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EXHIBIT 10.5
SANTUSA HOLDING, S.L.
December 22, 2000
MetLife, Inc.
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Transferee Standstill Agreement
Ladies and Gentlemen:
Pursuant to a Stock Purchase Agreement, dated April 3, 2000 (the
"Stock Purchase Agreement"), among MetLife, Inc., a Delaware corporation (the
"Company"), Metropolitan Life Insurance Company, a life insurance company
organized under the laws of New York ("MetLife"), and Banco Santander Central
Hispano, S.A. (the "Purchaser"), the Company sold to Purchaser the Shares (as
defined in the Stock Purchase Agreement) to be registered in the Purchaser's
name. The Purchaser has transferred the Purchaser's Shares as of the date hereof
to its permitted assignee, Santusa Holding, S.L., (together with all of its
current and future affiliates, the "Transferee"). For purposes of this
Agreement, "affiliate" shall mean a person or entity that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, another person or entity.
Transferee and the Company are entering into this Agreement to
define the future relationship between Transferee and the Company and in
consideration of the mutual covenants contained herein.
1. Restrictions on Transfers; Registration Rights.
(a) Restrictions on Transfers. Transferee agrees that, prior to the
first anniversary of the Closing (as defined in the Stock Purchase Agreement),
it will not, directly or indirectly, sell, transfer or otherwise dispose of any
interest in the Shares, provided that Transferee may transfer Shares (i) to any
affiliate (as defined in Rule 144 of the Securities Act of 1933, as amended (the
"Securities Act")) of Transferee that enters into a standstill agreement with
the Company containing terms and conditions substantially equivalent to those in
this Agreement, or (ii) pursuant to any tender offer or exchange offer which is
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recommended by the Board of Directors of the Company. After the first
anniversary of the Closing and for the remaining term of this Agreement,
Transferee may sell, transfer or otherwise dispose of any interest in the
Shares, provided that (x) such sale, unless it is made in a registered public
offering or pursuant to a tender or exchange offer to the Company's
stockholders, is not knowingly made to any person or "group" (within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"1934 Act")) acquiring all of Transferee's Shares in the acquisition or that
would, after giving effect to its acquisition of such Shares, beneficially own
or have the right to acquire more than 4.9% of the Voting Securities (as defined
below) then outstanding, unless such person or group has entered into a
standstill agreement with the Company containing terms and conditions
substantially equivalent to those in this Agreement (it being understood that
Transferee has no duty to inquire as to the beneficial ownership of any such
person or group when Transferee sells the Shares in a transaction on the New
York Stock Exchange or any other exchange on which the Shares are listed at the
time), and (y) (i) such sale is pursuant to an effective registration statement
under the Securities Act, (ii) such sale is made after the termination of sale
restrictions pursuant to Rule 144 of the Securities Act or any successor to such
rule or (iii) Transferee shall have delivered to the Company an opinion of
counsel, which opinion and counsel shall be reasonably satisfactory to the
Company, to the effect that such sale is exempt from the provisions of Section 5
of the Securities Act.
For purposes of this Agreement, the term "Voting Securities" shall
mean securities of the Company, including the Shares, with the power to vote
with respect to the election of directors generally, including any securities
that are convertible or exchangeable for Voting Securities, it being understood
that the number of Voting Securities outstanding as of any time of determination
shall be determined as though all such securities, whether or not in the money,
had been converted or exchanged, in accordance with their terms, into or for
Voting Securities immediately prior to the time of determination.
(b) Registration Rights.
