Exhibit 1.1
METLIFE, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
November 19, 2001
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time, MetLife, Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (the "Underwriters" with respect
to such Pricing Agreement and the securities specified therein) the principal
amount of its securities or aggregate number of shares identified in Schedule I
to the applicable Pricing Agreement (the "Securities" with respect to such
Pricing Agreement).
The terms and rights of any particular issuance of Securities shall be
as specified in the Pricing Agreement relating thereto and in or pursuant to the
Senior Indenture or Subordinated Indenture, in each case as supplemented by one
or more Supplemental Indentures (each such Senior Indenture or Subordinated
Indenture, as so supplemented, 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.
In addition, such Pricing Agreement shall set forth the date, time and
manner of delivery of such Securities and payment therefor. Such Pricing
Agreement shall also specify (in a manner not inconsistent with the applicable
Securities Agreements and the registration statement and prospectus with respect
thereto) the terms of such Securities. A Pricing Agreement shall be in the form
of an executed writing (which may be in counterparts), and may be evidenced by
an exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
1. Representations and Warranties. The Company represents and warrants
to the Underwriters as of the date hereof and as of the Closing Date (as
hereinafter defined), and agrees with, each of the Underwriters, as follows:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-61282) under the Securities Act of 1933, as amended (the "Act"), which has
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become effective, for the registration under the Act of the Securities. The
Company meets the requirements for use of Form S-3 under the Act. No stop order
suspending the effectiveness of the registration statement has been issued under
the Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. The Company proposes to file with the Commission pursuant to Rule
424 under the Act a supplement or supplements to the form of prospectus included
in such registration statement relating to the Securities and the plan of
distribution thereof. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Base Prospectus"; and such
supplemented form of prospectus, in the form in which it shall first be filed
with the Commission pursuant to Rule 424 (including the Base Prospectus as so
supplemented), is hereinafter called the "Final Prospectus." Any preliminary
form of the Final Prospectus which has heretofore been filed pursuant to Rule
424 is hereinafter called the "Preliminary Prospectus." Any reference herein to
the Registration Statement, the Base Prospectus, any Preliminary Prospectus or
the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the date of this Agreement, or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the date of this Agreement,
or the issue date of the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference; each Preliminary Prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act and the rules thereunder and each Preliminary
Prospectus and the Final Prospectus delivered to the Representatives for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T;
(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 an Indenture, such 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 any 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, the Final Prospectus or the Preliminary 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 expressly
for use in the Registration Statement and the Final Prospectus;
(c) Each document incorporated or deemed to be incorporated by
reference in the Registration Statement and the Final Prospectus, when they
became effective or at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the Act or
the Exchange Act, as applicable, and, when read together with the other
information in the Final Prospectus, at the time the Registration Statement
became effective, at the time the Final Prospectus was issued and at the Closing
Date did not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading;
(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 any loss or interference material to the business of the Company and
its Significant Subsidiaries considered as a whole, other than as described in
or contemplated by the Final
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Prospectus, from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree; and, since the respective dates as of which information is
given in the Registration Statement and the Base Prospectus, otherwise than as
described or contemplated in the Final Prospectus, there has not been any (i)
material addition, or development involving a prospective material addition, to
the liability of Metropolitan Life Insurance Company ("MetLife") 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 applicable Pricing Agreement) of the Company or any Significant
Subsidiary or any material increase in the long-term debt of the Company or its
subsidiaries, considered as a whole, or (iii) material adverse change, or
development involving a prospective material adverse change, in or affecting the
business, financial position, reserves, surplus, equity or results of operations
(in each case considered either on a statutory accounting or U.S. generally
accepted accounting principles ("GAAP") basis, as applicable) of the Company and
its subsidiaries considered as a whole;
(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 Final Prospectus and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which its ownership
or lease of property or the conduct of its business requires such qualification
and good standing, except to the extent that the failure to be so qualified and
in good standing would not have a Material Adverse Effect; there are no
subsidiaries of the Company that are material to the Company considered as a
whole which are not listed on Annex II hereto; and each Significant Subsidiary
has been duly incorporated and is validly existing as a corporation and is in
good standing under the laws of its jurisdiction of incorporation, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Final Prospectus; and each Significant Subsidiary
is duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which its
ownership or lease of property or the conduct of its business requires such
qualification and good standing, except to the extent that the failure to be so
qualified and in good standing would not have a Material Adverse Effect;
(g) The Company has the corporate power and authority to
execute and deliver this Agreement, the applicable Pricing Agreements, the
applicable Securities Agreements and the Securities and to consummate the
transactions contemplated hereby and thereby;
(h) 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 authorized and validly issued and are fully
paid and nonassessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company; except as disclosed in the Final Prospectus,
there are no outstanding options or warrants to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into or any contracts or commitments to sell shares of
the Company's capital stock or any such options, rights, warrants, convertible
securities or obligations; the description of the Company's stock option and
purchase plans and the options or other rights granted and exercised thereunder
set forth in the Final Prospectus accurately and fairly describe the information
required to be shown with respect to such plans, arrangements, options and
rights; except as disclosed in the Final Prospectus, there are no rights of any
person, corporation or other entity to require registration of any shares of
common stock or any other securities of the Company in connection with the
filing of the Registration Statement
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and the issuance and sale of the Securities to the Underwriters pursuant to this
Agreement and the applicable Pricing Agreements; and all of the issued shares of
capital stock or other ownership interests of each Significant Subsidiary have
been duly and validly authorized and issued, are fully paid and nonassessable
and (except as described in the Final Prospectus and except for directors'
qualifying shares) are owned directly or indirectly by the Company free and
