METLIFE, INC.
METLIFE CAPITAL TRUST II
METLIFE CAPITAL TRUST III
6.375% COMMON EQUITY UNITS
UNDERWRITING AGREEMENT
June 15, 2005
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time, MetLife, Inc., a Delaware corporation (the "Company"),
MetLife Capital Trust II, a statutory trust formed under the laws of Delaware
(the "Series A Trust") and MetLife Capital Trust III, a statutory trust formed
under the laws of Delaware (the "Series B Trust", and together with the Series A
Trust, the "Trusts") propose to enter into one or more Pricing Agreements (each
a "Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (the "Underwriters" with respect
to such Pricing Agreement and the securities specified therein) the number of
common equity units specified in Schedule I to the Pricing Agreement (the
"Securities") of the Company, each with an initial stated amount of $25.00 and
consisting of (i) a stock purchase contract (each, a "Stock Purchase Contract")
under which the holder will agree to purchase and the Company will agree to sell
on each of two dates (each, a "Stock Purchase Date") determined in or pursuant
to the Stock Purchase Contract Agreement (as defined below) for a price of
$12.50 per security a number of shares of common stock (the "Issuable Common
Stock") of the Company, par value $0.01 per share (the "Common Stock"),
determined pursuant to the terms of Stock Purchase Contract, (ii) a 1/80, or
1.25%, undivided beneficial ownership interest in a Series A Trust Preferred
Security (securities of such series, the "Series A Trust Preferred Securities")
of the Series A Trust with an initial liquidation amount of $1,000, and (iii) a
1/80, or 1.25%, undivided beneficial ownership interest in a Series B Trust
Preferred Security (securities of such series, the "Series B Trust Preferred
Securities," and together with the Series A Trust Preferred Securities, each a
series of "Trust Preferred Securities") of the Series B Trust with an initial
liquidation amount of $1,000, and as identified in Schedule II to the applicable
Pricing Agreement.
The Company and the Trusts are referred to herein, individually or
together, as the "Issuers".
Each series of the Trust Preferred Securities will be guaranteed by the
Company (the "Guarantees") with respect to distributions and payments upon
liquidation, redemption and otherwise, to the extent set forth in the related
Guarantee Agreement (each a "Guarantee
Agreement"), to be dated as of the Closing Date between the Company and ▇.▇.
▇▇▇▇▇▇ Trust Company, National Association as trustee (in respect of each
Guarantee Agreement, the "Guarantee Trustee").
A holder's ownership interest in the Trust Preferred Securities initially
will be pledged to secure such holder's obligation to purchase Common Stock on
each Stock Purchase Date, such pledge to be on the terms and conditions set
forth in the Pledge Agreement (the "Pledge Agreement"), to be dated as of the
Closing Date, among the Company, JPMorgan Chase Bank, National Association as
collateral agent (the "Collateral Agent"), custodial agent (the "Custodial
Agent") and securities intermediary (the "Securities Intermediary") and ▇.▇.
▇▇▇▇▇▇ Trust Company, National Association as stock purchase contract agent (the
"Stock Purchase Contract Agent").
The Stock Purchase Contracts will be issued pursuant to the Stock Purchase
Contract Agreement, to be dated as of the Closing Date (the "Stock Purchase
Contract Agreement") between the Company and the Stock Purchase Contract Agent.
The Stock Purchase Contracts together with the related Trust Preferred
Securities are herein referred to as the "Normal Common Equity Units".
A holder of Normal Common Equity Units, at its option, may elect to create
"Stripped Common Equity Units" by substituting pledged U.S. treasury securities
for any pledged ownership interests in the Trust Preferred Securities. Unless
otherwise indicated, the term "Common Equity Units" includes both Normal Common
Equity Units and Stripped Common Equity Units.
The Series A Trust will issue to the Company common units of beneficial
interest (the "Series A Trust Common Securities"), representing undivided
beneficial ownersship interests in the assets of the Series A Trust. The Company
will issue to the Series A Trust Junior Subordinated Debt Securities, Series A
(the "Series A Debt Securities"). The Series A Debt Securities will be issued
pursuant to the Subordinated Indenture to be dated as of the Closing Date (the
"Base Indenture"), between the Company and ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association as trustee (the "Series A Indenture Trustee"), and a supplement to
the Base Indenture, to be dated as of the Closing Date (the "Series A
Supplemental Indenture" and, together with the Base Indenture and any other
amendments or supplements thereto, the "Series A Indenture").
