[EXECUTION COPY]
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INTERNATIONAL DISTRIBUTION AGREEMENT
BY AND BETWEEN
CITIGROUP INC.
AND
METLIFE, INC.
AS OF JULY 1, 2005
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS................................................................................. 1
Section 1.1. Defined Terms....................................................................... 1
Section 1.2. Purposes of Agreement............................................................... 5
Section 1.3. Construction........................................................................ 6
Section 1.4. Headings............................................................................ 6
ARTICLE II. REPRESENTATIONS AND WARRANTIES............................................................. 6
Section 2.1. Representations and Warranties of Parent............................................ 6
Section 2.2. Representations and Warranties of Purchaser......................................... 7
ARTICLE III. INTERNATIONAL DISTRIBUTION................................................................ 7
Section 3.1. Selling Agreements.................................................................. 7
Section 3.2. Exclusive Distribution Arrangements................................................. 8
Section 3.3. Non-Exclusive Distribution Arrangements............................................. 8
Section 3.4. Private Label Products.............................................................. 9
Section 3.5. New Products; New Countries; Substitute Products.................................... 10
Section 3.6. Acquisitions........................................................................ 11
Section 3.7. Reinsurance of Products Distributed on Behalf of Third Party Insurers............... 11
Section 3.8. No Obligation....................................................................... 13
Section 3.9. Credicard........................................................................... 13
Section 3.10. Corretora........................................................................... 14
ARTICLE IV. ACCESS AND BRANDING........................................................................ 14
Section 4.1. Access.............................................................................. 14
Section 4.2. Branding; Use of Names; Confidential Information; Approval of Certain Materials..... 15
ARTICLE V. TERM OF THE AGREEMENT; CERTAIN CONDITIONS................................................... 16
Section 5.1. Term................................................................................ 16
Section 5.2. Survival............................................................................ 17
Section 5.3. Certain Conditions.................................................................. 17
ARTICLE VI. INDEMNIFICATION............................................................................ 19
Section 6.1. Indemnification of Parent........................................................... 19
Section 6.2. Indemnification of Purchaser........................................................ 19
Section 6.3. Indemnity Provisions in International Selling Agreements............................ 19
Section 6.4. Indemnification Procedures.......................................................... 19
Section 6.5. General............................................................................. 20
ARTICLE VII. MISCELLANEOUS............................................................................. 21
Section 7.1. Equitable Remedies.................................................................. 21
Section 7.2. Severability........................................................................ 21
Section 7.3. Further Assurance and Assistance.................................................... 21
Section 7.4. Notices............................................................................. 21
Section 7.5. Successors and Assigns.............................................................. 22
Section 7.6. Governing Law....................................................................... 22
Section 7.7. Jurisdiction; Venue; Consent to Service of Process.................................. 23
Section 7.8. Entire Agreement.................................................................... 23
Section 7.9. Amendment and Waiver................................................................ 23
Section 7.10. Access to Records................................................................... 23
Section 7.11. Counterparts........................................................................ 24
Section 7.12. WAIVER OF JURY TRIAL................................................................ 24
INTERNATIONAL DISTRIBUTION AGREEMENT
THIS INTERNATIONAL DISTRIBUTION AGREEMENT (this "Agreement"), dated as of
July 1, 2005, is made by and between Citigroup Inc., a Delaware corporation
("Parent"), and MetLife, Inc., a Delaware corporation ("Purchaser").
WHEREAS, Purchaser and certain of its Affiliates provide insurance and
annuity products throughout the United States and in numerous countries around
the world;
WHEREAS, Parent, through its Affiliates, has an extensive proprietary
distribution network that distributes, on behalf of insurance companies,
insurance and annuity products throughout the United States and in numerous
countries around the world;
WHEREAS, Parent and Purchaser have entered into an Acquisition Agreement,
dated as of January 31, 2005 (the "Acquisition Agreement"), pursuant to which
Purchaser will acquire on the terms and subject to the conditions set forth
therein, all of the outstanding shares of capital stock of certain subsidiaries
of, and the equity interests owned by Parent in certain joint ventures of,
Parent or its Affiliates, including the Travelers Insurers;
WHEREAS, in connection with the transactions contemplated by the
Acquisition Agreement, the parties hereto desire to enter into a distribution
relationship inside the United States pursuant to a Domestic Distribution
Agreement to be entered into on the date of this Agreement and the distribution
relationship outside the United States contemplated by this Agreement;
WHEREAS, this Agreement has been restated from the form hereof attached to
the Acquisition Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition to
closing of the transactions contemplated by the Acquisition Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
promises herein contained, the parties do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. For purposes of this Agreement, unless the
context requires otherwise, the following terms shall have the following
meanings:
"Acquisition Agreement" has the meaning set forth in the recitals hereto.
"Adequate Financial Strength" means with respect to the applicable
Purchaser Insurer's distribution of a Product through an International Parent
Distributor, the financial strength of such Purchaser Insurer as it relates to
such Product reasonably determined in good faith by the applicable International
Parent Distributor on the basis of criteria which such International Parent
Distributor reasonably believes are utilized in the industry or by similarly
situated distributors in
evaluating other insurers (considered as a group) or any Purchaser Insurer,
provided that to the extent other insurers provide products which are
substantially similar to the Product sold by such Purchaser Insurer through the
applicable International Parent Distributor such reasonable determination shall
also be made on the basis of criteria which such International Parent
Distributor has knowledge of and reasonably believes are utilized in evaluating
such insurers as to such Product. Such criteria will take into account factors
such as the availability of financial strength ratings in the country in which
the products of such Purchaser Insurer are sold. For the avoidance of doubt,
each International Parent Distributor acknowledges that immediately prior to the
date hereof the Purchaser Insurer providing a Product to it had Adequate
Financial Strength with respect to such Product on such date.
"Affiliate" shall mean, with respect to any Person, any other Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with such first Person. The term
"control" (including its correlative meanings "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise).
"Agreement" shall have the meaning set forth in the introductory paragraph
hereof.
"Asia-Pac RCA" shall have the meaning set forth in Section 3.7(e).
"Comparable Distributor" shall mean a distributor using a substantially
similar approach to the marketing, servicing, sales support and overall
distribution of products.
"Competitive" means (i) the terms, total compensation, customer appeal,
consumer pricing and value, wholesaler coverage, training and support, features
and service standards and metrics of the applicable product, taken as a whole,
are at least equivalent to those of other comparable products, considered as a
group, then distributed by the applicable Affiliate of Parent and (ii) the
Purchaser Insurer shall have Adequate Financial Strength.
"Confidential Information" shall have the meaning set forth in Section
4.2(b).
"Covered Business" means all policies, certificates or coverages existing
under, or in respect of, all Reinsured Products as of the date hereof, together
with all new policies, certificates or coverages sold or effected under such
Reinsured Products and any new product distributed by a Reinsured Product
Distributor in any country that is substantially similar to a Reinsured Product
distributed by such Reinsured Product Distributor in such country.
"CSL Agreement" has the meaning ascribed to such term in Section 3.7(d).
"Covered Country" means each of the following countries: Argentina,
Australia, Belgium, Brazil, Guam, Hong Kong, Hungary, Ireland, Japan, Poland and
the United Kingdom.
"Exclusive Products" means the Products designated on Schedule 3.2(a) as
being subject to an exclusive relationship.
"Existing Product" has the meaning set forth in Section 3.5(c).
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"First Term" means the five-year period commencing on the date of this
Agreement and ending on the fifth anniversary of the date of this Agreement.
"Indemnified Party" has the meaning set forth in Section 6.4.
"Indemnifying Party" has the meaning set forth in Section 6.4.
"International Exclusive Parent Distributor" means each International
Parent Distributor to which a Travelers Insurer is the exclusive provider of any
Product on the date of this Agreement and such Person's successors and assigns.
"International Parent Distributor" means (i) any Person Affiliated with
Parent that, as of the date of this Agreement, distributes any Product that a
Travelers Insurer offers in any Covered Country and such Person's successors and
assigns and (ii) any Person Affiliated with Parent that distributes any product
offered by a Purchaser Insurer in any country other than a Covered Country
pursuant to an arrangement contemplated by Sections 3.4(b), 3.5(b) and 3.6(b)
(but in each case only from and after such time that such Person begins
distributing such product for a Purchaser Insurer) and such Person's successors
and assigns.
