EXECUTION COPY
METLIFE, INC.
PREFERRED SHARES
UNDERWRITING AGREEMENT
June 6, 2005
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
Amended and Restated Certificate of Incorporation of the Company (including the
applicable Certificate of Designation), as applicable (each a "Securities
Agreement"), and identified in such Pricing Agreement.
Particular sales of Securities may be made from time to time to the
Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of
such Securities or the total number of shares, as the case may be, the initial
public offering price of such Securities, the purchase price to the Underwriters
of such Securities, the names of the Underwriters of such Securities, the names
of the Representatives of such Underwriters and the principal amount or number
of shares, as the case may be, of such Securities to be purchased by each
Underwriter. In addition, such Pricing Agreement shall set forth the date, time
and manner of delivery of such Securities and payment therefor. Such Pricing
Agreement shall also specify
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(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. 333-124358) under the
Securities Act of 1933, as amended (the "Act"), which has become effective, for
the registration under the Act of the Securities. The Company meets the
requirements for use of Form S-3 under the Act. 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 any
document filed 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 via the Electronic Data Gathering,
Analysis and Retrieval ("EDGAR") system, except to the extent permitted by
Regulation S-T;
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(b) As of the date hereof, as of the effective date of the Registration
Statement, 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 or any settlement date (as defined
in the Pricing Agreement), (i) the Registration Statement, as amended as of any
such time, and the Final Prospectus, as amended or supplemented as of any such
time, will comply in all material respects with the applicable requirements of
the 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) 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 (as hereinafter
defined) 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 subsidiary of the Company that would
qualify as a "Significant Subsidiary" of the Company under Regulation S-X (each,
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 subsidiaries considered as a whole, other than as described in or
contemplated by the Final 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)
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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; MetLife was duly converted
from a mutual life insurance company to a stock life insurance company on April
7, 2000 in accordance with the Plan of Reorganization of MetLife under Section
7312 of the New York Insurance Law; each Significant Subsidiary is validly
existing as a corporation and is in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as described in the 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
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subscribe for or to purchase, any securities or obligations convertible into or
any contracts or commitments to sell shares of the Company's capital stock or
any such options, rights, warrants, convertible securities or obligations; the
description of the Company's stock option plans and the options or other rights
granted and exercised thereunder set forth in the 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 and the
issuance and sale of the Securities to the Underwriters pursuant to this
Agreement and the applicable Pricing Agreements; all of the issued shares of
capital stock or other ownership interests of MetLife have been duly and validly
authorized and issued, are fully paid and nonassessable and are owned directly
or indirectly by the Company free and clear of all liens, encumbrances, equities
or claims; all of the issued shares of capital stock of One Madison Investment
(Cayco) Limited have been duly and validly authorized and issued, are fully paid
and nonassessable and, except for the de minimis indirect ownership interest of
a third party, 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 on the Closing Date 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 (each, an
"Insurance Subsidiary" and collectively, the "Insurance Subsidiaries") is
licensed as an insurance company in its respective jurisdiction of incorporation
and is duly licensed or authorized as an insurer in each other jurisdiction
where it is required to be so licensed or authorized to conduct its business, in
each case with such exceptions as would not have, individually or in the
aggregate, a Material Adverse Effect; except as otherwise described in the 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
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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 non-compliance, 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;
(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
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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 Significant Subsidiary is a party or by which the
Company or any Significant Subsidiary is bound or to which any of the property
or assets of the Company or any Significant Subsidiary is subject, or which
affects the validity, performance or consummation of the transactions
contemplated by this Agreement, nor will such action result in any violation of
any statute or any order, rule or regulation of any court or insurance
regulatory authority or other governmental agency or body having jurisdiction
over the Company or any Significant Subsidiary or any of their properties, in
each case other than such breaches, conflicts, violations, or defaults which
individually or in the aggregate, would not have a Material Adverse Effect and
would not adversely affect the validity or performance of the Company's
obligations under the Securities, the applicable Securities Agreements, this
Agreement and any Pricing Agreement; nor will such action result in any
violation of the provisions of the certificate of incorporation or by-laws of
the Company or any Significant Subsidiary; and no Approval of or Filing with any
such court or insurance regulatory authority or other governmental agency or
body is required for the issue or sale of the Securities, except (i) the
registration under the Act of the Securities and (ii) such Approvals or Filings
as may be required under 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 and the
applicable Pricing Agreements or which, if determined adversely to the Company
or its subsidiaries, could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect or would materially and adversely
affect the ability of the Company to perform its obligations under the
Securities Agreements or this Agreement; and, to the knowledge of the Company,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others other than as set forth in the Final Prospectus;