The Series B Trust will issue to the Company common units of beneficial
interest (the "Series B Trust Common Securities", and together with the Series A
Trust Common Securities, the "Trust Common Securities"), representing undivided
beneficial ownership interests in the assets of the Series B Trust. The Company
will issue to the Series B Trust Junior Subordinated Debt Securities, Series B
(the "Series B Debt Securities", together with the Series A Debt Securities, the
"Debt Securities"). The Series B Debt Securities will be issued pursuant to the
Base Indenture, between the Company and ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association, as trustee (the "Series B Indenture Trustee", and together with the
Series A Indenture Trustee, the "Indenture Trustees"), and a supplement to the
Base Indenture, to be dated as of the Closing Date (together with the Base
Indenture and any other amendments or supplements thereto, the
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"Series B Indenture"). The Series A Indenture and the Series B Indenture are
referred to herein, individually or together, as the "Indentures".
Pursuant to a remarketing agreement (the "Remarketing Agreement") to be
entered into among the Company, the Series A Trust, the Series B Trust, the
Stock Purchase Contract Agent and a financial institution to be selected by the
Company to act as a reset agent and a remarketing agent (together, the
"Remarketing Agent"), each series of Trust Preferred Securities will be
remarketed, subject to certain terms and conditions.
The "Component Securities" means, collectively, the Stock Purchase
Contracts, the Trust Preferred Securities, the Debt Securities, the Guarantees
and the Issuable Common Stock.
The terms and rights of any particular issuance of Securities (including
the Component Securities) shall be as specified in (i) the Pricing Agreement
relating thereto, (ii) the Declaration of Trust of the Series A Trust (the
"Original Series A Declaration"), dated as of May 17, 2001, between the Company,
as the sponsor, and Bank One Trust Company, N.A., and the Amended and Restated
Declaration of Trust (the "Amended Series A Declaration", and together with the
Original Series A Declaration, the "Series A Declaration"), to be dated as of
the Closing Date, among the Company, as the sponsor, ▇.▇. ▇▇▇▇▇▇ Trust Company,
National Association, as property trustee (the "Series A Property Trustee"),
Chase Bank USA, National Association, as the Delaware trustee (the "Series A
Delaware Trustee"), the administrative trustees named therein (the "Series A
Administrative Trustees") and the holders thereunder, (iii) the Declaration of
Trust of the Series B Trust (the "Original Series B Declaration"), dated as of
May 17, 2001, between the Company, as the sponsor, and Bank One Trust Company,
N.A., and the Amended and Restated Declaration of Trust (the "Amended Series B
Declaration", together with the Original Series B Declaration, the "Series B
Declaration", and together with the Series A Declaration, the "Declarations"),
to be dated as of the Closing Date, among the Company, as the sponsor, ▇.▇.
▇▇▇▇▇▇ Trust Company, National Association, as property trustee (the "Series B
Property Trustee"), Chase Bank USA, National Association, as the Delaware
trustee (the "Series B Delaware Trustee"), the administrative trustees named
therein (the "Series B Administrative Trustees") and the holders thereunder,
(iv) the Series A Indenture, (v) the Series B Indenture, (vi) the Guarantee
Agreements, (vii) the Stock Purchase Contract Agreement or (viii) the Pledge
Agreement (each document listed in clauses (ii) through (viii), together with
the Remarketing Agreement, a "Securities Agreement").
The Company hereby confirms its engagement of Banc of America Securities
LLC ("BAS") as, and BAS hereby confirms its agreement with the Company to render
services as, a "qualified independent underwriter", within the meaning of
Section (b)(15) of Rule 2720 of the NASD, Inc. (the "NASD") with respect to the
offering and sale of the Securities. BAS, solely in its capacity as the
qualified independent underwriter and not otherwise, is referred to herein as
the "QIU". The price at which the Securities will be sold to the public shall
not be higher than the maximum price recommended by the QIU.