"International Selling Agreements" has the meaning set forth in Section
3.1.
"Law" shall have the meaning set forth in the Acquisition Agreement.
"Level Playing Field" means, with respect to a product, Parent (i) shall,
and shall cause any International Parent Distributor entering into an
International Selling Agreement with respect to such product pursuant to Section
3.1 to, afford the same access to its distribution platforms for such product
offered by a Travelers Insurer (or a Purchaser Insurer, as applicable) as the
access it affords to comparable products offered by a Third Party Insurer and
(ii) shall not, and shall cause its Affiliates (including the International
Parent Distributors) not to, provide to its Sales Force any compensation or
other economic inducement or benefit for the sale of comparable products sold in
a comparable sales support and compensation framework offered by a Third Party
Insurer that are more favorable than the compensation or other economic
inducements or benefits provided to such Sales Force for the sale of such
products offered by a Travelers Insurer (or a Purchaser Insurer, as applicable);
provided, that a Level Playing Field may include variations in Sales Force
compensation that are (x) based upon neutral criteria that do not differentiate
between product providers, such as achieving sales volume or persistency
objectives, or (y) for products (including combined product and service
arrangements) for which distributor compensation is negotiated by the provider
on a sale-by-sale basis, such as group retirement products.
"Licensing Agreement" shall have the meaning set forth in the Acquisition
Agreement.
"Local Incumbent" has the meaning set forth in Section 3.7.
"Losses" has the meaning set forth in Section 6.1.
"Marks" shall mean the Parent Distributor Marks, as defined in the
Licensing Agreement in respect of this Agreement.
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"New Products" means (i), with respect to each Covered Country, any life
insurance or annuity product that a Purchaser Insurer is authorized to offer but
was not included among the types of insurance or annuity products distributed by
an International Parent Distributor in such Covered Country on the date of this
Agreement and (ii) products offered by a Purchaser Insurer pursuant to
arrangements contemplated by Sections 3.5(b) and 3.6(b). For avoidance of doubt,
the addition of new features to Products shall not constitute New Products in
whole or in part, regardless of whether any insurance regulatory filing is
required in connection therewith.
"Non-Exclusive Products" has the meaning set forth in Section 3.3.
"Parent" has the meaning set forth in the introductory paragraph hereof.
"Parent Indemnified Parties" has the meaning set forth in Section 6.1.
"Parent Standards and Practices" means the client service and relationship
standards, business practices, ethical standards, customer privacy and
protection policies and general service quality standards, reputational
considerations and industry standards, as determined from time to time by Parent
or any of its Affiliates, provided that such Parent Standards and Practices, to
the extent they relate to a Product or New Product and/or International Parent
Distributor, shall be applied, and changes thereto shall be made, without
discriminating in any material manner against any Travelers Insurer or Purchaser
Insurer, as applicable, relative to all other similarly situated providers of
such Products or New Products distributed by such International Parent
Distributor.
"Person" shall have the meaning set forth in the Acquisition Agreement.
"PLP Distributor" has the meaning set forth in Section 3.4(b).
"Private Label Product" means a life insurance or annuity product
customized for a PLP Distributor in a Covered Country or Supplemental Country
that (i) is branded under the name of the PLP Distributor in such Covered
Country or Supplemental Country or (ii) is a variable life insurance or variable
annuity contract that offers as an option more than two investment choices or
mutual funds that are advised or managed by Parent or a Parent Affiliate (or any
successor to the Parent or a Parent Affiliate of substantially all of the
business or assets of the Parent or such Parent Affiliate which relate primarily
to the asset management business), including an PLP Distributor (in all cases in
the capacity of either an advisor or sub-advisor). For the avoidance of doubt
and without limitation, a Private Label Product (whether existing on the date of
this Agreement or thereafter) shall be deemed a Product for all purposes under
this Agreement.
"Products" means the life insurance and annuity products issued by the
Travelers Insurers and distributed through the International Parent Distributors
on the date of this Agreement, and any Substitute Products distributed in
replacement thereof pursuant to Section 3.5(c).
"Purchaser" shall have the meaning set forth in the introductory paragraph
hereof.
"Purchaser Indemnified Parties" has the meaning set forth in Section 6.2.
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"Purchaser Insurer" means any insurance company Affiliate of Purchaser,
including the Travelers Insurers.
"Reinsured Product Distributor" means each Affiliate of Parent who, on the
date of this Agreement, distributes life insurance or annuity products on behalf
of a Local Incumbent.
"Reinsured Products" means all life insurance and annuity products being
distributed by an Affiliate of Parent, written by a Local Incumbent and
reinsured by a Reinsurer as of the date of this Agreement.
"Reinsurer" has the meaning set forth in Section 3.7.
"Sales Force" means those point of sale representatives and their direct
supervisors utilized by Parent, International Parent Distributors or one of
their respective Affiliates whose job responsibility includes the sale or
promotion of Products or New Products offered by a Travelers Insurer (or a
Purchaser Insurer, as applicable).
"Second Term" means the five-year period commencing upon the expiration of
the First Term and ending on the tenth anniversary of the date of this
Agreement.
"Substitute Product" has the meaning set forth in Section 3.5(c).
"Supplemental Country" means each of the following countries: Chile,
China, India, Indonesia, South Korea, Taiwan, and Uruguay.
"Target Affiliated Distributor" means any Person Affiliated with Parent
that (i) was an Affiliate of a Target Business (as defined in the Acquisition
Agreement) immediately prior to the acquisition of such Target Business by
Parent or an Affiliate of Parent and (ii) is engaged in the business of
distributing financial services products.
"Term" has the meaning set forth in Section 5.1.
"Third Party Claim" has the meaning set forth in Section 6.4.
"Third Party Insurer" means an insurance company that is not Affiliated
with Purchaser.
"Travelers Insurers" means the International Insurance Companies (as
defined in the Acquisition Agreement) and the Joint Ventures (as defined in the
Acquisition Agreement) to be acquired by Purchaser pursuant to the Acquisition
Agreement and their successors and assigns, and with respect to a Substitute
Product that is offered pursuant to Section 3.5(c), a Purchaser Insurer and its
successors and assigns.
Section 1.2 Purposes of Agreement. Notwithstanding anything in this
Agreement to the contrary, Purchaser and Parent agree that this Agreement is
intended to set forth certain principal business terms upon which they will
enter into International Selling Agreements during the Term and that nothing
herein creates an International Selling Agreement.
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Section 1.3 Construction. For the purposes of this Agreement: (i) words
(including capitalized terms defined herein) in the singular shall be held to
include the plural and vice versa, and words (including capitalized terms
defined herein) of one gender shall be held to include the other gender as the
context requires; (ii) the terms "hereof," "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole (including all of the Schedules) and not to any particular
provision of this Agreement, and Article, Section, paragraph and Schedule
references are to the Articles, Sections, paragraphs and Schedules to this
Agreement, unless otherwise specified; (iii) the word "including" and words of
similar import when used in this Agreement shall mean "including, without
limitation"; (iv) all references to any period of days shall be deemed to be to
the relevant number of calendar days unless otherwise specified; and (v)
"commercially reasonable efforts" shall not require a waiver by any party of any
material rights or any action or omission that would be a breach of this
Agreement.
Section 1.4 Headings. The Article and Section headings contained in this
Agreement are inserted for convenience of reference only and shall not affect
the meaning or interpretation of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Parent. Parent hereby
represents and warrants to Purchaser as set forth below.
(a) Parent is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation.
(b) Parent has all necessary corporate power and authority to make,
execute and deliver this Agreement and to perform all of the obligations to be
performed by it hereunder. The making, execution, delivery and performance by
Parent of this Agreement and the consummation by Parent of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of Parent. This Agreement has been duly and validly
executed and delivered by Parent, and assuming the due authorization, execution
and delivery by Purchaser, this Agreement will constitute the valid, legal and
binding obligation of Parent, enforceable against it in accordance with its
terms, except as may be subject to applicable bankruptcy, insolvency, moratorium
or other similar Laws, now or hereafter in effect, relating to or affecting the
rights of creditors generally and by legal and equitable limitations on the
enforceability of specific remedies.