(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;
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(q) The statements set forth in the Final Prospectus under the caption
"Description of the Preferred Shares", 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
2004 Annual Report on Form 10-K and the Company's Quarterly Report on Form 10-Q
for the three months ended March 31, 2005, in each case 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, the Final Prospectus and any Preliminary Prospectus, 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
(for the avoidance of doubt, the unaudited pro forma condensed consolidated
financial information, together with the related schedules and notes, included
or incorporated by reference in the Registration Statement, the Final Prospectus
and any Preliminary Prospectus shall not be deemed the financial statements of
the Company and its consolidated subsidiaries); the pro forma consolidated
statement of income and the pro forma consolidated balance sheet and the related
notes thereto set forth in the Registration Statement, the Final Prospectus and
any Preliminary Prospectus have been prepared in all material respects in
accordance with the applicable requirements of Rule 11-02 of Regulation S-X
promulgated under the Securities Exchange Act of 1934, as amended, have been
compiled on the pro forma basis described therein, and the assumptions used in
the preparation thereof were reasonable at the time made and the adjustments
used therein are based upon good faith estimates and assumptions believed by the
Company to be reasonable at the time made;
(s) Deloitte & Touche LLP, which has audited certain consolidated
financial statements of the Company and its subsidiaries, is an Independent
Registered Public Accounting Firm as required by the Act and the rules and
regulations of the Commission thereunder;
(t) Neither the Company nor any Significant Subsidiary is, or after giving
effect to the issue and sale of the Securities pursuant to any Pricing Agreement
will be, an "investment company", as such term is defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the rules
and regulations thereunder, although certain separate accounts of MetLife and of
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;
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(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; and
(x) The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act) that
complies with the requirements of the Exchange Act and has been designed by the
Company's principal executive officer and principal financial officer, or under
their supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. As
disclosed in the Company's 2004 Annual Report on Form 10-K, the Company's
internal control over financial reporting is effective and the Company is not
aware of any material weaknesses in its internal control over financial
reporting.
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, as the case may be, 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 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
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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 or the Exchange 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 EDGAR, 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
10
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) Not to offer, sell, contract to sell or otherwise dispose of, directly
or indirectly, or publicly announce an intention to do any of the foregoing,
except with the prior written consent of the Representatives (which consent
shall not be unreasonably withheld): (i) any shares of common stock, par value
$0.01 per share of the Company (the "Common Stock") or securities convertible
into or exchangeable for shares of Common Stock, during the period beginning
from June 1, 2005 and continuing to and including September 18, 2005 (other than
(x) 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 or (y) the sale or other disposition of Common Stock by
any separate account, investment company or similar investment vehicle managed
or advised by the Company or any affiliate of the Company that invests in or
seeks to replicate the performance of a market index that includes the
securities of the Company, in order to rebalance its investment portfolio to
match changes in the composition or weighting of companies within such index);
or (ii) any shares of U.S. dollar denominated preferred stock of the Company or
any securities substantially similar to U.S. dollar denominated preferred stock,
during the period beginning on the date hereof and continuing to and including
the date that is 60 days after delivery of the Securities. Notwithstanding the
foregoing, the Company shall not be prohibited from issuing up to $3 billion in
mandatorily convertible equity securities as part of the financing of the
Acquisition (as defined in the Final Prospectus) or from issuing shares of
Common Stock or non-voting convertible participating preferred stock to
Citigroup Inc. in an aggregate amount not to exceed $3 billion as contemplated
in the Acquisition Agreement (as defined in the Final Prospectus) or from
issuing the Securities or issuing additional preferred securities in an amount
not to exceed, when taken together with the Securities, $2.5 billion in
aggregate liquidation preference as part of the financing of the Acquisition;
and
(f) During a period of five years from the effective date of the
Registration Statement, to furnish to the Representatives copies of all reports
or other communications (financial or other) furnished to stockholders of the
Company, and to furnish to the Representatives as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which the Securities or any
class of securities of the Company is listed (such financial statements to be on
a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission), provided that reports and financial statements furnished
to or filed with the Commission, and publicly available on EDGAR, or furnished
on the Company's website, shall be deemed to have been furnished to the
Representatives under this Section 4(f).
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
11
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
true and correct, the condition that the Company shall have performed all of its
obligations hereunder and under the Pricing Agreement relating to such
Securities to be performed at or before the Closing Date, and the following
additional conditions. For purposes of this Section 6, (i) the term "Securities"
shall include any Option Securities (as defined in the Pricing Agreement) as to
which the Underwriters have exercised the option set forth in the Pricing
Agreement and (ii) the term "Closing Date" shall mean, with respect to any
Option Securities, the applicable settlement date for the purchase of the Option
Securities by the Underwriters.