clear of all liens, encumbrances, equities or claims;
(i) The Securities have been duly authorized and, when the
Securities are issued and delivered pursuant to this Agreement and the
applicable Pricing Agreements, such Securities will have been duly executed,
authenticated, issued and delivered (and, in the case of Securities representing
capital stock of the Company, will be fully paid and nonassessable) and will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, and will be entitled to the
benefits provided by the applicable Securities Agreements; such Securities
Agreements have been duly authorized, executed and delivered by the Company and,
in the case of Securities issued pursuant to an Indenture, such Indenture has
been duly qualified under the Trust Indenture Act and, on the Closing Date (as
hereinafter defined) for any Securities, each Securities Agreement will
constitute a valid and legally binding agreement of the Company, enforceable
against the Company 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; and the Securities will be substantially in the form contemplated by
the applicable Securities Agreements, and the Securities and the applicable
Securities Agreements conform in all material respects to the descriptions
thereof contained in the Final Prospectus;
(j) 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 any
revocation, termination or suspension of any such Approval, the revocation,
termination or suspension of which would have, individually or in the aggregate,
a Material Adverse Effect; and, to the knowledge of the Company, no insurance
regulatory agency or body has issued any order or decree impairing, restricting
or prohibiting the payment of dividends by any Insurance Subsidiary to its
parent which would have, individually or in the aggregate, a Material Adverse
Effect;
(k) The Company and each Significant Subsidiary has all
necessary Approvals of and from, and has made all filings, registrations and
declarations (collectively, the "Filings") with, all insurance regulatory
authorities, all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, which are
necessary to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Final Prospectus, except
where the failure to have such Approvals or to make such Filings would not have,
individually or in the aggregate, a Material Adverse Effect; to the knowledge of
the Company, the Company and each Significant Subsidiary is in compliance with
all applicable laws, rules, regulations, orders, by-laws and similar
requirements, including in connection with registrations or memberships in
self-regulatory organizations, and all such Approvals and Filings are in full
force and effect and neither the Company nor any Significant Subsidiary has
received any notice of any event, inquiry, investigation or proceeding that
would reasonably be expected to result in the suspension, revocation or
limitation of any such Approval or otherwise impose any limitation on the
conduct of the business of the Company or any Significant Subsidiary, except as
described in the Final Prospectus or except for any such suspension, revocation
or limitation which would not have, individually or in the aggregate, a Material
Adverse Effect;
(l) 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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(m) 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 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;
(n) The issue and sale of the Securities pursuant to any
Pricing Agreement, and compliance by the Company with all of the provisions of
the Securities, the applicable Securities Agreements, this Agreement and any
Pricing Agreement, and the consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, or other agreement or instrument to
which the Company or any of its Significant Subsidiaries is a party or by which
the Company or any of its Significant Subsidiaries is bound or to which any of
the property or assets of the Company or any of its Significant Subsidiaries is
subject, or which affects the validity, performance or consummation of the
transactions contemplated by this Agreement, nor will such action result in any
violation of the provisions of the certificate of incorporation or by-laws of
the Company or any of its Significant Subsidiaries or any statute or any order,
rule or regulation of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their properties, in each case other than
such breaches, conflicts, violations, or defaults which (other than a violation
of the certificate of incorporation or by-laws or similar organizational
documents of the Company or a Significant Subsidiary), individually or in the
aggregate, would not have a Material Adverse Effect and would not adversely
affect the validity or performance of the Company's obligations under the
Securities, the applicable Securities Agreements, this Agreement and any Pricing
Agreement, and no Approval of or Filing with any such court or insurance
regulatory authority or other governmental agency or body is required for the
issue or sale of the Securities, except (i) the registration under the Act of
the Securities and (ii) such Approvals or Filings as may be required under the
Trust Indenture Act or state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(o) Other than as set forth in the Final Prospectus, there are
no legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is subject, challenging the transactions contemplated by this
Agreement or which, if determined adversely to the Company or its subsidiaries,
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; and, to the knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(p) Neither the Company nor any Significant Subsidiary is in
violation of any of its certificate of incorporation or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it is
bound or to which any of its property or assets is subject, which violation or
default would have, individually or in the aggregate, a Material Adverse Effect;
(q) The statements set forth in the Final Prospectus under the
captions "Description of Debt Securities" and "Description of the Senior Notes",
insofar as they purport to constitute a summary of the terms of the Securities,
under the caption "Underwriting", and under the captions "Business-Regulation",
"Business-Competition" and
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"Legal Proceedings", which have been incorporated therein by reference to the
Company's Annual Report on Form 10-K for the year ended December 31, 2000, as
updated by the Final Prospectus, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate and
complete in all material respects;
(r) The financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement, together with the related schedules and notes, comply in
all material respects with the requirements of the Act and the Exchange Act, as
applicable, and present fairly in all material respects the financial position,
the results of operations and the changes in cash flows of such entities in
conformity with GAAP at the respective dates or for the respective periods to
which they apply; and such financial statements and related notes and schedules,
if any, have been prepared in accordance with GAAP consistently applied
throughout the periods involved, except for any normal year-end adjustments and
except as described therein;
(s) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(t) Neither the Company nor any Significant Subsidiary is an
"investment company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), and the rules and regulations
thereunder, although certain separate accounts of MetLife and certain Insurance
Subsidiaries are required to register as investment companies under the
Investment Company Act;
(u) This Agreement and the applicable Pricing Agreements with
respect to the applicable Securities have been duly authorized, executed and
delivered by the Company;
(v) There are no contracts or documents which are required to
be described in the Registration Statement, the Final Prospectus or the
documents incorporated by reference therein or to be filed as exhibits thereto
which have not been so described and filed as required; and
(w) None of the Company or its subsidiaries or, to the best of
their knowledge, any of their directors, officers or affiliates, has taken or
will take, directly or indirectly, any action designed to, or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Securities in violation of Regulation M under the Exchange Act.