(c) Neither the execution and delivery of this Agreement by Parent,
nor the consummation of the transactions contemplated hereby, will (i) violate
or conflict with any provision of the articles of incorporation or bylaws or
other organizational documents of Parent or any International Parent
Distributor, (ii) violate any of the terms, conditions, or provisions of any Law
or license to which Parent or any International Parent Distributor is subject or
by which it or any International Parent Distributor or any of its or their
assets are bound, or (iii) violate, breach, or constitute a default under any
contract to which Parent or any International Parent Distributor is a party or
by which it or any International Parent Distributor or any of its or their
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assets is bound. The distribution of any Products offered by a Travelers Insurer
and distributed by an International Parent Distributor on the date of this
Agreement does not violate, breach, or constitute a default under any contract
to which Parent or any International Parent Distributor is a party or by which
any of them or any of their respective assets is bound.
(d) None of the arrangements by which any International Parent
Distributor distributes any Products on behalf of a Travelers Insurer in force
on the date of this Agreement violates any of the Parent Standards and Practices
in effect on such date.
Section 2.2. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Parent as set forth below.
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation.
(b) Purchaser has all necessary corporate power and authority to
make, execute and deliver this Agreement and to perform all of the obligations
to be performed by it hereunder. The making, execution, delivery and performance
by Purchaser of this Agreement and the consummation by Purchaser of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of Purchaser. This Agreement has been
duly and validly executed and delivered by Purchaser, and assuming the due
authorization, execution and delivery by Parent, this Agreement will constitute
the valid, legal and binding obligation of Purchaser, enforceable against it in
accordance with its terms, except as may be subject to applicable bankruptcy,
insolvency, moratorium or other similar Laws, now or hereafter in effect,
relating to or affecting the rights of creditors generally and by legal and
equitable limitations on the enforceability of specific remedies.
(c) Neither the execution and delivery of this Agreement by
Purchaser, nor the consummation of the transactions contemplated hereby, will
(i) violate or conflict with any provision of the articles of incorporation or
bylaws or other organizational documents of Purchaser or any Purchaser Insurer
(other than the Travelers Insurers), (ii) violate any of the terms, conditions,
or provisions of any Law or license to which Purchaser is subject or by which it
or any of its assets is bound, or (iii) violate, breach, or constitute a default
under any contract to which Purchaser is a party or by which it or any of its
assets is bound.
ARTICLE III.
INTERNATIONAL DISTRIBUTION
Section 3.1. Selling Agreements. In order to effectuate the distribution
arrangements contemplated hereby among the Travelers Insurers (and Purchaser
Insurers, as applicable) and the International Parent Distributors for
distribution of the Products and New Products offered by the Travelers Insurers
(and Purchaser Insurers, as applicable) in the Covered Countries and the
Supplemental Countries, Parent shall cause the International Parent
Distributors, and Purchaser shall cause the Travelers Insurers (and Purchaser
Insurers, as applicable), to negotiate in good faith and enter into written
selling agreements that are consistent with industry practice and with the
principles set forth in this Agreement and that contain terms and conditions
taken as a whole that are no less favorable to the Travelers Insurers (and
Purchaser Insurers, as applicable) and the
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International Parent Distributors than the terms and conditions of the selling
and selling related arrangements existing on the date of this Agreement between
the Travelers Insurers and the International Parent Distributors (the
"International Selling Agreements"). For each International Parent Distributor
that distributes a Product for a Travelers Insurer on the date of this
Agreement, an International Selling Agreement for the distribution of such
Product, to take effect on the date of this Agreement, shall be executed and
delivered by such International Parent Distributor and the applicable Travelers
Insurer on or prior to the date of this Agreement. The International Selling
Agreements will contain provisions concerning the periodic readjustment of
compensation as agreed by the parties thereto.
Section 3.2. Exclusive Distribution Arrangements.
(a) Parent represents and warrants that Schedule 3.2(a) sets forth a
complete and accurate list of all life insurance and annuity products issued by
a Travelers Insurer and distributed by an International Parent Distributor
(whether pursuant to a written agreement or de facto) in a Covered Country on
behalf of a Travelers Insurer on the date of this Agreement, the identity of
each International Parent Distributor that distributes each such product and
whether or not a Travelers Insurer is the exclusive provider (whether pursuant
to a written agreement or de facto) of such product to such International Parent
Distributor. For purposes of this Agreement (other than Section 3.7), life
insurance and/or annuity products shall be deemed to include any product listed
on Schedule 3.2(a).
(b) If any Travelers Insurer is the exclusive provider (whether
pursuant to a written agreement or de facto) of an Exclusive Product to any
International Exclusive Parent Distributor in a Covered Country on the date of
this Agreement, such Travelers Insurer shall have the right to be the exclusive
provider of such Exclusive Product to such International Exclusive Parent
Distributor in such Covered Country during the First Term. During the Second
Term, each Travelers Insurer shall have the right to be a provider, on a
non-exclusive, Level Playing Field basis, to each International Exclusive Parent
Distributor of each Exclusive Product distributed by such International
Exclusive Parent Distributor on the date of this Agreement. During the First
Term, Parent shall not make any change in the Parent Standards and Practices
(except changes that may be reasonably appropriate to comply with applicable
Law) that would conflict with the rights granted to the Travelers Insurers under
the first sentence of this Section 3.2(b).
(c) Notwithstanding anything herein to the contrary (including,
without limitation, Section 3.5(c)), prior to the earlier of (i) the end of the
60-day period beginning on the date of this Agreement and (ii) December 31,
2005, (x) Purchaser shall cause the Exclusive Products to be marketed under the
brand name and with such trademarks or trade names (including the identity of
the underwriter of such Exclusive Product) as used on the date of this Agreement
and (y) no Purchaser Insurer shall be permitted to provide a Substitute Product
in place of an Exclusive Product.
Section 3.3. Non-Exclusive Distribution Arrangements. If any Travelers
Insurer is a non-exclusive provider of a Product to any International Parent
Distributor in any Covered Country on the date of this Agreement (the
"Non-Exclusive Products"), such Travelers Insurer
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shall have the right to be a provider of such Product, on a non-exclusive, Level
Playing Field basis, to such International Parent Distributor in such country
during the Term.
Section 3.4. Private Label Products.
(a) If any Travelers Insurer is the provider of a Private Label
Product to an International Parent Distributor in any Covered Country on the
date of this Agreement, such Travelers Insurer shall have the right to be the
provider of such Private Label Product in such Covered Country during the Term.
(b) Subject to the last sentence of this Section 3.4(b), if, prior
to the seventh anniversary of the date of this Agreement, any International
Parent Distributor or any other Affiliate of Parent that distributes life
insurance or annuity products desires to distribute, as a Private Label Product
in any Covered Country or Supplemental Country, a life insurance product (other
than term life insurance) or annuity product that it does not distribute as a
Private Label Product in such country on the date of this Agreement, Parent
shall cause such International Parent Distributor or other Affiliate of Parent
(a "PLP Distributor") to notify Purchaser no later than the time of notification
of any Third Party Insurer. If the PLP Distributor does not select a Purchaser
Insurer as the provider of the new Private Label Product and the PLP Distributor
desires to continue to seek a Third Party Insurer, as provider, Parent shall
cause the PLP Distributor to include the Purchaser Insurers in the process for
selection of such provider (whether by formal request for proposals or
otherwise) to provide such Private Label Product prior to selecting a Third
Party Insurer. Parent shall cause the PLP Distributor to entertain in good
faith, and on terms no less favorable than those extended to any other proposed
provider, proposals from the Purchaser Insurers to provide such new Private
Label Product. Such PLP Distributor (i) shall have exclusive discretion in
determining the process for selection of, and the criteria for evaluation of,
potential providers of any such Private Label Product and (ii) shall make a good
faith determination of the relative suitability of proposals from potential
providers for satisfying the requirements of such Private Label Product (it
being understood that if such PLP Distributor determines that a proposal from a
Purchaser Insurer satisfies such requirements, considered as a whole, at least
as well as the most favorable proposal or proposals of the other potential
providers, such Purchaser Insurer's proposal shall be selected); provided,
however, that such PLP Distributor shall not be required to select any such
proposal. In the event a proposal from a Purchaser Insurer is selected by a PLP
Distributor, Parent shall cause such PLP Distributor, and Purchaser shall cause
such Purchaser Insurer, to negotiate in good faith an appropriate written
selling agreement with respect thereto upon terms and conditions to be mutually
agreed by the parties thereto. The rights granted to the Purchaser Insurers
under this Section 3.4(b) shall not apply with respect to any new Private Label
Product if an insurance company not Affiliated with Parent or Purchaser contacts
or approaches the International Parent Distributor, without solicitation by such
International Parent Distributor relating to such Private Label Product, about
developing or the possibility of developing such Private Label Product.