(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) Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters,
shall have furnished to the Underwriters such written opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company, the
validity of the Securities being delivered on
12
such Closing Date, the Registration Statement and the Final Prospectus, and such
other related matters as the Underwriters may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Richard S. Collins, Chief Counsel - General Corporate, 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 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 descriptions thereof contained in the Final
Prospectus;
(ii) 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;
(iii) 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;
(iv) Each Insurance Subsidiary that is required to be organized or
licensed as an insurance company in its jurisdiction of incorporation is so
licensed, 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;
and, except as otherwise described in the Final Prospectus, 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
13
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 such Insurance Subsidiary to its
parent which would have, individually or in the aggregate, a Material Adverse
Effect;
(v) 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;
(vi) 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;
(vii) 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 Significant Subsidiary is a party or to which any property of the
Company or any Significant Subsidiary is subject, challenging the transactions
contemplated by this Agreement and the applicable Pricing Agreements or which,
if determined adversely to the Company or any Significant Subsidiary,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or would materially and adversely affect the ability of
the Company to perform its obligations under the Securities Agreements or this
Agreement; and, to 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;
14
(viii) 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 Significant Subsidiary is a party or by which the Company or any
Significant Subsidiary is bound or to which any of the property or assets of the
Company or any Significant Subsidiary is subject, or which affects the validity,
performance or consummation of the transactions contemplated by this Agreement,
nor will such action result in any violation of any statute or any order, rule
or regulation of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or any
Significant Subsidiaries or any of their properties, in each case other than
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; provided,
that no opinion need be given with respect to (i) the Act, the Exchange 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;
(ix) The statements set forth in the Final Prospectus 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, 2004 and the Company's Quarterly
Report on Form 10-Q for the three months ended March 31, 2005, in each case 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; and
(x) 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.
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
15
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 hereof, 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 Registered 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 II hereto;
(f) The Underwriters 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. 10 issued by the Auditing Standards
Board of the American Institute of Certified Public Accountants;
(g) On the date hereof, 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, KPMG LLP shall have furnished to the Representatives a
letter, dated the respective dates of delivery thereof, in the form set forth in
Annex III hereto;
(h) 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 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 its 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;
(i) 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
16
or any Significant Subsidiary or the financial strength or claims paying ability
of the Company or any Significant Subsidiary 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;
(j) 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;
(k) 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;
(l) 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; and
(m) LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the Company, shall
have furnished to the Underwriters their 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;
17
(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) Each Significant Subsidiary 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;
(v) Neither the Company nor any Significant Subsidiary is, or after giving
effect to the issue and sale of the Securities pursuant to any Pricing Agreement
will be, an "investment company" required to be registered under the Investment
Company Act, although certain separate accounts of MetLife and of its
subsidiaries are required to register as investment companies under the
Investment Company Act;
(vi) 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;
(vii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been issued,
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Act;
(viii) The statements set forth in the Final Prospectus under the captions
"Description of the Preferred Shares" and "Proposed Acquisition of the Citigroup
Life Insurance and Annuities Business", insofar as they purport to constitute a
summary of the terms of the Securities, the Acquisition Agreement and related
agreements, and under the caption "Underwriting", insofar as it purports to
describe the provisions of the laws and documents referred to therein, are
accurate and complete in all material respects;
(ix) The discussion contained in the Final Prospectus under the caption
"Certain U.S. Federal Income Tax Consequences" 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.
18
(x) 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 clauses (viii) and (ix), 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;
(xi) 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;
(xii) When the Securities have been 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 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
(xiii) 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).
Such counsel shall also state that while such counsel has not itself
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 (viii) and (ix) of this Section
6(m), no facts have come to the attention of such counsel which have led such
counsel to believe that, as of the date of the Pricing Agreement, 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
19
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 such counsel
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.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in (i) the Registration Statement
or any amendment or supplement (when considered together with the document to
which such supplement relates) thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) any Preliminary Prospectus, 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
20
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 (or actions in respect thereof) to which the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement, the
Final Prospectus, 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, 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 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
21
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. In no event shall the
indemnifying party be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same allegations or
circumstances.
(d) If the indemnification provided for in this Section 7 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, other than due to the express
provisions thereof, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the applicable
Securities to which any such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the applicable Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Final Prospectus relating to the applicable Securities.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection
22
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of the applicable
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act. The obligations of the Underwriters
under this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his consent, is named in the Registration Statement as about to become
a director of the Company) and to each person, if any, who controls the Company
within the meaning of the Act.
8. Defaulting Underwriters. (a) If any Underwriter shall default in its
obligation to purchase the Securities which it has agreed to purchase under the
Pricing Agreement relating to such Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Securities on such
terms. In the event that, within the respective prescribed periods, the
Representatives notify the Company that the Representatives have so arranged for
the purchase of such Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Securities, the Representatives
or the Company shall have the right to postpone the Closing Date for such
Securities for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the Final
Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Final Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Securities.
