this Agreement.
(b) Priority on Primary Registrations. If a Piggyback Registration is
initiated as an underwritten primary registration on behalf of the Company, and
the managing underwriter advises the Company in writing that in its opinion the
number of securities requested to be included in such registration exceeds the
number that can be sold in such offering without having an adverse effect on
such offering, including the price at which such securities can be sold, then
the Company shall include in such registration the maximum number of shares that
such underwriter advises can be so sold without having such effect, allocated
(i) first, to the securities the Company proposes to sell, (ii) second, to the
Registrable Common Stock requested to be included therein by the Stockholder,
and (iii) third, among other securities requested to be included in such
registration by other security holders of the Company on such basis as such
holders may agree among themselves and the Company.
(c) Priority on Secondary Registrations. If a Piggyback Registration is
initiated as an underwritten registration on behalf of a holder of the Company's
securities other than Registrable Common Stock, and the managing underwriter
advises the Company in writing that in its opinion the number of securities
requested to be included in such registration exceeds the number that can be
sold in such offering without having an adverse effect on such offering,
including the price at which such securities can be sold, then the Company shall
include in such registration the maximum number of shares that such underwriter
advises can be so sold without having such effect, allocated (i) first, to the
securities requested to be included therein by the holder(s) requesting such
registration and (ii) second, to other securities (including Registrable Common
Stock) requested to be included in such registration by other security holders,
the Company and the Stock-
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holder, pro rata among such holder(s), the Company and the Stockholder on the
basis of the number of shares requested to be registered by them.
5. SELECTION OF UNDERWRITERS.
If any of the Registrable Common Stock covered by a Demand Registration
Statement or a Shelf Registration Statement is to be sold in an underwritten
offering, the Stockholder shall have the right to select the managing
underwriter(s) to administer the offering subject to the prior approval of the
Company, which approval shall not be unreasonably withheld.
6. HOLDBACK AGREEMENTS.
Neither the Company nor the Stockholder shall effect any sale or
distribution of any of equity securities of the Company during the 60 days
beginning on the effective date of any underwritten Demand Registration
Statement or any underwritten Piggyback Registration Statement or the pricing
date of any underwritten offering pursuant to a Shelf Registration Statement
(except as part of such underwritten registration or offering or pursuant to
registrations on Form S-8 or S-4 or any successor forms thereto) unless the
underwriter managing the offering otherwise agrees to a shorter period. Nothing
in this Section 6 will restrict sales of Common Stock by any subsidiary or
Affiliate of the Stockholder as nominee of customers or in connection with
banking, brokerage or asset management activities in the ordinary course of
business.
7. PROCEDURES.
(a) Whenever the Stockholder requests that any Registrable Common Stock
be registered or sold pursuant to this Agreement, the Company shall use its best
efforts to effect the registration and the sale of such Registrable Common Stock
in accordance with the intended methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as reasonably possible:
(i) prepare and file with the SEC a Registration
Statement with respect to such Registrable Common Stock and
use its best efforts to cause such Registration Statement to
become effective as soon as practicable thereafter; and before
filing a Registration Statement or Prospectus or any
amendments or supplements thereto (including any prospectus
supplement for a shelf takedown), furnish to the Stockholder
and the underwriter or underwriters, if any, copies of all
such documents proposed to be filed, including documents
incorporated by reference in the Prospectus and, if requested
by the Stockholder, the exhibits incorporated by reference,
and the Stockholder (and the underwriter(s), if any) shall
have the opportunity to review and comment thereon, and the
Company will make such changes and additions thereto as
reasonably requested by the Stockholder (and the
8
underwriter(s), if any) prior to filing any Registration
Statement or amendment thereto or any Prospectus or any
supplement thereto;
(ii) prepare and file with the SEC such amendments
and supplements to such Registration Statement and the
Prospectus used in connection therewith as may be necessary to
keep such Registration Statement effective for a period of not
less than 180 days, in the case of a Demand Registration
Statement or an aggregate of 18 months, in the case of a Shelf
Registration Statement (plus, in each case, the duration of
any Delay Period and any Blackout Period), or such shorter
period as is necessary to complete the distribution of the
securities covered by such Registration Statement and comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration
Statement during such period in accordance with the intended
methods of disposition by the Stockholder thereof set forth in
such Registration Statement and, in the case of the Shelf
Registration Statement, prepare such prospectus supplements
containing such disclosures as may be reasonably requested by
the Stockholder or any underwriter(s) in connection with each
shelf takedown;
(iii) furnish to the Stockholder such number of
copies of such Registration Statement, each amendment and