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.
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 Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Underwriters for the respective accounts of the several Underwriters against
payment by 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 such Final Prospectus pursuant to Rule 424(b)
under
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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 (including as it may be 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 an amended Final
Prospectus or a supplement to the Final Prospectus which will correct such
statement or omission or effect such compliance; and the Final Prospectus and
any amendments or supplements thereto furnished to the Representatives shall be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T;
(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 such 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
7
(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, the Base Prospectus, any Preliminary Prospectus and the
Final Prospectus and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing this Agreement, any Pricing Agreement, any Securities
Agreement, any Agreement among Underwriters, any Blue Sky Survey and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws and insurance
securities laws as provided in Section 4(b) hereof, including the reasonable
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky Survey; (iv) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the National Association of
Securities Dealers, Inc. ("NASD") 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 or in
certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof are, at and as of the Closing Date
for such Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder to be performed at or before the
Closing Date, and the following additional conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Debevoise & Xxxxxxxx, 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;
8
(c) 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;
(ii) The Company has the corporate power and authority to
execute and deliver this Agreement, the applicable Pricing Agreements,
the applicable Securities Agreements and the Securities and to
consummate the transactions contemplated hereby and thereby;
(iii) This Agreement, the applicable Pricing Agreements, the
applicable Securities Agreements and the Securities have been duly
authorized, executed and delivered by the Company;
(iv) 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 authorized and validly
issued and are fully paid and nonassessable; none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company; securityholders of the Company have no preemptive or other
similar rights with respect to the Securities arising out of the
certificate of incorporation or the by-laws of the Company or the
Delaware General Corporation Law ("DGCL"); except as disclosed in the
Final Prospectus, there are no rights of any person, corporation or
other entity to require registration of any securities in connection
with the filing of the Registration Statement and the issuance and sale
of the Securities to the Underwriters pursuant to this Agreement and
the applicable Pricing Agreements; the Securities to be issued and sold
to the Underwriters pursuant to this Agreement, the applicable Pricing
Agreements and the applicable Securities Agreements conform in all
material respects to the description thereof contained in the Final
Prospectus;
(v) 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; 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;
(vi) 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 jurisdiction in which its
ownership or lease of property or the conduct of its business requires
such qualification, except to the extent that the failure to be so
qualified and in good standing would not have a Material Adverse
Effect;
(vii) 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 any revocation, termination or
suspension of any such Approval, the revocation, termination or
suspension of which would have, individually or in the aggregate, a
Material Adverse Effect; and, to such counsel's knowledge, no insurance
regulatory agency or body has issued any order or decree impairing,
restricting or prohibiting the payment of dividends by any Insurance
Subsidiary to its parent which would have, individually or in the
aggregate, a Material Adverse Effect;
9
(viii) The Company and each Significant Subsidiary has all
necessary Approvals of and 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; to such
counsel's knowledge, all such Approvals and Filings are in full force
and effect and neither the Company nor any Significant Subsidiary has
received any notice of any event, inquiry, investigation or proceeding
that would reasonably be expected to result in the suspension,
revocation or limitation of any such Approval or otherwise impose any
limitation on the conduct of the business of the Company or any
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;
(ix) 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;
(x) To such counsel's knowledge and other than as set forth in
the Final Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its Significant Subsidiaries is
a party or to which any property of the Company or any of its
Significant Subsidiaries is subject, challenging the transactions
contemplated by this Agreement or which, if determined adversely to the
Company or any of its Significant Subsidiaries, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect; and, to such counsel's knowledge and other than as described or
contemplated in the Final Prospectus, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(xi) Neither the Company nor any Significant Subsidiary is an
"investment company" required to be registered under the Investment
Company Act, although certain separate accounts of MetLife and its
subsidiaries are required to register as investment companies under the
Investment Company Act;
(xii) The issue and sale of the Securities and the execution
and delivery by the Company of and the compliance by the Company with
all of the provisions of the Securities, the applicable Securities
Agreements, this Agreement and the applicable Pricing Agreements, 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 agreement