Particular sales of Securities may be made from time to time to the
Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole
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representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. This Underwriting Agreement shall not
be construed as an obligation of the Company to sell any of the Securities or as
an obligation of any of the Underwriters to purchase the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Securities specified
therein.
Each Pricing Agreement shall specify the total number of units of
Securities that are the subject of such Pricing Agreement, the initial public
offering price of such Securities, the purchase price to the Underwriters of
such Securities, the names of the Underwriters of such Securities, the names of
the Representatives of such Underwriters and the total number of units of the
Securities to be purchased by each Underwriter. In addition, such Pricing
Agreement shall set forth the date, time and manner of delivery of such
Securities and payment therefor. Such Pricing Agreement shall also specify (in a
manner not inconsistent with the applicable Securities Agreements and the
registration statement and prospectus with respect thereto) the terms of such
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
1. Representations and Warranties. Each of the Issuers, jointly and
severally, represents and warrants to the Underwriters as of the date hereof and
as of the Closing Date (as hereinafter defined), and agrees with each of the
Underwriters, as follows:
(a) The Issuers have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Nos. 333-124358,
▇▇▇-▇▇▇▇▇▇-▇▇ and 333-124358-02) under the Securities Act of 1933, as amended
(the "Act"), which has become effective, for the registration under the Act of
the Securities (including the Component Securities). The Company meets the
requirements for use of Form S-3 under the Act. No stop order suspending the
effectiveness of the registration statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied with.
The Issuers propose to file with the Commission pursuant to Rule 424 under the
Act a supplement or supplements to the form of prospectus included in such
registration statement relating to the Securities (including the Component
Securities) and the plan of distribution thereof. Such registration statement,
including the exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the "Registration Statement"; such prospectus in the form in
which it appears in the Registration Statement is hereinafter called the "Base
Prospectus"; and such supplemented form of prospectus, in the form in which it
shall first be filed with the Commission pursuant to Rule 424 (including the
Base Prospectus as so supplemented), is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has heretofore
been filed pursuant to Rule 424 is hereinafter called the "Preliminary
Prospectus." Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the
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"Exchange Act"), on or before the date of this Agreement, or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to
and include any document filed under the Exchange Act after the date of this
Agreement, or the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated therein
by reference; each Preliminary Prospectus and the prospectuses filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in
all material respects with the Act and the rules thereunder and each Preliminary
Prospectus and the Final Prospectus delivered to the Representatives for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission via the Electronic Data Gathering,
Analysis and Retrieval ("▇▇▇▇▇") system, except to the extent permitted by
Regulation S-T;
(b) As of the date hereof, as of the effective date of the Registration
Statement, when the Final Prospectus is first filed or transmitted for filing
pursuant to Rule 424 under the Act, when prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date or any settlement date (as defined
in the Pricing Agreement), (i) the Registration Statement, as amended as of any
such time, and the Final Prospectus, as amended or supplemented as of any such
time, will comply in all material respects with the applicable requirements of
the Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the Exchange Act and the respective rules thereunder and each of the
Indentures, the Declarations and the Guarantee Agreements will comply in all
material respects with the applicable requirements of the Trust Indenture Act
and the rules thereunder and (ii) neither the Registration Statement, as amended
as of any such time, nor the Final Prospectus, as amended or supplemented as of
any such time, will contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, however, that none of the
Issuers make any representations or warranties as to (x) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of any trustee under any
of the Securities Agreements or (y) the information contained in or omitted from
the Registration Statement, the Final Prospectus or the Preliminary Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information relating to such Underwriter or the underwriting
arrangements furnished in writing to the Company by any Underwriter expressly
for use in the Registration Statement and the Final Prospectus;
(c) Each document incorporated or deemed to be incorporated by reference
in the Registration Statement and the Final Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the Act or the Exchange
Act, as applicable, and, when read together with the other information in the