supplement thereto, the Prospectus included in such
Registration Statement (including each preliminary Prospectus)
and such other documents as the Stockholder and any
underwriter(s) may reasonably request in order to facilitate
the disposition of the Registrable Common Stock;
(iv) use its best efforts to register or qualify such
Registrable Common Stock under such other securities or blue
sky laws of such jurisdictions as the Stockholder and any
underwriter(s) reasonably requests and do any and all other
acts and things that may be reasonably necessary or advisable
to enable the Stockholder and any underwriter(s) to consummate
the disposition in such jurisdictions of the Registrable
Common Stock (provided, that the Company will not be required
to (1) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for
this subparagraph (iv), (2) subject itself to taxation in any
such jurisdiction or (3) consent to general service of process
in any such jurisdiction);
(v) notify the Stockholder and any underwriter(s), at
any time when a Prospectus relating thereto is required to be
delivered under the Securities Act, of the occurrence of any
event as a result of which the Prospectus included in such
Registration Statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statements
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therein not misleading, and, at the request of the Stockholder
and any underwriter(s), the Company shall prepare a supplement
or amendment to such Prospectus so that, as thereafter
delivered to the purchasers of such Registrable Common Stock,
such Prospectus shall not contain an untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein not misleading;
(vi) in the case of an underwritten offering, enter
into such agreements (including underwriting agreements in
customary form) and take all such other actions as the
Stockholder or the underwriter(s) reasonably request in order
to expedite or facilitate the disposition of such Registrable
Common Stock (including, without limitation, causing
management and other Company personnel to cooperate with the
Stockholder and the underwriter(s) in connection with
performing due diligence) and cause its counsel to issue
opinions of counsel in form, substance and scope as are
customary in primary underwritten offerings, addressed and
delivered to the underwriter(s) and the Stockholder;
(vii) in connection with each Demand Registration
pursuant to Section 3 and each Fully Marketed Underwritten
Offering requested by the Stockholder under Section 2, cause
there to occur Agreed Cooperation and, in all other cases,
cause members of management of the Company to be available to
participate in, and to cooperate with the underwriter(s) in
connection with, customary marketing activities on a
reasonable basis (including select conference calls and
one-on-one meetings with prospective purchasers);
(viii) make available for inspection by the
Stockholder, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Stockholder or
underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by
the Stockholder, underwriter, attorney, accountant or agent in
connection with such Registration Statement;
(ix) use its best efforts to cause all such
Registrable Common Stock to be listed on each securities
exchange on which securities of the same class issued by the
Company are then listed or, if no such similar securities are
then listed, on Nasdaq or a national securities exchange
selected by the Company;
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(x) provide a transfer agent and registrar for all
such Registrable Common Stock not later than the effective
date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately
prior to the pricing of any underwritten offering, immediately
prior to effectiveness of each Registration Statement (and, in
the case of an underwritten offering, at the time of closing
of the sale of Registrable Common Stock pursuant thereto),
letters from the Company's independent registered public
accountants addressed to the Stockholder and each underwriter,
if any, stating that such accountants are independent public
accountants within the meaning of the Securities Act and the
applicable rules and regulations adopted by the SEC
thereunder, and otherwise in customary form and covering such
financial and accounting matters as are customarily covered by
letters of the independent registered public accountants
delivered in connection with primary underwritten public
offerings;
(xii) make generally available to its stockholders a
consolidated earnings statement (which need not be audited)
for the 12 months beginning after the effective date of a
Registration Statement as soon as reasonably practicable after
the end of such period, which earnings statement shall satisfy
the requirements of an earning statement under Section 11(a)
of the Securities Act; and
(xiii) promptly notify the Stockholder and the
underwriter or underwriters, if any:
(1) when the Registration Statement, any
pre-effective amendment, the Prospectus or
any Prospectus supplement or post-effective
amendment to the Registration Statement has
been filed and, with respect to the
Registration Statement or any post-effective
amendment, when the same has become
effective;
(2) of any written request by the SEC for
amendments or supplements to the
Registration Statement or Prospectus;
(3) of the notification to the Company by
the SEC of its initiation of any proceeding
with respect to the issuance by the SEC of
any stop order suspending the effectiveness
of the Registration Statement; and
(4) of the receipt by the Company of any
notification with respect to the suspension
of the qualification of any
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Registrable Common Stock for sale under the
applicable securities or blue sky laws of
any jurisdiction.