(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
23
principal amount of such Securities, as applicable, which remains unpurchased
does not exceed ten percent of the aggregate number of shares of such Securities
or the aggregate principal amount of the Securities, as applicable, to be
purchased on such Closing Date, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the aggregate number of shares of
such Securities or the aggregate principal amount of Securities, as applicable,
which such Underwriter agreed to purchase under the Pricing Agreement relating
to such Securities and, in addition, to require each nondefaulting Underwriter
to purchase its pro rata share (based on the aggregate number of shares of such
Securities or the aggregate principal amount of Securities, as applicable, which
such Underwriter agreed to purchase under such Pricing Agreement) of the
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate number of
shares of such Securities or the aggregate principal amount of such Securities,
as applicable, which remains unpurchased exceeds ten percent of the aggregate
number of shares of such Securities or the aggregate principal amount of such
Securities, as applicable, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Securities shall thereupon terminate, without liability on the part of any
nondefaulting Underwriter or the Company, except for the expenses to be borne by
the Company and the Underwriters as provided in Section 5 hereof and the
indemnity and contribution agreements in Section 7 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
9. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, the
Company or any officer or director or controlling person of the Company and
shall survive delivery of and payment for the Securities.
10. Effect of Termination of Pricing Agreement or Nondelivery of
Securities. If any Pricing Agreement shall be terminated pursuant to Section 8
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Securities covered by such Pricing Agreement except as
provided in Section 5 and Section 7 hereof; but, if for any other reason,
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses, 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.
24
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 (i) Cleary Gottlieb
Steen & Hamilton LLP, One Liberty Plaza, New York, New York, 10006, attention of
David Lopez, Esq.; if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to MetLife, Inc., 27-01 Queens Plaza North, Long
Island City, New York 11101, Attention: Treasurer. 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.
25
16. 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.
Very truly yours,
METLIFE, INC.
By:
/s/ Anthony J. Williamson
------------------------------------------
Name: Anthony J. Williamson
Title: Senior Vice President and Treasurer
26
Accepted as of the date hereof
on behalf of each of the Underwriters:
BANC OF AMERICA SECURITIES LLC
By:
/s/ Lily Chang
- -----------------------------------
Name: Lily Chang
Title: Principal
GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
- -----------------------------------
(Goldman, Sachs & Co.)
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ Paul Brown
-------------------------------
Name: Paul Brown
Title: Director
27
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 [ ], 2005 (the "Underwriting Agreement"), to issue
and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Underwritten Securities").
In addition, subject to the terms and conditions stated herein and in the
Underwriting Agreement, if the Underwriters sell more than the total number of
Underwritten Securities, the Underwriters shall have an option to purchase,
severally and not jointly, up to an additional [ ] Securities (the "Option
Securities", if any, together with the "Underwritten Securities, the
"Securities") from the Company to cover such sales. Said option may be exercised
in whole or in part at any time on or before the 30th day after the date of the
Final Prospectus upon written or facsimile notice to the Company setting forth
the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date (as defined
below). The number of Option Securities to be purchased by each Underwriter
shall be approximately in the same proportion as set forth in Schedule II
hereto. Any date on which Option Securities are purchased, if such date is not
the Closing Date, is referred to herein and in the Underwriting Agreement as a
"settlement date". If settlement for the Option Securities occurs after the
Closing Date, the Company will deliver to the Representatives on the settlement
date for the Option Securities, and the obligation of the Underwriters to
purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 of the Underwriting Agreement.
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 and the
Closing Date, 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 Securities which are the
subject of this Agreement. Each reference to the Representatives herein and in
the provisions
I-1
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 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 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 Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
METLIFE, INC.
By: ____________________________
Name:
Title:
I-2
Accepted as of the date hereof
on behalf of each of the Underwriters:
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
I-3
SCHEDULE I
TO PRICING AGREEMENT
Number of Shares
or Principal
Amount of
Securities to
Underwriters be Purchased
(Plus up to an additional [ ] shares,
subject to the terms of the Pricing
Agreement and the Underwriting Agreement)
TOTAL 24,000,000
SI-1
SCHEDULE II
TO PRICING AGREEMENT
Underwriting Agreement, dated
Registration Statement Nos. 333-
Title, Purchase Price and Description of Securities:
TITLE:
APPLICABLE SECURITIES AGREEMENTS:
NUMBER OF SHARES: 24 million shares
ISSUE DATE:
TERM:
PAYMENT DATES:
PRICE TO THE PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
TERMS OF THE SECURITIES:
CLOSING DATE, TIME AND LOCATION:
DESIGNATED REPRESENTATIVES:
ADDRESSES FOR NOTICES, ETC.:
IF TO THE REPRESENTATIVES:
With a copy to:
Attention:
IF TO THE COMPANY:
SII-1
ANNEX II
[DELOITTE & TOUCHE LLP LETTER]
II-1
ANNEX III
[KPMG LLP LETTER]
III-1