Final Prospectus, at the time the Registration Statement became effective, at
the time the Final Prospectus was issued and at the Closing Date (as hereinafter
defined) did not
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and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading;
(d) Neither any of the Issuers nor any subsidiary of the Company that
would qualify as a "Significant Subsidiary" of the Company under Regulation S-X
(each, a "Significant Subsidiary") has sustained since the date of the latest
audited financial statements included or incorporated by reference in the Final
Prospectus any loss or interference material to the business of any of the
Issuers and its respective subsidiaries, considered as a whole, other than as
described in or contemplated by the Final Prospectus, from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree; and, since the
respective dates as of which information is given in the Registration Statement
and the Base Prospectus, otherwise than as described or contemplated in the
Final Prospectus, there has not been any (i) material addition, or development
involving a prospective material addition, to the liability of Metropolitan Life
Insurance Company ("MetLife") for future policy benefits, policyholder account
balances and other claims, other than in the ordinary course of business, (ii)
material decrease in the surplus of MetLife or material change in the capital
stock or other ownership interests (other than issuances of common stock upon
the exercise of outstanding employee stock options or pursuant to existing
employee compensation plans or on the conversion or exchange of convertible or
exchangeable securities outstanding on the date of the applicable Pricing
Agreement) of any Issuer or any Significant Subsidiary or any material increase
in the long-term debt of any of the Issuers and its respective subsidiaries,
considered as a whole, or (iii) material adverse change, or development
involving a prospective material adverse change, in or affecting the business,
financial position, reserves, surplus, equity or results of operations (in each
case considered either on a statutory accounting or U.S. generally accepted
accounting principles ("GAAP") basis, as applicable) of any Issuer and its
respective subsidiaries considered as a whole;
(e) The Company and each Significant Subsidiary has good and marketable
title in fee simple to all material real property and good and marketable title
to all material personal property owned by it, in each case free and clear of
all liens, encumbrances and defects, except such as are described in the Final
Prospectus or such as would not have a material adverse effect on the business,
financial position, equity, reserves, surplus or results of operations of any
Issuer and its subsidiaries, considered as a whole ("Material Adverse Effect"),
and do not materially interfere with the use made and proposed to be made of
such property by the Company or any Significant Subsidiary, and any material
real property and material buildings held under lease by the Company or any of
its subsidiaries are held under valid, subsisting and enforceable leases with
such exceptions as are not material and do not materially interfere with the use
made and currently proposed to be made of such property and buildings by the
Company or any Significant Subsidiary;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Final Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification and good
standing, except to the extent that the failure to be so qualified and in good
standing would not have a Material Adverse Effect;
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MetLife was duly converted from a mutual life insurance company to a stock life
insurance company on April 7, 2000 in accordance with the Plan of Reorganization
of MetLife under Section 7312 of the New York Insurance Law; each Significant
Subsidiary is validly existing as a corporation and is in good standing under
the laws of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Final Prospectus; and each Significant Subsidiary is duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which its ownership
or lease of property or the conduct of its business requires such qualification
and good standing, except to the extent that the failure to be so qualified and
in good standing would not have a Material Adverse Effect;
(g) Each of the Trusts has been duly created and is validly existing in
good standing as a statutory trust under the Delaware Statutory Trust Act (the
"Delaware Statutory Trust Act") with the power and authority (trust and other)
to own its properties and conduct its business as described in the Final
Prospectus; each of the Trusts is qualified to transact business as a foreign
entity and is in good standing in each jurisdiction in which such qualification
is necessary except where the failure to so qualify or be in good standing would
not have a Material Adverse Effect; neither Trust has conducted any business to
date, and neither Trust will conduct any business in the future that would be
inconsistent with the description of such Trust set forth in the Base
Prospectus; neither Trust is a party to or bound by any agreement or instrument
other than this Agreement, the Original Series A Declaration or the Original
Series B Declaration, as applicable (and, at the Closing Date, the Amended
Series A Declaration or the Amended Series B Declaration, as applicable), and
the other agreements and instruments contemplated by this Agreement or the
Declarations; neither Trust has any liabilities or obligations other than those