(i) Required Registration. (A) At any time after the first
anniversary of the Closing, Transferee shall have the right, by written notice
(the "Registration Notice") to the Company, to require the Company to use
reasonable efforts to register (the "Required Registration") under the
Securities Act all or any portion of the Shares then owned by Transferee (the
"Registrable Securities"), and the Company shall be obligated to register such
Registrable Securities. Transferee shall not be entitled to exercise more than
one such right in any 12 month period or more than a total of five such rights
during the term of this Agreement. Notwithstanding the foregoing, if, in
addition to the Registrable Securities, the Required Registration is to include
shares to be offered by the Company for its own account, shares of Trust
Beneficiaries (as defined in the Plan of Reorganization, dated September 28,
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1999, as amended, of MetLife (the "Plan")) having registration rights pursuant
to Section 3.3(c)(v) of the Plan or shares of others persons with registration
rights, and the Board of Directors of the Company believes, based on advice of a
nationally recognized investment banking firm selected by the Company, that
including all such shares would be likely to have an adverse effect upon the
price, timing or distribution of the shares included in the Required
Registration, then only such number of shares, if any, as the Board shall
determine can be included without adversely affecting the offering shall be
included in the Required Registration, and the shares to be included in the
Required Registration will be allocated in the following priority: (w) all
shares owned by such Trust Beneficiaries shall be included first, (x) all shares
of Transferee, Credit Suisse First Boston and Winterthur Life (together with all
of their current and future affiliates, the "Other Private Placement
Purchasers") shall be included second, in proportion, as nearly as practicable,
to the total number of shares of Common Stock proposed to be offered by each of
the Transferee and the Other Private Placement Purchasers at the time of filing
of the registration statement for the registration, (y) all shares of Common
Stock of any other persons with registration rights shall be included third, in
proportion, as nearly as practicable, to the total number of shares of Common
Stock proposed to be offered by each of them at the time of the filing of the
registration statement, and (z) all shares of the Company shall be included
last. Transferee may elect that the offering of Registrable Securities pursuant
to this Section 1(b)(i) be in the form of an underwritten public offering, in
which case Transferee shall select the managing underwriters and any additional
investment bankers and managers to be used in connection with the offering,
provided that such managing underwriters and additional investment bankers and
managers must be reasonably satisfactory to the Company. In the event Transferee
is not able to include all of the Shares Transferee wishes to include in any
Required Registration due to the limitation described in the immediately
preceding sentence, Transferee shall have the right to one additional Required
Registration with respect to such Shares subject to the limitations set forth in
this Section 1(b)(i).
(B) Upon receipt of such Registration Notice, the Company will, as
promptly as practicable, prepare and file with the Securities and Exchange
Commission (the "SEC") and use its reasonable efforts to cause to become
effective promptly, and in any event within 90 days from its receipt of the
Registration Notice, a registration statement under the Securities Act with
respect to the number of Registrable Securities specified in the Registration
Notice, and will use its reasonable efforts to cause such registration statement
to remain effective for such period of time as shall be required to complete the
distribution of Registrable Securities contemplated thereby, but not for more
than 120 days from the effective date thereof, provided that the Company shall
be entitled to defer any such filing for a period of up to 180 days from the
date of Transferee's Registration Notice if the Company shall furnish Transferee
a certificate signed by its Chairman, President and Chief Executive Officer,
Chief Financial Officer or Vice-Chairman stating that the filing of a
registration
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statement at such time would be detrimental to the Company due to the pendency
of a material acquisition or financing or for other reasonable cause.
(C) The Company will use its reasonable efforts to cause to be filed
as soon as practicable following the first anniversary of the Closing, and in
any event within 90 days thereafter, a shelf registration statement on Form S-3
(or any successor form) providing for the sale by Transferee of all of the
Registrable Securities and to have such shelf registration statement declared
effective by the SEC. The Company will use its reasonable efforts to keep the
shelf registration statement continuously effective until the third anniversary
of the Closing or such shorter period that will terminate when all of the
Registrable Securities covered by the shelf registration statement have been
sold pursuant to the shelf registration statement. After the shelf registration
statement has been declared effective, Transferee will have the right to
request, subject to paragraph (A), an unlimited number of sales pursuant to
prospectuses or prospectus supplements under such shelf registration statement
(such requests will be in writing and given at least ten business days prior to
the proposed disposition and will state the number of shares of Registrable
Securities to be disposed of and the intended method of disposition of such
shares by Transferee), provided, however, that the Company shall be entitled to
defer any such sale for a period of up to 180 days from the date of the
Transferee's written request therefor if the Company shall furnish Transferee a
certificate signed by its Chairman, President and Chief Executive Officer, Chief
Financial Officer or Vice-Chairman stating that an offering at such time would
be detrimental to the Company due to the pendency of a material acquisition or
financing or for other reasonable cause, and provided further that the Company
will not be required to permit sales pursuant to this paragraph (a) more than
twice in each calendar year and (b) unless Transferee proposes to dispose of
outstanding Registrable Securities whose anticipated aggregate offering price
exceeds $50,000,000. Notwithstanding anything to the contrary herein, an
underwritten public offering by Transferee under such Form S-3 shall be deemed
to be a Required Registration and subject to the limitations set forth in
paragraph (A) on the number of such Required Registrations per year and in
total. Upon receipt of Transferee's written request specified above, the Company
will use its reasonable efforts to prepare and file with the SEC, prior to the
date that the offering by Transferee was proposed to be commenced, a supplement
or post-effective amendment to the shelf registration statement or the related
prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such prospectus does not contain any untrue statement of
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(D) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to
Transferee and each underwriter, if any, of the Registrable Securities covered
by such registration statement
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copies of such registration statement as proposed to be filed, and thereafter
furnish to Transferee and underwriter, if any, such number of copies of such
registration statement, each amendment or supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein),
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as Transferee or underwriter
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by Transferee.