or instrument listed as an exhibit to the Registration Statement or any
other indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which, to the knowledge of such counsel, the
Company or any of its Significant Subsidiaries is a party or by which
the Company or any of its Significant Subsidiaries is bound or to which
any of the property or assets of the Company or any of its Significant
Subsidiaries is subject, or which affects the validity, performance or
consummation of the transactions contemplated by this Agreement, except
for such conflicts, breaches, violations or defaults as would not,
individually or in the aggregate, have a Material Adverse Effect and
would not adversely affect the validity or performance of this
Agreement, the applicable Pricing Agreements, the applicable Securities
Agreements and the Securities; nor will such action result in any
violation of the provisions of the certificate of incorporation or
by-laws of the Company or any Significant Subsidiary or any statute or
any order, rule or regulation of any court or insurance regulatory
authority or other governmental agency or body having jurisdiction over
the Company, any of its Significant Subsidiaries or any of their
respective properties; provided, that no opinion need be given with
respect to (i) the Act,
10
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 the NASD, or (ii) any state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(xiii) The Company and each Significant Subsidiary has made
all filings, qualifications or registrations required to be made
pursuant to, and has obtained all consents, approvals, licenses,
authorizations or validations 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 applicable Pricing
Agreements, the applicable Securities Agreements and the Securities,
and the consummation of the transactions herein and therein
contemplated, except for such filings, qualifications, registrations,
consents, approvals, licenses, authorizations or validations (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 Agreements, the applicable Pricing Agreements and
the Securities or would not have a Material Adverse Effect;
(xiv) 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;
(xv) The statements set forth in the Final Prospectus under
the captions "Description of Debt Securities" and "Description of the
Senior Notes", insofar as they purport to constitute a summary of the
terms of the Securities, under the caption "Underwriting", and under
the captions "Business - Regulation", "Business - Competition" and
"Legal Proceedings", which have been incorporated therein by reference
to the Company's Annual Report on Form 10-K for the year ended December
31, 2000, as updated by the Final Prospectus, insofar as they purport
to describe the provisions of the laws and documents referred to
therein, are accurate and complete in all material respects;
(xvi) Each of the documents filed by the Company pursuant to
the Exchange Act, and incorporated by reference into the Registration
Statement and the Final Prospectus as of the date hereof, when it was
filed, complied in all material respects with the requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that such counsel need not express any opinion as to
the financial statements and related notes and schedules and other
financial data included or incorporated by reference therein or
excluded therefrom;
(xvii) The Registration Statement, at the time it became
effective, and the Final Prospectus, as of its date, complied in all
material respects with the requirements of the Act and the general
rules and regulations thereunder, except that in each case such counsel
need not express any opinion as to the financial statements and
schedules and other financial data included or incorporated by
reference therein or excluded therefrom, and, except to the extent
expressly stated in paragraph (xv), such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Final
Prospectus;
(xviii) The Registration Statement has been declared effective
by the Commission under the Act, and the Final Prospectus has been
filed with the Commission in accordance with Rule 424(b) under the Act;
(xix) When the Securities have been authenticated and
delivered by the Trustee in accordance with the terms of the applicable
Securities Agreements and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement and the applicable
Pricing Agreements, (a) the Securities will constitute the valid and
legally binding obligations of the Company, entitled to the benefits of
the applicable Securities Agreements, and will be enforceable against
the Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity), and (b) the
Securities will be substantially
11
in the form contemplated by the applicable Securities Agreements, and
the Securities and the applicable Securities Agreements conform to the
descriptions thereof in the Final Prospectus; and
(xx) The applicable Securities Agreements constitute valid and
legally binding agreements of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity), and the Indenture
has been duly qualified under the Trust Indenture Act.
Such counsel shall also state that while he has not himself checked the
accuracy and completeness of, or otherwise verified, and is not passing upon and
assumes no responsibility for, the accuracy or completeness of the statements
contained in the Registration Statement or the Final Prospectus except to the
limited extent stated in clauses (iv) and (xv) of this Section 6(c), no facts
have come to the attention of such counsel which have led such counsel to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such Closing Date (other
than the financial statements and schedules and other financial information
contained therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that, as of its date and as of such Closing Date, the Final
Prospectus or any further amendment or supplement thereto made by the Company
prior to such Closing Date (other than the financial statements and schedules
and other financial information contained therein, as to which such counsel need
express no opinion) contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and such counsel does not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Final Prospectus
which are not filed or described as required.
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.