(b) The Company represents and warrants that no Registration Statement
(including any amendments or supplements thereto and Prospectuses contained
therein) shall contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein, or necessary to make the
statements therein not misleading (except that the Company makes no
representation or warranty with respect to information relating to the
Stockholder furnished to the Company by or on behalf of the Stockholder
specifically for use therein).
(c) The Company shall make available to the Stockholder (i) promptly
after the same is prepared and publicly distributed, filed with the SEC, or
received by the Company, one copy of each Registration Statement and any
amendment thereto, each preliminary Prospectus and Prospectus and each amendment
or supplement thereto, each letter written by or on behalf of the Company to the
SEC or the staff of the SEC (or other governmental agency or self-regulatory
body or other body having jurisdiction, including any domestic or foreign
securities exchange), and each item of correspondence from the SEC or the staff
of the SEC (or other governmental agency or self-regulatory body or other body
having jurisdiction, including any domestic or foreign securities exchange), in
each case relating to such Registration Statement, and (ii) such number of
copies of a Prospectus, including a preliminary Prospectus, and all amendments
and supplements thereto and such other documents as the Stockholder or any
underwriter may reasonably request in order to facilitate the disposition of the
Registrable Common Stock. The Company will promptly notify the Stockholder of
the effectiveness of each Registration Statement or any post-effective
amendment. The Company will promptly respond to any and all comments received
from the SEC, with a view towards causing each Registration Statement or any
amendment thereto to be declared effective by the SEC as soon as practicable and
shall file an acceleration request as soon as practicable following the
resolution or clearance of all SEC comments or, if applicable, following
notification by the SEC that any such Registration Statement or any amendment
thereto will not be subject to review.
(d) The Company may require the Stockholder to furnish to the Company
any other information regarding the Stockholder and the distribution of such
securities as the Company may from time to time reasonably request in writing.
(e) The Stockholder agrees that, upon notice from the Company of the
happening of any event as a result of which the Prospectus included in such
Registration Statement contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein not misleading (a
"Suspension Notice"), the Stockholder will forthwith discontinue disposition of
Registrable Common Stock pursuant to such Registration Statement for a
reasonable length of time until the Stockholder is advised in writing by the
Company that the use of the Prospectus may be resumed and is
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furnished with a supplemented or amended Prospectus as contemplated by Section
7(a) hereof; provided, however, that such postponement of sales of Registrable
Common Stock by the Stockholder shall not exceed sixty (60) days in the
aggregate in any 12 month period; provided, further, that if a Suspension Notice
has been delivered due to a determination by the Board of Directors that the
Company is in possession of material non-public information that would not be in
the best interest of the Company to be disclosed, the Blackout Period (as
defined below) will not extend beyond the second Business Day following the day
on which such matter is disclosed to the public or ceases to be material. If the
Company shall give the Stockholder any Suspension Notice, the Company shall
extend the period of time during which the Company is required to maintain the
Registration Statement effective pursuant to this Agreement by the number of
days during the period from and including the date of the giving of such
Suspension Notice to and including the date the Stockholder either is advised by
the Company that the use of the Prospectus may be resumed or receives the copies
of the supplemented or amended Prospectus contemplated by Section 7(a) (a
"Blackout Period").
8. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees (including SEC registration fees and NASD filing fees), fees and expenses
of compliance with securities or blue sky laws, listing application fees,
printing expenses, transfer agent's and registrar's fees, cost of distributing
Prospectuses in preliminary and final form as well as any supplements thereto,
and fees and disbursements of counsel for the Company and all accountants and
other Persons retained by the Company (all such expenses being herein called
"Registration Expenses") (but not including any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of Registrable
Common Stock), shall be borne by the Company. In addition, the Company shall pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit or quarterly review by the Company's auditors, the
expense of any liability insurance for the benefit of the Company or its
directors and officers and the expenses and fees for listing the securities to
be registered on each securities exchange on which they are to be listed.
(b) In connection with each registration initiated hereunder (whether a
Demand Registration, Shelf Registration Statement or a Piggyback Registration),
the Company shall pay, or shall reimburse the Stockholder for, the reasonable
fees and disbursements of one law firm chosen by the Stockholder as its counsel.
(c) The obligation of the Company to bear the expenses described in
Section 8(a) and to pay or reimburse the Stockholder for the expenses described
in Section 8(b) shall apply irrespective of whether a registration, once
properly demanded, if applicable, becomes effective, is withdrawn or suspended,
is converted to another form of registration and irrespective of when any of the
foregoing shall occur.
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9. INDEMNIFICATION.
(a) The Company shall indemnify, to the fullest extent permitted by
law, the Stockholder and its officers, directors, employees and Affiliates and
each Person who controls the Stockholder (within the meaning of the Securities
Act) against all losses, claims, damages, liabilities and expenses arising out
of or based upon any untrue or alleged untrue statement of material fact
contained in any Registration Statement, Prospectus or preliminary Prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or any violation or alleged violation by the
Company of the Securities Act, the Exchange Act or applicable "blue sky" laws,
except insofar as the same are made in reliance and in conformity with
information relating to the Stockholder furnished in writing to the Company by
the Stockholder expressly for use therein. In connection with an underwritten
offering, the Company shall indemnify such underwriter(s), their officers,
employees and directors and each Person who controls such underwriter(s) (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Stockholder.
(b) In connection with any Registration Statement in which the
Stockholder is participating, the Stockholder shall furnish to the Company in
writing such information as the Company reasonably requests for use in
connection with any such Registration Statement or Prospectus and, shall
indemnify, to the fullest extent permitted by law, the Company, its officers,
employees, directors, Affiliates, and each Person who controls the Company
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses arising out of or based upon any untrue or alleged
untrue statement of material fact contained in the Registration Statement,
Prospectus or preliminary Prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only to the extent that the same are made in reliance and in conformity with
information relating to the Stockholder furnished in writing to the Company by
the Stockholder expressly for use therein.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel (in addition to any local counsel) for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party
14
there may be one or more legal or equitable defenses available to such
indemnified party that are in addition to or may conflict with those available
to another indemnified party with respect to such claim. Failure to give prompt
written notice shall not release the indemnifying party from its obligations
hereunder.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to this Section
9 is due in accordance with the terms hereof, but is held by a court to be
unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified Person as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
that result in such losses, claims, damages, liabilities or expenses as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified Person on the other
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 indemnifying
party or by the indemnified party, and by such party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. In no event shall the liability of the Stockholder be
greater in amount than the amount of net proceeds received by the Stockholder
upon such sale.
10. RULE 144.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and it will take such further action
as the Stockholder may reasonably request to make available adequate current
public information with respect to the Company meeting the current public
information requirements of Rule 144(c) under the Securities Act, to the extent
required to enable the Stockholder to sell Registrable Common Stock without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of the Stockholder, the Company will deliver to the
Stockholder a written statement as to whether it has complied with such
information and requirements.
15
11. TRANSFER OF REGISTRATION RIGHTS.
(a) The Stockholder may transfer all or any portion of its
then-remaining rights under Sections 3, 5, 6, 7, 8, 9, 10, 11, 12 and 16 of this
Agreement to any transferee who acquires at least 20% of the Stock Consideration
(each, a "transferee"). Any transfer of registration rights pursuant to this
Section 11 shall be effective upon receipt by the Company of (x) written notice
from the Stockholder stating the name and address of any transferee and
identifying the amount of Registrable Common Stock with respect to which the
rights under this Agreement are being transferred and the nature of the rights
so transferred and (y) a written agreement from the transferee to be bound by
all of the terms of this Agreement. In connection with any such transfer, the
term "Stockholder" as used in this Agreement shall, where appropriate to assign
such rights to such transferee, be deemed to refer to the transferee holder of
such Registrable Common Stock. The Stockholder and such transferees may exercise
the registration rights hereunder in such proportion (not to exceed the
then-remaining rights hereunder) as they shall agree among themselves.