(E) After the filing of the registration statement, the Company will
promptly notify Transferee of any stop order issued or threatened by the
Commission and take all reasonable actions required to prevent the entry of such
stop order or to remove it if entered.
(F) The Company will use its reasonable efforts to register or
qualify the Registrable Securities under such other securities or blue sky laws
of such jurisdictions in the United States as any selling purchaser reasonably
(in light of such purchaser's intended plan of distribution) requests and cause
such Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and things
reasonably requested by Transferee to enable Transferee to consummate the
disposition of the Registrable Securities owned by Transferee, provided that the
Company will not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 1(b)(i)(F), subject itself to taxation in any such jurisdiction or
consent to general service of process in any such jurisdiction.
(G) The Company will promptly notify Transferee, at any time up to
150 days after the effectiveness of the registration statement therefor, or, in
the case of an offering under a registration statement on Form S-3 pursuant to
paragraph (C), 150 days after the written notice from Transferee requesting such
offering pursuant to paragraph (C), when a prospectus relating to an offering of
Registrable Securities pursuant to this Section 1(b) is required to be delivered
under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to Transferee, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
promptly make available to Transferee any such supplement or amendment.
(H) The Company will enter into customary agreements, including an
underwriting agreement that includes representations and warranties, covenants
and indemnification and contribution provisions, to the extent applicable,
substantially identical
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to those contained in the underwriting agreements for the Company's initial
public offering, and take such other actions as are reasonably requested by
Transferee in order to facilitate the disposition of such Registrable
Securities.
(I) The Company will make available for inspection by the
Transferee, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other professional
retained by the Transferee or underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility under the Securities Act,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any Inspectors in connection with such
registration statement, subject to reasonable arrangements to ensure that
privileges are maintained. Records which the Company determines, in good faith,
to be confidential and which it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such registration
statement or the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction. Transferee agrees that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it for any reason other than such due
diligence purposes unless and until such is made generally available to the
public. Transferee further agrees that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of the Records deemed confidential.
(J) The Company will furnish to the Transferee and to each
underwriter, if any, a signed counterpart, addressed to the Transferee or
underwriter, of an opinion or opinions of counsel to the Company and a comfort
letter or comfort letters from the Company's independent public accountants,
each, to the extent applicable, in substantially identical form as those
delivered in connection with the Company's initial public offering or otherwise
in customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as the Transferee or the
managing underwriter therefore reasonably requests.
(K) The Company will otherwise use its reasonable efforts to comply
with all applicable rules and regulations of the Securities Exchange Commission,
and make available to its security holders, as soon as reasonably practicable,
an earnings statement covering a period of 12 months that begins within three
months after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act.
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(L) The Company will use its reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(M) The Company shall make its senior management available for any
road show recommended by the underwriters in connection with not more than one
demand registration each year, and not more than five demand registrations in
total, in each case including any registration effected pursuant to a Form S-3.
(N) Anything in this Agreement to the contrary notwithstanding, the
Company shall not be obligated to file a registration statement pursuant to this
Section 1(b) with respect to any Voting Securities or to include among the
securities covered by a registration statement any Voting Securities requested
to be so included pursuant to this Section 1(b) unless the Transferee shall
have, on request of the Company, promptly furnished to the Company in writing
all information (x) with respect to Transferee, such Voting Securities owned by
Transferee and requested to be so included and the transaction or transactions
which Transferee contemplates and (y) which any law, rule or regulation requires
to be disclosed therein. Transferee shall promptly furnish to the Company all
information required to be disclosed in order to correct any misstatement or
omission of a material fact contained in any registration statement or
prospectus, or any amendment or supplement thereto, or any preliminary
prospectus, based upon any information previously supplied by Transferee to the
Company.