(d) The Company will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents as the
Representatives reasonably request;
(e) On the date of the Final Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and at the Closing Date for the
applicable Securities, Deloitte & Touche LLP shall have furnished to the
Representatives a letter, dated the respective dates of delivery thereof, in
form and substance reasonably satisfactory to you, confirming that they are
independent public accountants with respect to the Company and the Company's
subsidiaries within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder, and further to
the effect set forth in Annex III hereto;
(f) The Representatives shall have received from Deloitte &
Touche LLP (and furnished to you in form and substance satisfactory to you) a
review report with respect to "Management's Discussion and Analysis of Financial
Condition and Results of Operations of the Company", as set forth in the
Company's most recent reports on Forms 10-K and 10-Q, respectively, in
accordance with Statement on Standards for Attestation Engagement No. 8 issued
by the Auditing Standards Board of the American Institute of Certified Public
Accountants;
(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 any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Final Prospectus, and (ii) since the
12
respective dates as of which information is given in the Final Prospectus, there
shall not have been any change in the surplus of MetLife or the capital stock of
the Company or any increase in the long-term debt of the Company and its
respective subsidiaries considered as a whole, or any change, or any development
involving a prospective change, in or affecting the business, financial
position, stockholders' equity or results of operations of the Company and the
Significant Subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Final Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to proceed with
the offering or the delivery of the applicable Securities on the terms and in
the manner contemplated in the Final Prospectus;
(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 in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of the
applicable Securities on the terms and in the manner contemplated in the Final
Prospectus;
(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
reasonable judgment of the Representatives, be likely to prejudice materially
the success of the proposed issue, sale or distribution of the applicable
Securities, whether in the primary market or in respect of dealings in the
secondary market; (ii) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (iii) a suspension or
material limitation in trading in the Company's securities on the New York Stock
Exchange; (iv) a suspension or material limitation in clearing and/or settlement
in securities generally; (v) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or (vi) the
material outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war (including
without limitation as a result of an act of terrorism) if the effect of any such
event specified in this clause (vi) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the offering or the delivery of
the Securities being delivered on the Closing Date on the terms and in the
manner contemplated in the Final Prospectus;
(j) The Company shall have complied with any request by the
Representatives with respect to the furnishing of copies of the Final Prospectus
in compliance with the provisions of Section 4(c) hereof;
(k) At the Closing Date, the Representatives shall have
received a certificate of the Company, dated as of the Closing Date, to the
effect that (i) the representations and warranties of the Company contained in
Section 1 hereof are true and correct in all respects with the same force and
effect as though expressly made at and as of Closing Date and (ii) the Company
has complied in all respects with all agreements and all conditions on its part
to be performed under this Agreement at or prior to the Closing Date;
(l) The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements relating to the offering of the Securities hereunder; and
(m) 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, that the discussion contained in the Final Prospectus under the
caption "Certain U.S. Federal Income Tax Consequences to Non-United States
Persons" constitutes in all material respects (subject to the limitations and
qualifications set forth therein) a fair and accurate summary of the material
United States federal income tax consequences of the acquisition, ownership and
disposition of the Securities by non-United States persons.
7. Indemnification and Contribution.
13
(a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in (i)
the Registration Statement or any amendment or supplement (when considered
together with the document to which such supplement relates) thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any Preliminary Prospectus, the Final Prospectus
or 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
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; provided,
further, that the Company shall not be liable to any Underwriter under this
Section 7(a) with respect to any Preliminary Prospectus to the extent that a
court of competent jurisdiction has found by final and nonappealable order that
any such loss, claim, damage or liability of such Underwriter results 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 as then amended or supplemented (it being understood that
if at the time of any such claim such Underwriter shall certify that it has sent
or given the Final Prospectus as then amended or supplemented to any person
making such claim at or prior to the written confirmation of such sale, it shall
be presumed that such Final Prospectus has been so sent or given unless the
Company shall have sustained the burden of proving, in a court of competent
jurisdiction by a final and nonappealable order, that the facts are otherwise),
if (i) such delivery to such person is required by Section 5 of the Act, (ii)
the Company has furnished copies of such Final Prospectus as amended or
supplemented to such Underwriter a reasonable period of time prior to such
Underwriter being required so to deliver such Final Prospectus as amended or
supplemented and (iii) the untrue or alleged untrue statement or omission or
alleged omission of material fact contained in the Preliminary Prospectus was
corrected by such Final Prospectus as amended or supplemented.
(b) Each Underwriter will, severally and not jointly,
indemnify and hold harmless the Company, its directors and officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities 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 and any
other prospectus relating to the Securities, or any amendment or supplement
(when considered together with the document to which such supplement relates)
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement, the Final Prospectus and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company 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 by such omission. In case any such action
14
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party or any other indemnified party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnifying party and such indemnified party
shall have mutually agreed to the contrary, (ii) the indemnifying party has
failed within a reasonable time to retain counsel reasonably satisfactory to
such indemnified party or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the indemnifying party and such
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
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. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of 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
15
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.
(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 relating to such
Securities and, in addition, to require each nondefaulting Underwriter to
purchase its pro rata share (based on the aggregate number of shares of such
Securities or the 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
16
reason, Securities are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Securities, but the Company shall then be under no
further liability to any Underwriter in respect of such Securities except as
provided in Section 5 and Section 7 hereof.
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 applicable
Pricing Agreements.
12. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication; notices to the
Representatives shall be directed to the address of the Representatives as set
forth in the applicable Pricing Agreements with a copy to Debevoise & Xxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxx X. Xxxxxxxx,
Esq.; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary. 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. Consent to Jurisdiction. The Company agrees that any legal suit,
action or proceeding against the Company brought by any Underwriter or by any
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, arising out of or based
upon this Agreement or the transactions contemplated hereby may be instituted in
any State or federal court in the Borough of Manhattan, The City of New York,
New York, and, to the fullest extent permitted by applicable law, waives any
objection which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of such
courts in any suit, action or proceeding.