(b) After such transfer, the Stockholder shall retain its
rights under this Agreement with respect to all other Registrable Common Stock
owned by the Stockholder. Upon the request of the Stockholder, the Company shall
execute an Investor Rights Agreement with such transferee or a proposed
transferee substantially similar to the applicable sections of this Agreement.
12. CONVERSION OF OTHER SECURITIES.
If the Stockholder offers Registrable Common Stock by forward sale, or
any options, rights, warrants or other securities issued by it or any other
person that are offered with, convertible into or exercisable or exchangeable
for any Registrable Common Stock, the Registrable Common Stock subject to such
forward sale or underlying such options, rights, warrants or other securities
shall be eligible for registration pursuant to Sections 2, 3 and 4 of this
Agreement.
13. TRANSFER OF COMMON STOCK
The Stockholder may not (i) transfer more than 5% of the total number
of shares of outstanding Common Stock to a Competitor of the Company or (ii)
transfer more than $1 billion of Stock Consideration (based on the average
closing price of the Common Stock on the NYSE over the 10 trading day period
ending the last trading day of the month immediately preceding the date of
transfer) in the aggregate to any one Person, other than to an Affiliate of the
Stockholder; provided, however, that this Section 13 will not apply to any
transfer (i) pursuant to Rule 144 or offerings made under the Shelf Registration
Statement or (ii) pursuant to a Demand Registration Statement or a Piggyback
Registration Statement.
16
14. LOCK-UP OF THE STOCKHOLDER
Notwithstanding any other right under any other provision of this
Agreement, the Stockholder agrees that it will not sell any shares of Common
Stock comprising the Stock Consideration for a period from the Closing Date
until and including the date that is one year after the Closing Date, provided,
however, that if the Nominal Stock Consideration Amount is greater than $1
billion, the Stockholder may sell the amount of shares of Common Stock
comprising the Stock Consideration (including Common Stock underlying the
Purchaser Convertible Preferred Stock) that exceeds $1 billion of the Nominal
Stock Consideration Amount beginning on the 181st day after the Closing Date;
provided, further, that nothing in this Section 14 will restrict sales of Common
Stock by the Stockholder (i) as nominee of customers in the ordinary course of
business, (ii) pursuant to a private offering not requiring registration under
the Securities Act of 1933 if the transferee agrees to the transfer and other
restrictions set forth in this Agreement to which the Stockholder was subject
with respect to the transferred shares of Common Stock and such private offering
is made on or after the 181st day after the Closing Date or (iii) to an
Affiliate of the Stockholder if such Affiliate agrees to the transfer and other
restrictions set forth in this Agreement to which the Stockholder was subject
with respect to the transferred shares of Common Stock or (iv) to the Company.
Nothing in this provision will limit the ability of the Stockholder to request
the Company to file the Shelf Registration Statement or Demand Registration
Statement or permit the Company to delay the effectiveness of the Shelf
Registration Statement or Demand Registration Statement during the period
described in this Section 14, provided that no sales may be made pursuant to the
Shelf Registration Statement or Demand Registration Statement until the period
described in this Section 14 has expired. Nothing in this Section 14 will
restrict sales of Common Stock by any Affiliate or subsidiary of the Stockholder
as nominee of customers or in connection with banking, brokerage or asset
management activities in the ordinary course of business.
15. STANDSTILL
Until such time as the amount of Common Stock held by the Stockholder
is less than 5% of the total number of shares of outstanding Common Stock, the
Stockholder shall not (i) propose to acquire, or acquire, any securities or
other property of the Company or make any statement about any merger or other
corporate transaction of the Company; (ii) seek representation on the Board of
Directors of the Company or the removal of any director of the Company from such
Board of Directors; (iii) make any solicitation of proxies to vote securities of
the Company; (iv) form or join a "group" with respect to any voting securities
of the Company; (v) seek to control or influence the management or Board of
Directors of the Company; (vi) deposit any securities of the Company in a voting
trust; and (vii) make a public request, or advise or otherwise assist others, to
do any of the foregoing. Nothing in this Section 15 will restrict sales of
Common Stock by any Affiliate or subsidiary of the Stockholder as nominee of
customers or in connection with banking, brokerage or asset management
activities in the ordinary course of business.