(O) Transferee agrees by acquisition of Registrable Securities, if
so required by the managing underwriter, not to sell, make any short sale of,
loan, grant any option for the purchase of, effect any public sale or
distribution of or otherwise dispose of any securities of the Company of the
same class of the Registrable Securities, during the 15 days prior to and the 90
days after any underwritten registration pursuant to this Section 1(b) has
become effective (or such shorter period as may be required by the underwriter),
except as part of such underwritten registration. Notwithstanding the foregoing
sentence, Transferee shall be entitled during the foregoing period to sell
securities in a private sale.
(ii) Incidental Registration Rights. In addition to the provisions
contained in Section 1(b)(i), if the Company shall at any time after the first
anniversary of the Closing seek to register under the Securities Act for sale to
the public in an underwritten offering any Voting Securities either for its own
account or for the account of any one or more securityholders (other than a
registration relating to Voting Securities issued or granted pursuant to any
employee or director stock-based plan or in connection with an acquisition by
the Company), and if the form of registration statement proposed to be used may
be used for the registration of Registrable Securities, on each such occasion as
it shall furnish Transferee
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with prior written notice thereof promptly, but in any event less than 10
business days from the initial filing date. At the written request of
Transferee, given within 5 days after the receipt of such notice, to register
any of Transferee's Registrable Securities, the Company will cause such
Registrable Securities, for which registration shall have been requested, to be
included in such registration statement so as to permit the sale or other
disposition by Transferee as part of such underwritten public offering (an
"Incidental Registration"). Not withstanding the foregoing, if, in addition to
the Registrable Securities, the Incidental Registration is to include shares to
be offered by the Company for its own account, shares of Trust Beneficiaries
having registration rights pursuant to Section 3.3(c)(v) of the Plan or shares
of others persons with registration rights, and the Board of Directors of the
Company believes, based on advice of a nationally recognized investment banking
firm selected by the Company, that including all such shares would be likely to
have an adverse effect upon the price, timing or distribution of the shares
included in the Incidental Registration, then only such number of shares, if
any, as the Board shall determine can be included without adversely affecting
the offering shall be included in the offering, and the shares to be included in
the Incidental Registration will be allocated in the following priority: (x) all
shares of the Company and such Trust Beneficiaries shall be included first, (y)
all shares of the Transferee and the Other Private Placement Purchasers shall be
included second, in proportion, as nearly as practicable, to the total number of
shares of Common Stock proposed to be offered by each of the Transferee and the
Other Private Placement Purchasers at the time of filing of the registration
statement for the registration, and (z) all shares if Common Stock of any other
persons with registration rights shall be included third, in proportion, as
nearly as practicable, to the total number of shares of Common Stock proposed to
be offered by each of them at the time of the filing of the registration
statement
(iii) Transferee Obligation to Furnish Information. It shall be a
condition precedent to the obligations of the Company to take any action
pursuant to this Section 1(b) with respect to the Registrable Securities that
Transferee shall furnish to the Company such information regarding itself and
the intended method of disposition of the Registrable Securities as shall be
required to effect the registration of such Registrable Securities under the
Securities Act.
(c) Expenses. All expenses incurred by the Company in complying with
Section 1(b), including any registration and filing fees, fees and expenses of
compliance with securities or blue sky laws of the United States (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), printing expenses, fees and
disbursements of counsel and independent public accountants for the Company,
fees of the National Association of Securities Dealers, Inc., listing or
quotation fees, internal expenses (including all salaries and expenses of its
officers and employees performing legal and accounting duties), fees of transfer
agents and registrars,
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and the fees and expenses of counsel and accountants for Transferee shall be
borne by the Company. Transferee shall be responsible for all underwriting fees,
discounts or commissions and transfer taxes, with respect to Registrable
Securities.
(d) Rule 144. The Company will file any reports required to be filed
by it under the Securities Act and the 1934 Act and will take such further
action as Transferee may reasonably request, all to the extent required from
time to time to enable Transferee to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of Transferee, the Company will deliver to Transferee
a written statement as to whether it has complied with such requirements.