16. Offering Restrictions. Each of the Underwriters represents and
agrees that it has not offered, sold or delivered and it will not offer, sell or
deliver, directly or indirectly, any of the Securities, or distribute the
Preliminary Prospectus, the Final Prospectus or any other offering material
relating to the Securities, in or from any jurisdiction except under
circumstances that will result in compliance with the applicable laws and
regulations thereof and that will not impose any obligations on the Company,
except as set forth in this Agreement and the applicable Pricing Agreement. In
particular, each Underwriter severally represents and agrees as set forth in
Annex IV to this Agreement.
17. Counterparts. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
17
Very truly yours,
METLIFE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
and Treasurer
Accepted as of the date hereof
on behalf of each of the Underwriters:
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Principal
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
18
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 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.
I-1
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:
I-2
SCHEDULE I
TO PRICING AGREEMENT
NUMBER OF SHARES
OR PRINCIPAL
AMOUNT OF
SECURITIES TO
UNDERWRITERS BE PURCHASED
------------ ------------
.........................................
------------------------------------
.........................................
------------------------------------
.........................................
------------------------------------
.........................................
------------------------------------
-----------------
Total $
=================
I-3
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:
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Underwriters:
Other Terms, if any: [over-allotment options] [description of particular tax,
accounting or other unusual features of the Securities]
I-4
ANNEX II
SIGNIFICANT SUBSIDIARIES
METROPOLITAN LIFE INSURANCE COMPANY (NY)
GENAMERICA FINANCIAL CORPORATION (MO)
GENERAL AMERICAN LIFE INSURANCE COMPANY (MO)
REINSURANCE GROUP OF AMERICA, INCORPORATED (MO)
NEW ENGLAND LIFE INSURANCE COMPANY (MA)
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY (RI)
STATE STREET RESEARCH & MANAGEMENT COMPANY (DE)
II-1
ANNEX III
FORM OF COMFORT LETTER
November XX, 2001
[Address to underwriters]
Dear Sirs:
We have audited the consolidated balance sheets of MetLife, Inc. and
subsidiaries (the "Company") as of December 31, 2000 and 1999, and the related
consolidated statements of income, stockholders' equity and cash flows for each
of the three years in the period ended December 31, 2000, and the related
financial statement schedules, all included in the Company's annual report on
Form 10-K for the year ended December 31, 2000 ("Form 10-K"), and incorporated
by reference in Registration Statement No. 333-61282 on Form S-3 filed by the
Company under the Securities Act of 1933 (the "Act"); our report with respect
thereto is also incorporated by reference in that registration statement. The
registration statement, as amended on May 30, 2001, is herein referred to as the
registration statement. We have also reviewed (a) the unaudited interim
condensed consolidated balance sheet of the Company as of September 30, 2001,
the unaudited interim condensed consolidated statements of income for the
three-month and nine-month periods ended September 30, 2001 and 2000, the
unaudited interim condensed consolidated statements of cash flows for the
nine-month periods ended September 30, 2001 and 2000, and the unaudited interim
condensed consolidated statement of stockholders' equity for the nine-month
period ended September 30, 2001 included in the Company's Form 10-Q for the
quarter ended September 30, 2001 ("Third Quarter Form 10-Q") and incorporated by
reference in the registration statement as indicated in our report dated
November 6, 2001; (b) the Company's Management's Discussion and Analysis for the
year ended December 31, 2000, included in the Company's Form 10-K, as indicated
in our report dated August 7, 2001 and; (c) the Company's Management's
Discussion and Analysis for the three-month and nine-month periods ended
September 30, 2001 and 2000 included in the Company's Third Quarter Form 10-Q,
as indicated in our report dated November XX, 0000; our reports with respect
thereto are attached.
In connection with the registration statement --
1. We are independent certified public accountants with respect to the
Company within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Securities and Exchange Commission
("SEC").
III-1
2. In our opinion, the consolidated financial statements and financial
statement schedules audited by us and incorporated by reference in the
registration statement comply as to form in all material respects with the
applicable accounting requirements of the Securities Exchange Act of 1934,
and the related rules and regulations adopted by the SEC.