17
16. MISCELLANEOUS.
(a) Notices. All notices, requests, consents and other communications
required or permitted hereunder shall be in writing and shall be hand delivered
or mailed postage prepaid by registered or certified mail or by facsimile
transmission (with immediate telephone confirmation thereafter) and, in the case
of the Stockholder, shall also be sent via e-mail,
If to the Company:
MetLife, Inc.
1 MetLife Plaza
00-00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxxx, Senior Vice President
and Treasurer
with a copy to
MetLife, Inc.
1 MetLife Plaza
00-00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxx, Executive Vice President and
General Counsel
with a copy to (which shall not constitute notice):
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx III, Esq.
Facsimile No.: (000) 000-0000
If to the Stockholder:
Citigroup Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Deputy General Counsel
Facsimile No.: (000) 000-0000
Email: xxxxxxx@xxxxxxxxx.xxx
18
With a copy to:
Citigroup Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxx, Esq.
General Counsel -- Capital Markets
Facsimile No.: (000) 000-0000
Email: xxxx@xxxxxxxxx.xxx
If to a transferee Stockholder, to the address of such transferee
Stockholder set forth in the transfer documentation provided to the Company;
in each case with copies to (which shall not constitute
notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or at such other address as such party each may specify by written notice to the
others, and each such notice, request, consent and other communication shall for
all purposes of the Agreement be treated as being effective or having been given
when delivered personally, upon one Business Day after being deposited with a
courier if delivered by courier, upon receipt of facsimile confirmation if
transmitted by facsimile, or, if sent by mail, at the earlier of its receipt or
72 hours after the same has been deposited in a regularly maintained receptacle
for the deposit of United States mail, addressed and postage prepaid as
aforesaid.
(b) No Waivers. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(c) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. If the outstanding Common Stock is converted into or
exchanged or substituted for other securities issued by any other Person, as a
condition to the effectiveness of the merger, consolidation, reclassification,
share exchange or other transaction pursuant to which such conversion, exchange,
substitution or other transaction takes place, such other Person shall become
bound hereby with respect to such other securities constituting Registrable
Securities and, if requested by the Stockholder or a permitted transferee, shall
further evidence such obligation by executing and delivering to the Stockholder
and such
19
transferee a written agreement to such effect in form and substance satisfactory
to the Stockholder.
(d) Governing Law. The internal laws, and not the laws of conflicts
(other than Section 5-1401 of the General Obligations Law of the State of New
York), of New York shall govern the enforceability and validity of this
Agreement, the construction of its terms and the interpretation of the rights
and duties of the parties.
(e) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in any federal
or state court located in the County and State of New York, and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 16(a) shall be deemed
effective service of process on such party.
(f) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts (including by facsimile) and by different parties hereto
in separate counterparts, with the same effect as if all parties had signed the
same document. All such counterparts shall be deemed an original, shall be
construed together and shall constitute one and the same instrument. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
(h) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes and replaces all other prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof.
(i) Captions. The headings and other captions in this Agreement are for
convenience and reference only and shall not be used in interpreting, construing
or enforcing any provision of this Agreement.
20
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
(k) Amendments. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof may not be
given, without the written consent of the Company and the Stockholder.
(l) Aggregation of Stock. All Registrable Common Stock held by or
acquired by any Affiliated Persons will be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
(m) Equitable Relief. The parties hereto agree that legal remedies may
be inadequate to enforce the provisions of this Agreement and that equitable
relief, including specific performance and injunctive relief, may be used to
enforce the provisions of this Agreement.
[Execution Page Follows]
21
IN WITNESS WHEREOF, this Investor Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
METLIFE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CITIGROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
M&A Execution
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
22
CITIGROUP INSURANCE HOLDINGS COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Treasurer
23