Notwithstanding the foregoing, but subject to Section 3.5, nothing in this
Section 3.4 shall be construed to limit such International Parent Distributor's
ability to offer Products substantially the same as any Private Label Product on
a non-private label basis.
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Section 3.5. New Products; New Countries; Substitute Products.
(a) At any time during the Term, (i) Purchaser may propose to an
International Parent Distributor that such International Parent Distributor or
one or more of its Affiliates distribute a New Product offered by a Purchaser
Insurer and (ii) an International Parent Distributor may propose to Purchaser
that such International Parent Distributor or one or more of its Affiliates
distribute a New Product offered by a Purchaser Insurer.
(b) Subject to Section 3.6(b), if, prior to the seventh anniversary
of the date of this Agreement, (i) any Purchaser Insurer that, as of the date of
this Agreement, offers a life insurance or annuity product for distribution in
any Supplemental Country desires to offer such product for distribution through
an Affiliate of Parent in such country, (ii) such Affiliate of Parent
distributes a life insurance or annuity product that is substantially the same
as such product through an open architecture distribution platform in such
country at the time and has multiple providers of such product and (iii) the
product proposed to be offered by the Purchaser Insurer is Competitive, then
such Purchaser Insurer shall have the right to provide such product to such
Affiliate of Parent in such country on a non-exclusive, Level Playing Field
basis for the remainder of such seven-year period. In such event, Parent shall
cause such Affiliate of Parent, and Purchaser shall cause such Purchaser
Insurer, to negotiate in good faith and enter into a written selling agreement
that is consistent with industry practice and with the principles set forth in
this Agreement.
(c) At any time during the Term, Purchaser may propose in writing
that any Purchaser Insurer offer, in place of any Product then offered by a
Travelers Insurer through an International Parent Distributor (an "Existing
Product") in a Covered Country or a Supplemental Country, a substitute product
and if (i) such Purchaser Insurer has Adequate Financial Strength and (ii) such
substitute product is substantially the same as the Existing Product in the
terms, total compensation, consumer pricing, wholesaler coverage, training and
support, features and service standards and metrics (a "Substitute Product"),
then Parent shall cause such International Parent Distributor to distribute such
Substitute Product in place of the Existing Product in such country. The
Purchaser Insurer that offers such Substitute Product shall have the same rights
under this Agreement with respect to the Substitute Product as the Travelers
Insurer that offered the Existing Product possessed with respect to the Existing
Product. By way of illustration and without limiting the generality of the
foregoing, if the Travelers Insurer was entitled to provide the Existing Product
on a non-exclusive, Level Playing Field basis through the International Parent
Distributor, the Purchaser Insurer shall be entitled to provide the Substitute
Product on a non-exclusive, Level Playing Field basis through such International
Parent Distributor in place of such Existing Product. Parent shall cause the
applicable International Parent Distributor and Purchaser shall cause the
Purchaser Insurer to enter into an International Selling Agreement with respect
to the Substitute Product that is substantially the same as the International
Selling Agreement with respect to the Existing Product. The Purchaser Insurer
providing the Substitute Product shall bear reasonable costs incurred by the
applicable International Parent Distributor in connection with or arising out of
the replacement of the Existing Product with the Substitute Product.
10
Section 3.6. Acquisitions.
(a) Notwithstanding anything in this Agreement to the contrary, but
subject to Section 3.6(b), neither Parent nor any International Parent
Distributor shall be (i) deemed to be in violation of this Agreement or any
International Selling Agreement or (ii) obligated hereunder or under any
International Selling Agreement to take any action (including to make any
adjustment to commissions, economic inducements or other benefits for the Sales
Force), if such violation would arise, or such action would be required to be
taken, solely as a result of Parent or one of its Affiliates acquiring assets or
a business of any Person engaged in the distribution of financial services
products following the date of this Agreement; provided, however, that nothing
in this Section 3.6(a) shall limit or restrict any obligations that Parent or
any International Parent Distributor has to distribute on an exclusive basis a
Product or a New Product offered by a Purchaser Insurer if such Purchaser
Insurer has the right under this Agreement or any International Selling
Agreement to be the exclusive provider of such Product or New Product to such
International Parent Distributor.
(b) If, at any time prior to the seventh anniversary of the date of
this Agreement, (i) Parent acquires a Target Business (as defined in the
Acquisition Agreement), of which the net revenues and net earnings (in each
case, calculated in a manner consistent with Section 6.17(a)(x) of the
Acquisition Agreement, and, for the avoidance of doubt, excluding realized
gains) derived from a Competitive Business (as defined in the Acquisition
Agreement) are more than a de minimis amount, and (ii) Parent or its Affiliates
are permitted to acquire such Target Business pursuant to Sections 6.17(a)(x) or
6.17(a)(xi) of the Acquisition Agreement, then Purchaser through the Purchaser
Insurers shall have the right during the remainder of such seven-year period to
be a provider to each Target Affiliated Distributor, if any, on a non-exclusive
Level Playing Field basis, of any life insurance or annuity product that is
distributed by such Target Affiliated Distributor on a non-exclusive basis
either immediately before or following such acquisition; provided, that such
right shall be subject to any applicable contractual or other restrictions by
which such Target Affiliated Distributor is bound.
Section 3.7. Reinsurance of Products Distributed on Behalf of Third Party
Insurers.
(a) During the Term, Parent shall, and shall cause each Reinsured
Product Distributor who, on the date of this Agreement, distributes life
insurance or annuity products on behalf of a Third Party Insurer ("Local
Incumbent") where all or part of such business written by such Local Incumbent
is reinsured by a Travelers Insurer (a "Reinsurer") to use its best efforts (x)
to require the relevant Local Incumbent (which term shall include, for purposes
of this Section 3.7, any successor or replacement Local Incumbent) to continue
to reinsure the Covered Business to the Reinsurer on terms no less favorable,
taken as a whole, to the Reinsurer than the terms on which such Covered Business
is reinsured on the date of this Agreement (net of any payments made or deemed
to be made by the Reinsurer to any Affiliate of Parent in respect of
coordination or other services rendered in connection herewith) and (y) if any
such Local Incumbent refuses to continue to reinsure such Covered Business in
accordance with clause (x) (a "Refusing Insurer"), to find a replacement
insurance company for such Refusing Insurer (which replacement insurer shall
have comparable financial strength to the Refusing Insurer (if relevant to the
product offered by the Refusing Insurer) and may be any insurance company
Affiliate of Purchaser, if one is available to issue the relevant types of
products issued by the
11
Refusing Insurer in the applicable country so long as such products are
substantially the same as the products issued by the Refusing Insurer) that will
agree to write such Covered Business and to reinsure it in accordance with
clause (x) and, once such a replacement is found, to exercise any rights it has
to terminate its distribution arrangement with the Refusing Insurer and to
replace the Refusing Insurer with such replacement insurance company; provided
that the Purchaser or Reinsurer shall be responsible for reasonable one time
expenses incurred by the Reinsured Product Distributor solely as a result of
such replacement; provided, further, that the Reinsured Product Distributor will
not incur any such expenses without obtaining Purchaser's or Reinsurer's prior
consent (which will not be unreasonably withheld or delayed); and provided,
further, that the obligations of the applicable Reinsured Product Distributor
under clauses (x) and (y) above shall be conditioned during the Second Term on
the Reinsurer having Adequate Financial Strength. Parent shall cause each
Reinsured Product Distributor not to change the terms of its relationship with
any Local Incumbent that would significantly and adversely affect the
profitability of the Covered Business reinsured by Reinsurer without obtaining
the prior written consent of Purchaser, which consent shall not be unreasonably
withheld or delayed. Nothing in this Section 3.7 shall be construed to limit the
ability of a Reinsured Product Distributor to terminate a selling agreement with
a relevant Insurer in accordance with its terms; provided that such termination
shall not relieve Parent of its obligations under this Agreement.