2. Standstill Provisions. Transferee agrees that, during the term of
this Agreement, without the Company's prior written consent, Transferee will
not:
(a) acquire, announce an intention to acquire, offer or propose to
acquire, or agree to acquire, directly or indirectly, by purchase or
otherwise, beneficial ownership of any Voting Securities, or direct or
indirect rights to options to acquire (through purchase, exchange,
conversion or otherwise) any Voting Securities, if, immediately after any
such acquisition, Transferee would beneficially own, in the aggregate,
Voting Securities representing (x) more than 4.9% of the outstanding
Voting Securities, or (y) more than 5.0% of the outstanding Voting
Securities, provided that approval beneficially to own such percentage of
Voting Securities is obtained from the New York Superintendent of
Insurance prior to such increase to 5%, except in each case for any
increase resulting from transactions in the ordinary course of the
business of Transferee as underwriter, broker/dealer, investment manager
or investment adviser or from ordinary trading activities, unless such
transactions were made with the purpose of changing or influencing the
control of the Company;
(b) seek representation on the Board of Directors of the Company or
the removal of any Company Directors or a change in the composition or
size of the Board;
(c) make any statement or proposal, whether written or oral, to the
Board of Directors of the Company, or to any director, officer or agent of
the Company, or make any public announcement or proposal whatsoever with
respect to a merger or other business combination, sale or transfer of
assets, recapitalization, dividend, share repurchase, liquidation or other
extraordinary
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corporate transaction with the Company or any other transaction which
could result in a change of control, solicit or encourage any other person
to make any such statement or proposal, or take any action which might
require the Company to make a public announcement regarding the
possibility of any transaction referred to in this paragraph (c) or
similar transaction, or advise, assist or encourage any other persons in
connection with the foregoing, except in the ordinary course of its
investment banking activities as financial advisor;
(d) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are defined in Rule 14a-1 under
the ▇▇▇▇ ▇▇▇) to vote any Voting Securities, seek to advise, encourage or
influence any person or entity with respect to the voting of any Voting
Securities, initiate or propose any shareholder proposal or induce or
attempt to induce any other person to initiate any shareholder proposal,
or execute any written consent with respect to the Company, except in the
ordinary course of its investment banking activities as financial advisor;
(e) deposit any Voting Securities into a voting trust or subject any
Voting Securities to any arrangement or agreement with respect to the
voting of any Voting Securities other than this Agreement;
(f) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to any Voting
Securities, other than a group which Transferee is a member of as of the
date hereof;
(g) otherwise act, alone or in concert with others, to seek to
exercise any control or influence over the management, Board of Directors
or policies of the Company;
(h) make a public request to the Company (or its directors,
officers, shareholders, employees or agents) to take any action in respect
of the foregoing matters; or
(i) disclose any intention, plan or arrangement inconsistent with
the foregoing.
Transferee shall not, individually or acting in concert with the
Other Private Placement Purchasers, direct or cause the direction, or attempt to
direct or cause the direction of, the management or policies of any of the
Company, MetLife and any of their affiliates that
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are controlled insurers, or otherwise exercise, or attempt to exercise, control
over such companies or such affiliates, whether directly or indirectly.
3. Specific Performance. Each of Transferee and the Company
acknowledges that the other party would not have an adequate remedy at law for
money damages if any of the covenants or agreements of the other party in this
Agreement were not performed in accordance with its terms and therefore agrees
that the other party shall be entitled to specific enforcement of such covenants
or agreements and to injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
4. Legend. Each of the Company and Transferee agrees that the
certificates for the Shares shall bear the following legend thereon, which
legend shall remain until the earliest of (a) the date the securities
represented by such certificates are transferred in accordance with the
provisions of this Agreement or (b) the termination of this Agreement pursuant
to Section 9(a) or (c) or the termination of this Agreement (other than Sections
1(b), (c) and (d)) pursuant to Section 9(b), or as otherwise agreed among the
Company, MetLife and Transferee:
THESE SECURITIES WERE SOLD IN A PRIVATE PLACEMENT, WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AND MAY BE OFFERED
OR SOLD ONLY IF REGISTERED UNDER THE SECURITIES ACT OF 1933 OR IF
AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THESE SECURITIES ARE
SUBJECT TO THE PROVISIONS OF A TRANSFEREE STANDSTILL AGREEMENT
DATED DECEMBER 22, 2000, BY AND BETWEEN THE ISSUER AND SANTUSA
HOLDING, S.L., AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN
ACCORDANCE THEREWITH.
5. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter of the
Agreement. This Agreement may not be amended or any provision waived except by a
writing signed, in the case of an amendment, by each party hereto and, in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof unless the other party is materially
prejudiced thereby, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights and remedies provided by law. At any time from and
including the date of this Agreement until the second anniversary of the IPO,
Transferee and the Company shall not amend, directly or
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indirectly, any provision of this Agreement without the prior approval of the
New York Superintendent of Insurance (the "Superintendent"). At any time from
and including the second anniversary of the IPO (as defined in the Stock
Purchase Agreement) until the end of the term of this Agreement, the Company
shall notify the New York Insurance Department (the "Department") of any
amendment, direct or indirect, to any provision, and the termination, of this
Agreement. This Agreement is not assignable by either of the parties without the
prior written consent of the other, except that this Agreement may be assigned
by the Transferee to one or more of its affiliates to whom Shares are properly
transferred in accordance with this Agreement, provided that, no assignment
pursuant to this Section 5 will relieve Transferee of its obligations hereunder.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns and upon
transferees of Voting Securities who are affiliates or associates of Transferee.
6. Severability. If any terms, provision or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions and restrictions of this
Agreement shall remain in full force and effect, unless such action would
substantially impair the benefits to either party of the remaining provisions of
this Agreement.
7. Notices. Any notices and other communications required to be
given pursuant to this Agreement shall be deemed to have been duly given or made
as of the date delivered or mailed if delivered personally, mailed by registered
or certified mail (postage prepaid, return receipt requested), or delivered by
facsimile or by telex, as follows:
If to the Company:
MetLife, Inc.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Transferee:
Banco Santander Central Hispano, S.A.
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: 011-34-91-558-18-50
with copies to:
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Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Transferee shall notify the Company, and the Company shall notify
the Department, of (a) any transfer of the Shares prior to the first anniversary
of the Closing or any transfer thereafter requiring the entering into of a
standstill agreement pursuant to clause (x) of the proviso to the second
sentence of Section 1(a) and (b) any registration pursuant to Section 1(b). The
Company shall notify the Department of any consent requested or granted pursuant
to Section 2.
8. Effectiveness of Agreement. This Agreement shall become effective
only upon the execution and delivery of this Agreement by the parties hereto.
9. Termination. This Agreement shall terminate upon the occurrence
of any of the following:
(a) the written agreement of the Company and Transferee to terminate
this Agreement, provided that any termination prior to the second
anniversary of the Closing shall not be effective without the approval of
the Superintendent;
(b) the fifth anniversary of the date of the Closing, except for
Sections 1(b), (c) and (d), which shall continue in effect indefinitely
until terminated by any other provision of this Section 9; or
(c) Transferee shall cease to own Voting Securities other than any
Voting Securities acquired in the ordinary course of business of
Transferee as
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underwriter, broker-dealer, investment manager or investment adviser
(unless such transactions were made with the purpose or with the effect of
changing or influencing the control of the Company).
10. Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
11. Governing Law, etc. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflict of law provisions thereof. This Agreement may be executed in one
or more counter parts, which together will constitute a single agreement.
12. Jurisdiction. Except as otherwise expressly provided in this
Agreement, the parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be
brought in the United States District Court for the Southern District of New
York or, if such court shall not have jurisdiction over such suit, any New York
State court sitting in New York City, so long as such courts shall have subject
matter jurisdiction over such suit, action or proceeding, and that any cause of
action arising out of this Agreement shall be deemed to have arisen from a
transaction of business in the State of New York, and each of the parties hereby
irrevocably consents only with respect to such suits, actions or proceedings to
the jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any such
court has been brought in an inconvenient forum. Without limiting the foregoing,
each party agrees that service of process on such party by hand delivery as
provided in Section 7 shall be deemed effective service of process on such
party.
13. Waiver of Jury Trial. Each of the parties hereto irrevocably
waives any and all right to trial by jury in any legal proceeding arising out of
or related to this Agreement or the transactions contemplated hereby.
14. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
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If you are in agreement with the foregoing, please sign the
accompanying copy of this letter and return it to the Transferee, whereupon this
letter shall be a binding agreement between you and the Transferee.
Very truly yours,
SANTUSA HOLDING, S.L.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Cabeza ▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CABEZA ▇▇ ▇▇▇▇
Title: MANAGING DIRECTOR
Accepted and agreed as of
the date first written above:
METLIFE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: VICE PRESIDENT AND SECRETARY