3. We have not audited any consolidated financial statements of the Company
as of any date or for any period subsequent to December 31, 2000; although
we have conducted an audit for the year ended December 31, 2000, the
purpose (and therefore the scope) of the audit was to enable us to express
our opinion on the consolidated financial statements as of December 31,
2000, and for the year ended, but not on the consolidated financial
statements for any interim period within that year. Therefore, we are
unable to and do not express any opinion on: (a) the unaudited interim
condensed consolidated balance sheet as of March 31, 2001, the related
unaudited interim condensed consolidated statements of income and cash
flows for the three-month periods ended March 31, 2001 and 2000, and the
unaudited interim condensed consolidated statement of stockholders' equity
for the three-month period ended March 31, 2001 included in the Company's
quarterly report on Form 10-Q for the quarter ended March 31, 2001; (b)
the unaudited interim condensed consolidated balance sheet as of June 30,
2001, the related unaudited interim condensed consolidated statements of
income for the three-month and six-month periods ended June 30, 2001 and
2000, the unaudited interim condensed consolidated statements of cash
flows for the six-month periods ended June 30, 2001 and 2000, and the
unaudited interim condensed consolidated statement of stockholders' equity
for the six-month period ended June 30, 2001 included in the Company's
quarterly report on Form 10-Q for the quarter ended June 30, 2001; (c) the
unaudited interim condensed consolidated balance sheet as of September 30,
2001, the unaudited interim condensed consolidated statements of income
for the three-month and nine-month periods ended September 30, 2001 and
2000, the unaudited interim condensed consolidated statements of cash
flows for the nine-month periods ended September 30, 2001 and 2000, and
the unaudited interim condensed consolidated statement of stockholders'
equity for the nine-month period ended September 30, 2001, included in the
Company's Third Quarter Form 10-Q, incorporated by reference in the
registration statement; or (d) on the consolidated financial position,
consolidated results of operations, or consolidated cash flows as of any
date or for any period subsequent to December 31, 2000.
III-2
4. For purposes of this letter we have read the 2001 minutes of meetings of
MetLife, Inc.'s stockholders, board of directors, executive committee,
audit committee, compensation committee, corporate social responsibility
committee and the nominating and corporate governance committee as set
forth in the minute books at November XX, 0000, officials of the Company
having advised us that the minutes of all such meetings through that date
were set forth therein and have carried out other procedures to November
XX, 0000, (our work did not extend to the period from November XX, 2001 to
November XX, 2001) with respect to the three-month and nine-month periods
ended September 30, 2001 and 2000. We have inquired of certain officials
of the Company who have responsibility for financial and accounting
matters whether the unaudited interim condensed consolidated balance sheet
as of September 30, 2001, the related unaudited interim condensed
consolidated statements of income for the three-month and nine-month
periods ended September 30, 2001 and 2000, the unaudited interim condensed
consolidated statements of cash flows for the nine-month periods ended
September 30, 2001 and 2000 and the unaudited interim condensed
consolidated statement of stockholders' equity for the nine-month period
ended September 30, 2001, incorporated by reference in the registration
statement, comply as to form in all material respects with the applicable
accounting requirements of the Securities Exchange Act of 1934 as it
applies to Form 10-Q and the related rules and regulations adopted by the
SEC.
The foregoing procedures do not constitute an audit of financial statements
conducted in accordance with auditing standards generally accepted in the United
States of America. Also, they would not necessarily reveal matters of
significance with respect to the comments in the following paragraph.
Accordingly, we make no representations regarding the sufficiency of the
foregoing procedures for your purposes.
5. Nothing came to our attention as a result of the foregoing procedures,
however, that caused us to believe that the unaudited interim condensed
consolidated financial statements described in item 4 do not comply as to
form in all material respects with the applicable accounting requirements
of the Securities Exchange Act of 1934 as it applies to Form 10-Q and the
related rules and regulations adopted by the SEC.
6. Company officials have advised us that no consolidated financial
statements as of any date or for any period subsequent to September 30,
2001, are available; accordingly, the procedures carried out by us with
respect to changes in consolidated financial statement items after
September 30, 2001, have, of necessity, been even more limited than those
with respect to the periods referred to in item 4. We have inquired of
certain officials of the Company who have responsibility for financial and
accounting matters whether (a) at November XX, 0000, there was any change
in the capital stock, increase in long-term debt or any decreases in
consolidated assets or stockholders' equity of the consolidated companies
as compared with amounts shown in the September 30, 2001, unaudited
interim condensed consolidated balance sheet incorporated by reference in
the registration statement or (b) for the period from October 1, 2001 to
November 16, 2001, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues or in
the total or per-share amounts of net income. On the basis of these
inquiries and our reading of the minutes as described in item 4, nothing
came to our attention that caused us to believe that there was any such
change, increase,
III-3
or decrease, except in all instances for changes, increases, or decreases
that the registration statement discloses have occurred or may occur.
7. For purposes of this letter, we have also read the items identified by you
on the attached copy of Form 10-K, Form 8-K dated November 6, 2001, the
Prospectus Supplement to the registration statement dated November 19,
2001 and Proxy Statement for the Annual Meeting of Shareholders held on
April 24, 2001, and have performed the following procedures, which were
applied as indicated with respect to the symbols explained below --
[SYMBOLS TO BE ADDED]
8. It should be noted that we make no representation regarding questions of
legal interpretation or regarding the sufficiency for your purposes of the
procedures enumerated in the preceding paragraph; also, such procedures
would not necessarily reveal any material misstatements of the amounts or
percentages listed above. Further, we have addressed ourselves solely to
the foregoing data as set forth in the registration statement and make no
representations regarding the adequacy of disclosures or regarding whether
any material facts have been omitted.
9. This letter is solely for the information of the addressees and to assist
the underwriters in conducting and documenting their investigation of the
affairs of the Company in connection with the offering of the securities
covered by the registration statement, and it is not to be used,
circulated, quoted, or otherwise referred to within or without the
underwriting group for any purpose, including but not limited to the
registration, purchase, or sale of securities, nor is it to be filed with
or referred to in whole or in part in the registration statement or any
other document, except that reference may be made to it in the
underwriting agreement or in any list of closing documents pertaining to
the offering of the securities covered by the registration statement.