(b) Notwithstanding anything in Section 3.7(a) to the contrary, in
the event that Parent or a Reinsured Product Distributor determines that it is
advisable or desirable to modify or restructure the reinsurance arrangements
described in Section 3.7(a) in any country with respect to all or any part of
the Covered Business, including to eliminate the reinsurance arrangements and
effect the distribution of all or a portion of such Covered Business directly
from a Purchaser Insurer, then, as long as in the reasonable good faith judgment
of Purchaser or the applicable Reinsurer, there shall be no adverse impact on
the profitability of the Covered Business as a result of such modification or
restructuring or replacement for the remainder of the Term, Purchaser shall
cause the Reinsurer to reasonably cooperate with such modification or
restructuring to the extent necessary and the Reinsured Product Distributor may
take such actions as are necessary or appropriate to effect such modification or
restructuring; provided, that the Reinsured Product Distributor shall be
responsible for reasonable one time expenses incurred by the Reinsurer solely as
a result of Parent's or Reinsured Product Distributor's decision to modify or
restructure such arrangements; provided, further, that Reinsurer will not incur
any such expenses without obtaining Parent's or Reinsured Product Distributor's
prior consent (which will not be unreasonably withheld or delayed).
(c) At any time during the Term, Purchaser or a Reinsurer may
propose to a Reinsured Product Distributor that distributes a product included
within the Covered Business in any country, and Parent shall cause such
Reinsured Product Distributor to consider in good faith, that, in lieu of the
product being issued by the Local Incumbent, such Reinsured Product Distributor
distribute products being issued by a Purchaser Insurer licensed to conduct
business in such country; provided, that nothing contained in this Section
3.7(c) shall create any obligation on the part of a Reinsured Product
Distributor to distribute any product issued by a Purchaser Insurer.
(d) Notwithstanding anything in Section 3.7(a) to the contrary, the
parties hereto acknowledge that to the extent the performance by Citibank
Singapore Limited ("CSL")
12
satisfies its obligations under the letter agreement dated July 1, 2005 (the
"CSL Letter Agreement"), between CSL and Citicorp Life Insurance Limited, Parent
shall be in full satisfaction of the obligations of Parent under Section 3.7(a)
with respect to the CS Covered Business (as defined in the CSL Letter
Agreement).
(e) For purposes of Section 3.7(a), the Credit Shield Products (as
such term is defined in the CSL Letter Agreement), together with all products
distributed by a Reinsured Product Distributor, written by a Third Party Insurer
and reinsured through a Travelers Insurer as of the date of this Agreement, and
all products set forth on Schedule C of the Asia-Pacific Regional Reinsurance
Coordination Agreement, dated as of the date of this Agreement, between Citicorp
Life Insurance Limited and Citibank Singapore Limited (the "Asia-Pac RCA"),
shall be deemed to be life insurance and annuity products. The parties will
cooperate in good faith to develop a schedule of such products within 60 days of
the date hereof.
(f) The parties acknowledge that, subject to Section 5(c) of the
Asia-Pac RCA, any termination pursuant to Sections 5(a)(ii), (iii), (iv) or (v)
of the Asia-Pac RCA shall terminate the obligations of Parent pursuant to
Section 3.7(a) hereof to the same extent that the obligations of the Coordinator
(as defined in the Asia-Pac RCA) thereunder terminate.
Section 3.8. No Obligation. For the avoidance of doubt, nothing in this
Agreement or any International Selling Agreement shall (i) impose upon any
Purchaser Insurer any obligation to distribute any Products or New Products
offered by a Purchaser Insurer through the International Parent Distributors,
(ii) impose upon Parent or its Affiliates any obligation to provide to its or
their employees any Product or New Product issued by Purchaser or any Travelers
Insurers, (iii) restrict the ability of Purchaser or Parent or any of their
Affiliates from acquiring or disposing of any assets of, or reorganizing or
consolidating, any business, subject to the proviso in Section 3.6(a) or (iv)
restrict the ability of any Purchaser Insurer to distribute insurance or annuity
products through Persons other than Affiliates of Parent. Subject to Section
3.6(b), nothing in this Agreement shall impose upon any Affiliate of Parent that
becomes an Affiliate of Parent after the date of this Agreement any obligation
to distribute any Product or New Product on behalf of a Purchaser Insurer. For
the avoidance of doubt, in the event any International Parent Distributor ceases
to be an Affiliate of Parent, Parent's obligations under this Agreement with
respect to such International Parent Distributor shall no longer be applicable.
Section 3.9. Credicard.
(a) In the event Credicard Banco S.A. ("Credicard") (i) is
reorganized or restructured on or before December 31, 2008 in such a manner that
a surviving entity becomes an Affiliate of Citigroup and (ii) immediately prior
to such reorganization or restructuring, distributes a life insurance or annuity
product issued by a Purchaser Insurer in Brazil (a "Credicard Product"), then
Citigroup shall cause such surviving entity to negotiate in good faith with such
Purchaser Insurer and enter into an amendment to the Annex B (the "Brazil
Annex") to the Latin America Selling Agreement, which is an International
Selling Agreement hereunder, to include such entity as a Distributor thereunder
and to include such Credicard Product as a "Product" under the Latin America
Selling Agreement, provided that such amendment or the distribution of any such
Credicard Product will not conflict with any agreement or arrangement by which
Citigroup, Distributor or Credicard, any surviving entity or any of their
respective
13
Affiliates or any of their respective assets or properties may be bound
(including, without limitation, any agreements or arrangements among Credicard
and any of its shareholders or their affiliates).
(b) For purposes of any amendment to the Brazil Annex to the Latin
America Selling Agreement in respect of a Credicard Product, the determination
of (i) whether to classify such Credicard Product as an Exclusive Product, a
Non-Exclusive Product or a Private Label Product, (ii) the scope of access
rights as provided in Section 4.1 and (iii) compensation to be paid for sales of
such Credicard Product shall, in each case, be determined as of the date of such
amendment and not as of the date of this Agreement.
(c) In furtherance of the foregoing, Citigroup agrees that prior to
December 31, 2008, it and its Affiliates shall not take action to (i) finally
terminate the distribution agreements in effect on the date of this Agreement
between Credicard and a Travelers Insurer or (ii) amend any term of such
agreements or enter into any new agreement or arrangement, in either case, in a
manner that would significantly and adversely affect distribution arrangements
thereunder in respect of the Credicard Products.
Section 3.10. Corretora. In the event that Citibank Corretora de Seguros
S.A., which is the "International Parent Distributor" in Brazil as of the date
of this Agreement, ceases for any reason to distribute Products in Brazil during
the Term, then, to the extent that Banco Citibank S.A., directly or indirectly
through another distributor in Brazil Affiliated with Banco Citibank S.A., is
authorized to distribute and distributes any life insurance or annuity products
in Brazil, Parent shall cause Banco Citibank S.A. or such other distributor in
Brazil Affiliated with Banco Citibank S.A., to enter into an International
Selling Agreement to distribute the relevant Products in Brazil for the
remainder of the Term in accordance with the terms and subject to the conditions
set forth in this Agreement and the applicable International Selling Agreement.
ARTICLE IV.
ACCESS AND BRANDING
Section 4.1. Access.
(a) To the extent that as of the date of this Agreement, an
International Exclusive Parent Distributor permits wholesalers, Product
representatives or bank marketing representatives of the Travelers Insurers to
have access to such International Exclusive Parent Distributor, including its
Sales Force, bank branches, sales offices or sales, education or training
meetings that involve the promotion of Products made available by a Travelers
Insurer for distribution by such International Exclusive Parent Distributor in a
Covered Country, Parent shall, during the First Term, cause such International
Exclusive Parent Distributor to continue to permit such access on the same terms
and conditions as on the date of this Agreement in a manner consistent with
applicable Law and the Parent Standards and Practices. The applicable Purchaser
Insurer providing the Exclusive Products shall continue during the First Term to
maintain wholesaler coverage, training, and sales support to the International
Exclusive Parent Distributor on terms and conditions that are no less favorable
than those provided by the applicable Travelers Insurer to such International
Exclusive Parent Distributor on the date of this Agreement.