Yours truly,
III-4
ANNEX IV
OFFERING RESTRICTIONS
Each Underwriter has severally represented and agreed specifically
that: (a) with respect to Securities which have a maturity of one year or more,
it and each of its affiliates have not offered or sold and will not offer or
sell any such Securities to persons in the United Kingdom prior to the expiry of
the period of six months from the issue date of such Securities except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purpose of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (b) it and each of its affiliates
have complied and will comply with all applicable provisions of the Financial
Services Xxx 0000 (the "Act") (and after they come into force, all applicable
provisions of the Financial Services and Markets Act 2000 (the "FSMA")) with
respect to anything done by it in relation to such Securities in, from or
otherwise involving the United Kingdom; and (c) it and each of its affiliates
have only issued or passed on and will only issue or pass on, in the United
Kingdom, before the repeal of Section 57 of the Act, any document received by it
in connection with the issue of such Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on. After the repeal of Section 57 of the
Act, it and each of its affiliates will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received by it in connection with
the issue or sale of such Securities in circumstances in which Section 21(1) of
the FSMA does not apply to the Company.
NOTICE TO CANADIAN RESIDENTS
Resale Restrictions
The distribution of the Securities in Canada is being made only on a
private placement basis exempt from the requirement that the Company prepare and
file a prospectus with the securities regulatory authorities in each province
where trades of Securities are made. Any resale of the Securities in Canada must
be made under applicable securities laws, which will vary depending on the
relevant jurisdiction, and which may require resales to be made under available
statutory exemptions or under a discretionary exemption granted by the
applicable Canadian securities regulatory authority. Purchasers are advised to
seek legal advice prior to any resale of the Securities.
Representations of Purchasers
By purchasing Securities in Canada and accepting a purchase
confirmation, a purchaser is representing to the Company and the dealer from
whom the purchase confirmation is received that:
- the purchaser (and any ultimate purchaser for which such
purchaser is acting as agent) is entitled under applicable
provincial securities laws to purchase the Securities without
the benefit of a prospectus qualified under those securities
laws and, in the case of purchasers in provinces other than
Ontario, without the services of a dealer registered under
such securities laws;
- where required by law, the purchaser is purchasing as
principal and not as agent;
- the purchaser has reviewed the text above under "Resale
Restrictions ";
- if the purchaser is resident in Ontario and is purchasing from
a fully registered dealer, (a) the purchaser is purchasing
Securities with the benefit of the prospectus exemption
provided by Section 72(1)(a), 72(1)(c) or 72(1)(d) of the
Ontario Securities Act or (b) the purchaser is a "portfolio
adviser" within the meaning of Ontario Securities Commission
IV-1
Rule 45-504 ("Rule 45-504") and is purchasing Securities on
behalf of a "managed account" within the meaning of Rule
45-504;
- if the purchaser is resident in British Columbia, the
purchaser is not an individual and is purchasing as principal
(if deemed by the British Columbia Securities Act to be
purchasing as principal) and is purchasing the Securities with
the benefit of the prospectus exemption provided by Section
74(2)(1), 74(2)(3), or 74(2)(4) of the British Columbia
Securities Act; and
- if the purchaser is a company, the purchaser was not
established solely for the purpose of acquiring Securities in
reliance on an exemption from applicable prospectus
requirements.
Rights of Action (Ontario Purchasers)
The Securities being offered are those of a foreign issuer and Ontario
purchasers will not receive the contractual right of action prescribed by
Ontario securities law. As a result, Ontario purchasers must rely on other
remedies that may be available, including common law rights of action for
damages or rescission or rights of action under the civil liability provisions
of the United States federal securities laws. Prospective purchasers are advised
to consult their own legal advisers as to which, or whether any, of such rights
may be available to them.
Enforcement of Legal Rights
All of the Company's directors and officers, as well as the experts
named in the Final Prospectus, may be located outside of Canada and, as a
result, it may not be possible for Canadian purchasers to effect service of
process within Canada upon the Company or such persons. All or a substantial
portion of the Company's assets and such persons may be located outside Canada
and, as a result, it may not be possible to satisfy a judgment against the
Company or such persons in Canada or to enforce a judgment obtained in Canadian
courts against the Company or persons outside of Canada.
Notice to British Columbia Residents
A purchaser of Securities to whom the Securities Act (British Columbia)
applies is advised that such purchaser is required to file with the British
Columbia Securities Commission an initial trade report within ten days of the
sale of any Securities acquired by such purchaser in this offering. The report
must be in the form attached to British Columbia Securities Commission Blanket
Order BOR #95/17, a copy of which may be obtained from the Company. Only one
report must be filed for Securities acquired on the same date and under the same
prospectus exemption.
Taxation and Eligibility for Investment
Canadian purchasers of Securities should consult their own legal and
tax advisors with respect to the tax consequences of an investment in the
Securities in their particular circumstances and about the eligibility of the
Securities for investment by the purchaser under relevant Canadian legislation.
IV-2