14
(b) To the extent that as of the date of this Agreement, an
International Parent Distributor (other than an International Exclusive Parent
Distributor) permits wholesalers, Product representatives or bank marketing
representatives of the Travelers Insurers to have access to such International
Parent Distributor in a Covered Country, including its Sales Force, bank
branches, sales offices or sales, education or training meetings that involve
the promotion of Products made available by a Travelers Insurer for distribution
by such International Parent Distributor, in a manner consistent with applicable
Law and with the Parent Standards and Practices, Parent shall, until the third
anniversary of the date of this Agreement, cause such International Parent
Distributor to provide such access on terms and conditions that are no less
favorable than those generally applicable to any Third Party Insurer.
Section 4.2. Branding; Use of Names; Confidential Information; Approval of
Certain Materials.
(a) Unless otherwise provided in an International Selling Agreement
and, in all cases in accordance with the terms and subject to the conditions of
the Licensing Agreement, during the Term, Purchaser shall cause all Purchaser
Insurers providing, and Parent shall cause all International Parent Distributors
distributing, Products (including Private Label Products in respect of which any
Purchaser Insurer is the provider on the date of this Agreement) to cause such
Products distributed through an International Parent Distributor to be offered
and branded utilizing the Marks that relate to each such Product as of the date
of this Agreement; provided that Purchaser and the Purchaser Insurers shall have
been granted adequate rights to use the Marks under the Licensing Agreement; and
provided, further, that the parties hereto agree that any trademark or trade
name on such product shall be appropriately altered to reflect any change to the
trademark or trade name of the applicable International Parent Distributor and,
subject to Section 3.2(c), in the case of a Substitute Product, to reflect any
change that is required by Law as a result of the change in the issuer of such
Substitute Product. To the extent that a Private Label Product is distributed by
a PLP Distributor on behalf of a Purchaser Insurer after the date of this
Agreement in accordance with Section 3.4, then Parent shall cause such PLP
Distributor and Purchaser shall cause all Purchaser Insurers providing such
Private Label Product to cause such Private Label Product to be offered and
branded using such trademarks or trade names as may be applicable to such
Private Label Product by such PLP Distributor, provided that Purchaser and the
applicable Purchaser Insurers shall own or shall have been granted adequate
rights to use such trademarks or trade names.
(b) During the Term of this Agreement, the Travelers Insurers and,
as applicable, the Purchaser Insurers will have access to confidential
information and other proprietary information ("Confidential Information") of
Parent and its Affiliates. Confidential Information includes, but is not limited
to, the names, addresses, telephone numbers and social security numbers of
applicants for, purchasers of and other customers of Products and New Products
as well as other identity and private information in respect of Parent's or its
Affiliates' customers, employees, representatives and agents. Confidential
Information shall not include any customer information (i) that was previously
known by a Purchaser Insurer from a source other than any International Parent
Distributor without obligations of confidence; or (ii) that was or is rightfully
received by a Purchaser Insurer from a third party without obligations of
confidence to any International Parent Distributor or from publicly available
sources without obligations of confidence to any International Parent
Distributor; or (iii) that was or is developed
15
by means independent of information obtained from any International Parent
Distributor. As a condition to such access, neither Purchaser nor any Purchaser
Insurer shall use, copy or disclose such Confidential Information in any manner
(including, without limitation, to sell or cross-sell their products).
Confidential Information may be used to service Products and New Products,
including, as appropriate, to accept additional contributions and premium for
and to modify, add, or exchange coverage to any Product or New Product purchased
by a policy owner who purchased from an International Parent Distributor.
Purchaser and its Affiliates shall take all appropriate action to ensure the
protection, confidentiality and security of such Confidential Information. The
Purchaser and its Affiliates acknowledge and agree that this Confidential
Information is the property of the International Parent Distributors. The
parties also understand that the Purchaser Insurers may respond to inquiries
from holders of Products or New Products concerning other Purchaser Insurer
products and services provided there was no solicitation of such inquiry using
Confidential Information. The parties also agree that this Section 4.2(b) shall
not apply to individuals with whom Purchaser or the Purchaser Insurers have a
pre-existing relationship other than through an International Parent
Distributor.
(c) (i) Any marketing, training or other materials to be made
available by any Purchaser Insurer to any International Parent Distributor's
Sales Force or customers in connection with Products and New Products (other
than ordinary course communications to policyholders and contract holders) shall
be made available only with the prior consent (which shall not be unreasonably
withheld or delayed) of the applicable International Parent Distributor;
provided that all such materials that are used by the Travelers Insurers in
connection with the distribution of Products through the International Parent
Distributors on the date of this Agreement shall not require any such consent.
In the event that the applicable Purchaser Insurer or the applicable
International Parent Distributor determines to discontinue the use of any such
materials, the parties shall cooperate with the applicable Purchaser Insurer to
ensure that such use is discontinued by such International Parent Distributor's
Sales Force.
(ii) Any marketing, training or other materials prepared by an
International Parent Distributor and to be made available by such
International Parent Distributor to its Sales Force or customers that
describes any Purchaser Insurer or any of its Affiliates or any insurance
or annuity product offered by any of them may be made available only with
the prior consent (which shall not be unreasonably withheld or delayed) of
the applicable Purchaser Insurer; provided that all such materials that
are used by the International Parent Distributors in connection with the
distribution of Products on the date of this Agreement shall not require
any such consent. In the event that the applicable Purchaser Insurer or
the applicable International Parent Distributor determines to discontinue
the use of any such materials, the parties shall cooperate with the
applicable International Parent Distributor to ensure that such use is
discontinued by its Sales Force.
ARTICLE V.
TERM OF THE AGREEMENT; CERTAIN CONDITIONS
Section 5.1. Term. The term of this Agreement (the "Term") will commence
on the date of this Agreement and shall continue until the tenth anniversary of
the date of this
16
Agreement; provided, however, the expiration of this Agreement shall not reduce
or curtail the term of any International Selling Agreement that extends beyond
the end of the Term.
Section 5.2. Survival. Upon expiration of this Agreement, the provisions
of Article I, Section 4.2(b), this Section 5.2, Article VI and Article VII shall
survive without modification.
Section 5.3. Certain Conditions.
(a) Subject to Section 5.3(b), but notwithstanding anything else to
the contrary in this Agreement or in any International Selling Agreement, no
International Parent Distributor shall be required to enter into (and may refuse
to enter into) an International Selling Agreement in respect of, or have any
obligation to offer (and may immediately cease to offer), any Product or New
Product offered by a Purchaser Insurer, if:
(i) Parent reasonably determines that such Product or New
Product offered by a Purchaser Insurer is not Competitive;
(ii) any change is made or any feature is added to such
Product or New Product (or a fund or investment option therein) without
Parent's or the applicable International Parent Distributor's prior
written approval, which approval shall not be unreasonably withheld or
delayed;
(iii) such Product or New Product or the offering thereof
(including on an exclusive basis) conflicts with:
(x) applicable Law, including any regulatory compliance
procedures or restrictions in connection therewith;
(y) any material provision of any existing agreement by
which Parent or its Affiliates or any of their respective assets or
properties are bound; provided that this clause (y) shall not apply
to any Product offered by a Travelers Insurer and distributed by an
International Parent Distributor pursuant to an arrangement in
effect on the date of this Agreement or any Substitute Products
distributed in replacement thereof pursuant to Section 3.5(c),
unless the violation is caused by or relates to (1) any difference
between the Substitute Product and the Existing Product it replaced,
or (2) solely the fact of the replacement of the Existing Product
with the Substitute Product; or
(z) the Parent Standards and Practices, provided that in
the case of the application of this clause (z) during the First Term
to any Exclusive Product following a change in the Parent Standards
and Practices, any such change in the Parent Standards and Practices
shall be in accordance with the third sentence of Section 3.2(b);
(iv) such Product is an Exclusive Product and (x) any
Purchaser Insurer provides to any Comparable Distributor a product that is
substantially similar to such Exclusive Product and (y) the terms, total
compensation, consumer pricing, wholesaler coverage, training and support,
features and service standards and metrics of such
17
product, taken as a whole, are more favorable than the terms, total
compensation, consumer pricing, wholesaler coverage, training and support,
features and service standards and metrics of such Exclusive Product,
taken as a whole; provided, however, that this Section 5.3(a)(iv) shall
not apply to any distribution arrangements of any Purchaser Insurer in
effect on the date of this Agreement; or
(v) with respect to any Exclusive Product, a federal, state or
local domestic, foreign or supranational governmental, regulatory or
self-regulatory authority, agency, court, tribunal, commission or other
governmental, regulatory or self-regulatory entity, with jurisdiction over
the International Exclusive Parent Distributor requests or mandates that
the International Exclusive Parent Distributor cease offering or no longer
offer the Exclusive Product on an exclusive basis; provided, however, in
the case of such a request (but not a mandate), the International
Exclusive Parent Distributor shall provide prompt notice of any such
request to the Purchaser Insurer providing the Exclusive Product, and
shall consult and cooperate with such Purchaser Insurer in its efforts to
obtain from such regulatory agency an agreement that permits the
International Exclusive Parent Distributor to continue to distribute such
Exclusive Product on an exclusive basis. If such an agreement is reached,
the International Exclusive Parent Distributor shall continue to
distribute the Exclusive Product on an exclusive basis in accordance with
the terms of Section 3.2. If such an agreement cannot be reached, the
International Exclusive Parent Distributor shall distribute the Exclusive
Product on a non-exclusive, Level Playing Field basis, for the remainder
of the Term in accordance with the terms of this Agreement.
(b) Prior to any International Parent Distributor's exercising its
right under Section 5.3(a) not to enter into an International Selling Agreement
with respect to any Product or New Product or to cease offering any Product or
New Product, such International Parent Distributor shall provide written notice
to Purchaser, containing a reasonably detailed statement of the grounds for such
exercise, and shall afford Purchaser a period of 30 days in which to cure the
deficiency unless the deficiency is not capable of being cured. Such
International Parent Distributor shall consult and cooperate with Purchaser as
reasonably requested during such period in identifying possible cures. If
Purchaser is able to propose a cure that is reasonably satisfactory to such
International Parent Distributor before the expiration of such period, such
International Parent Distributor shall not be entitled to exercise its right to
refuse to enter into an International Selling Agreement or to cease offering the
applicable Product or New Product, provided that if any cure involves a change
in such Product's or New Product's terms or features that requires filing with
or approval (or non-disapproval) by any regulatory authority, such International
Parent Distributor shall, prior to exercising such right, afford Purchaser such
further period of time as may be reasonably necessary to accomplish such filing
or obtain such approval or non-disapproval. Notwithstanding anything to the
contrary in this Section 5.3(b), no International Parent Distributor shall be
required to continue to distribute any Product or New Product pending any cure
period, if the offering of such Product or New Product would reasonably be
expected to (i) violate applicable Law, including any regulatory compliance
procedures or restriction in connection therewith, (ii) conflict with the Parent
Standards and Practices insofar as they relate to reputational considerations or
industry standards in the applicable country or (iii) in the case of an
Exclusive Product under Section 5.3(a)(v) above, conflict with a mandate from a
federal, state or local domestic, foreign or supranational
18
governmental, regulatory or self-regulatory authority, agency, court, tribunal,
commission or other governmental, regulatory or self-regulatory entity, with
jurisdiction over the International Exclusive Parent Distributor that such
International Exclusive Parent Distributor cease offering or no longer offer the
Exclusive Product on an exclusive basis; provided, in the case of this clause
(iii), such International Exclusive Parent Distributor shall distribute the
Exclusive Product on a non-exclusive, Level Playing Field basis, for the
remainder of the Term in accordance with the terms of this Agreement.
ARTICLE VI.
INDEMNIFICATION
Section 6.1. Indemnification of Parent. Purchaser will defend and hold
harmless Parent and its Affiliates and their respective officers, directors,
employees and agents (the "Parent Indemnified Parties") from and against any
losses, liabilities, damages (including consequential damages), actions, claims,
demands, regulatory investigations, settlements, judgments and other expenses
including, but not limited to, reasonable attorneys fees and expenses ("Losses")
which are asserted against, incurred or suffered by any Parent Indemnified Party
and which arise from or are related to Purchaser's breach of any representation
or warranty (except to the extent indemnification therefor is available under
the Acquisition Agreement) or any covenant, condition or duty contained in this
Agreement.
Section 6.2. Indemnification of Purchaser. Parent will defend and hold
harmless Purchaser and its Affiliates and their respective officers, directors,
employees and agents (the "Purchaser Indemnified Parties") from and against any
Losses which are asserted against, incurred or suffered by any Purchaser
Indemnified Party and which arise from or are related to Parent's breach of any
representation or warranty (except to the extent indemnification therefor is
available under the Acquisition Agreement) or any covenant, condition or duty
contained in this Agreement.
Section 6.3. Indemnity Provisions in International Selling Agreements.
Each International Selling Agreement shall provide indemnification for Losses
asserted against each of the parties thereto in respect of a failure of the
other party to comply with applicable Law and a breach by such other party of
any representation, warranty, covenant, condition or duty contained in such
International Selling Agreement.
Section 6.4. Indemnification Procedures. Upon receipt by a Parent
Indemnified Party or a Purchaser Indemnified Party (each, an "Indemnified
Party"), as the case may be, of notice of any action, suit, proceedings, claim,
demand or assessment made or brought by an unaffiliated third party (a "Third
Party Claim") with respect to a matter for which such Indemnified Party is
indemnified under this Article VI which has or is expected to give rise to a
claim for Losses, the Indemnified Party shall promptly, in the case of a
Purchaser Indemnified Party, notify Parent and in the case of a Parent
Indemnified Party, notify Purchaser (Purchaser or Parent, as the case may be,
the "Indemnifying Party"), in writing, indicating the nature of such Third Party
Claim and the basis therefor; provided, however, that any delay or failure by
the Indemnified Party to give notice to the Indemnifying Party shall relieve the
Indemnifying Party of its obligations hereunder only to the extent, if at all,
that it is prejudiced by reason of such delay or failure. Such written notice
shall (i) describe such Third Party Claim in reasonable detail as is practicable
including
19
the sections of this Agreement, which form the basis for such claim; provided
that the failure to identify a particular section in such notice shall not
preclude the Indemnified Party from subsequently identifying such section as a
basis for such claim, (ii) attach copies of all material written evidence
thereof and (iii) set forth the estimated amount of the Losses that have been or
may be sustained by an Indemnified Party. The Indemnifying Party shall have 30
days after receipt of notice to elect, at its option, to assume and control the
defense of, at its own expense and by its own counsel, any such Third Party
Claim and shall be entitled to assert any and all defenses available to the
Indemnified Party to the fullest extent permitted by applicable Law. If the
Indemnifying Party shall undertake to compromise or defend any such Third Party
Claim, it shall promptly notify the Indemnified Party of its intention to do so,
and the Indemnified Party agrees to cooperate fully with the Indemnifying Party
and its counsel in the compromise of, or defense against, any such Third Party
Claim; provided, however, that the Indemnifying Party shall not settle,
compromise or discharge, or admit any liability with respect to, any such Third
Party Claim without the prior written consent of the Indemnified Party (which
consent will not be unreasonably withheld or delayed), unless the relief
consists solely of money Losses to be paid by the Indemnifying Party and
includes a provision whereby the plaintiff or claimant in the matter releases
the Purchaser Indemnified Parties or the Parent Indemnified Parties, as
applicable, from all liability with respect thereto. Notwithstanding an election
to assume the defense of such action or proceeding, the Indemnified Party shall
have the right to employ separate counsel and to participate in the defense of
such action or proceeding, and the Indemnifying Party shall bear the reasonable
fees, costs and expenses of such separate counsel if the (A) Indemnified Party
shall have determined in good faith that an actual or potential conflict of
interest makes representation by the same counsel or the counsel selected by the
Indemnifying Party inappropriate or (B) Indemnifying Party shall have authorized
the Indemnified Party to employ separate counsel at the Indemnifying Party's
expense. In any event, the Indemnified Party and Indemnifying Party and their
counsel shall cooperate in the defense of any Third Party Claim subject to this
Article VI and keep such Persons informed of all developments relating to any
such Third Party Claims, and provide copies of all relevant correspondence and
documentation relating thereto. All costs and expenses incurred in connection
with the Indemnified Party's cooperation shall be borne by the Indemnifying
Party. In any event, the Indemnified Party shall have the right at its own
expense to participate in the defense of such asserted liability. If the
Indemnifying Party receiving such notice of a Third Party Claim does not elect
to defend such Third Party Claim or does not defend such Third Party Claim in
good faith, the Indemnified Party shall have the right, in addition to any other
right or remedy it may have hereunder, at the Indemnifying Party's expense, to
defend such Third Party Claim; provided, however, that the Indemnified Party
shall not settle, compromise or discharge, or admit any liability with respect
to, any such Third Party Claim without the written consent of the Indemnifying
Party (which consent will not be unreasonably withheld or delayed).
Section 6.5. General.
(a) The provisions of this Article VI will survive the expiration of
this Agreement.
(b) The rights and remedies provided herein shall be cumulative and
in addition to all other rights and remedies available to the parties at law or
equity, and the exercise or beginning of the exercise of any thereof by any
party shall not preclude the simultaneous or
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later exercise of any other such rights or remedies by such party.
Notwithstanding the preceding sentence, nothing in this Agreement shall restrict
or prevent any party from seeking indemnification under any applicable provision
of the Acquisition Agreement, or any of the other Related Agreements (as defined
in the Acquisition Agreement), provided that no party shall obtain duplicative
recoveries.
ARTICLE VII.
MISCELLANEOUS
Section 7.1. Equitable Remedies. The parties hereto acknowledge that money
damages may not be an adequate remedy for violations of this Agreement and that
any party, in addition to any other rights and remedies which the parties may
have hereunder or at law or in equity, may, in its sole discretion, apply to a
court of competent jurisdiction for specific performance or injunction or such
other relief as such court may deem just and proper in order to enforce this
Agreement or prevent any violation hereof and, to the extent permitted by
applicable Law, each party waives any objection to the imposition of such
relief.
Section 7.2. Severability. If any provision of this Agreement or the
application of any such provision is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable Law,
the parties waive any provision of Law that renders any provision of this
Agreement invalid, illegal or unenforceable in any respect. The parties shall,
to the extent lawful and practicable, use their commercially reasonable efforts
to enter into arrangements to reinstate the intended benefits, net of the
intended burdens, of any such provision held invalid, illegal or unenforceable.
Section 7.3. Further Assurance and Assistance. Parent and Purchaser agree
that each will, and will cause their respective Affiliates to, execute and
deliver any and all documents, and take such further acts, in addition to those
expressly provided for herein, that may be necessary or appropriate to
effectuate the provisions of this Agreement.
Section 7.4. Notices. All notices, demands and other communications
required or permitted to be given to any party under this Agreement shall be in
writing and any such notice, demand or other communication shall be deemed to
have been duly given when delivered by hand, courier or overnight delivery
service or, if mailed, two (2) Business Days (as defined in the Acquisition
Agreement) after deposit in the mail and sent certified or registered mail,
return receipt requested and with first-class postage prepaid, or in the case of
facsimile notice, when sent and transmission is confirmed, and, regardless of
method, addressed to the party at its address or facsimile number set forth
below (or at such other address or facsimile number as the party shall furnish
the other parties in accordance with this Section 7.4):
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(a) If to Parent:
Citigroup Inc.
399 Park Avenue
New York, New York 10043
Attn: Andrew M. Felner
Deputy General Counsel
Facsimile: (212) 559-7057
e-mail: felnera@citigroup.com
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036-6522
Attn: Eric J. Friedman, Esq.
Facsimile: (212) 735-2000
(b) If to Purchaser:
MetLife, Inc.
2701 Queens Plaza North
Long Island City, New York 11101
Attn: James L. Lipscomb
Executive Vice President and General Counsel
Facsimile: (212) 252-7288
With a copy to:
LeBoeuf, Lamb, Greene & MacRae L.L.P.
125 West 55th Street
New York, New York 10019
Attn: Alexander M. Dye, Esq.
Facsimile: 212-424-8500
Section 7.5. Successors and Assigns. Subject to the terms of this Section
7.5, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, provided that the
Parent Indemnified Parties and the Purchaser Indemnified Parties shall be
intended third-party beneficiaries of Article VI. No party hereto may assign its
rights or obligations under this Agreement without the prior written consent of
the other party (which consent may not be unreasonably withheld) and any
purported assignment without such consent shall be void.
Section 7.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of New York applicable to
agreements made and to be performed entirely within such State, without regard
to the conflict of laws principles of such State.
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Section 7.7. Jurisdiction; Venue; Consent to Service of Process.
(a) Each of the parties hereto irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the United States District Court
for the Southern District of New York or, if such court will not accept
jurisdiction, the Supreme Court of the State of New York or any court of
competent civil jurisdiction sitting in New York County, New York. In any
action, suit or other proceeding, each of the parties hereto irrevocably and
unconditionally waives and agrees not to assert by way of motion, as a defense
or otherwise any claims that it is not subject to the jurisdiction of the above
courts, that such action or suit is brought in an inconvenient forum or that the
venue of such action, suit or other proceeding is improper. Each of the parties
hereto also hereby agrees that any final and unappealable judgment against a
party hereto in connection with any action, suit or other proceeding shall be
conclusive and binding on such party and that such award or judgment may be
enforced in any court of competent jurisdiction, either within or outside of the
United States. A certified or exemplified copy of such award or judgment shall
be conclusive evidence of the fact and amount of such award or judgment.
(b) Each party irrevocably consents to service of process in the
manner provided for the giving of notices pursuant to Section 7.4 of this
Agreement. Nothing in this Section 7.7 shall affect the right of any party
hereto to serve process in any other manner permitted by Law.
Section 7.8. Entire Agreement. This Agreement, together with all schedules
hereto, embodies the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements with respect thereto. The
parties intend that this Agreement shall constitute the complete and exclusive
statement of its terms and that no extrinsic evidence whatsoever may be
introduced in any judicial proceeding involving this Agreement.
Section 7.9. Amendment and Waiver. No amendment to this Agreement shall be
effective unless it shall be in writing and signed by each party. Any failure of
a party to comply with any obligation, covenant, agreement or condition
contained in this Agreement may be waived by the party entitled to the benefits
thereof only by a written instrument duly executed and delivered by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure of compliance. In the event that the terms of an International Selling
Agreement shall conflict with the terms of this Agreement, the terms of such
International Selling Agreement shall control for purposes of such International
Selling Agreement.
Section 7.10. Access to Records. Parent shall cause the International
Parent Distributors to maintain adequate books and records related to the
activities of the International Parent Distributors under the International
Selling Agreements with respect to the Products and New Products distributed
thereunder. Upon written request, but no more frequently than annually, (i)
Parent shall certify to Purchaser its material compliance with the terms of
Sections 3.2(b), 3.3 and 3.4(a) of this Agreement during the period covered by
such certificate and (ii) Purchaser shall certify to Parent that no Purchaser
Insurer has, during the period covered by such certification, provided to any
Comparable Distributor any product that is substantially similar to
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an Exclusive Product provided by a Travelers Insurer on an exclusive basis to an
International Exclusive Parent Distributor under an International Selling
Agreement with terms, total compensation, consumer pricing, wholesaler coverage,
training and support, features and service standards and metrics, taken as a
whole, that are materially more favorable to such Comparable Distributor than
the terms, total compensation, consumer pricing, wholesaler coverage, training
and support, features and service standards and metrics of such Exclusive
Product, taken as a whole.
Section 7.11. Counterparts. This Agreement may be executed by the parties
in multiple counterparts which may be delivered by facsimile transmission. Each
counterpart when so executed and delivered shall be deemed an original, and all
such counterparts taken together shall constitute one and the same instrument.
Section 7.12. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF THE PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective authorized representatives.
CITIGROUP INC.
By: /s/ Anthony A. Lazzara
---------------------------------------
Name: Anthony A. Lazzara
Title: Managing Director
M&A Execution
METLIFE, INC.
By: /s/ William J. Wheeler
---------------------------------------
Name: William J. Wheeler
Title: Executive Vice President and
Chief Financial Officer
[SIGNATURE PAGE TO INTERNATIONAL DISTRIBUTION AGREEMENT]
SCHEDULE 3.2(a)