arising out of the transactions contemplated by this Agreement or the applicable
Declaration and described in the Final Prospectus; all filings required under
the Delaware Statutory Trust Act with respect to the creation and valid
existence of each Trust as a Delaware statutory trust have been made (and are in
full force and effect) and all such filings will continue to be made;
(h) Each of the Issuers has the corporate or trust (as the case may be)
power and authority to execute and deliver this Agreement, the applicable
Securities Agreements, the Stock Purchase Contracts and the Debt Securities, the
Issuable Common Stock, the Trust Preferred Securities, the Trust Common
Securities, as applicable, and to consummate the transactions contemplated
hereby and thereby;
(i) The Company has an authorized capitalization as set forth and
described in the Final Prospectus, and all of the issued shares of capital stock
of the Company have been duly authorized and validly issued and are fully paid
and nonassessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company; except as disclosed in the Final Prospectus,
there are no outstanding options or warrants to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into or any contracts or commitments to sell shares of
the Company's capital stock or any such options, rights, warrants, convertible
securities or obligations; the description of the Company's stock option plans
and the options or other rights granted and exercised thereunder set forth in
the Final Prospectus accurately and fairly describe the information required to
be shown with respect to such plans, arrangements, options and rights; except as
disclosed in the Final Prospectus, there are no rights
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of any person, corporation or other entity to require registration of any shares
of common stock or any other securities of the Company in connection with the
filing of the Registration Statement and the issuance and sale of the Securities
(including the Component Securities) to the Underwriters pursuant to this
Agreement and the applicable Pricing Agreements; all of the issued shares of
capital stock or other ownership interests of MetLife have been duly and validly
authorized and issued, are fully paid and nonassessable and are owned directly
or indirectly by the Company free and clear of all liens, encumbrances, equities
or claims; all of the issued shares of capital stock of One Madison Investment
(Cayco) Limited have been duly and validly authorized and issued, are fully paid
and nonassessable and, except for the de minimis indirect ownership interest of
a third party, are owned directly or indirectly by the Company free and clear of
all liens, encumbrances, equities or claims;
(j) The maximum number of shares of the Issuable Common Stock have been
duly and validly authorized and reserved for issuance and, when issued and
delivered in accordance with the provisions of the Stock Purchase Contracts, the
Stock Purchase Contract Agreement and the Pledge Agreement, will be duly and
validly issued, fully paid and non-assessable and will conform to the
description of the Issuable Common Stock contained in the Final Prospectus or to
any amended or supplemented description of the Issuable Common Stock contained
in a then effective report or registration statement filed pursuant to the
Exchange Act; and the issuance of the Issuable Common Stock will not be subject
to any preemptive or similar rights;
(k) The Series A Declaration has been duly authorized by the Company and,
at the Closing Date, will have been duly executed and delivered by the Company
and the Series A Administrative Trustees, and assuming due authorization,
execution and delivery of the Series A Declaration by the Series A Property
Trustee and the Series A Delaware Trustee, the Series A Declaration will be a
valid and binding obligation of the Company and the Series A Administrative
Trustees enforceable against the Company and the Series A Administrative
Trustees in accordance with its terms, except to the extent enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity, and will conform in all material
respects to the description thereof contained in the Final Prospectus; and each
of the Series A Administrative Trustees is an employee of the Company and has
been authorized by the Company to execute and deliver the Series A Declaration;
(l) The Series B Declaration has been duly authorized by the Company and,
at the Closing Date, will have been duly executed and delivered by the Company
and the Series B Administrative Trustees, and assuming due authorization,
execution and delivery of the Series B Declaration by the Series B Property
Trustee and the Series B Delaware Trustee, the Series B Declaration will be a
valid and binding obligation of the Company and the Series B Administrative
Trustees enforceable against the Company and the Series B Administrative
Trustees in accordance with its terms, except to the extent enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity, and will conform to the
description thereof contained in the Final Prospectus; and each of the Series B
Administrative Trustees is an employee of the Company and has been authorized by
the Company to execute and deliver the Series B Declaration;
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(m) Each of the Declarations, the Indentures and the Guarantee Agreements
has been duly qualified under the Trust Indenture Act;
(n) The Securities have been duly authorized for issuance and sale to the
Underwriters and, when issued and delivered against payment therefor as provided
herein, will be validly issued and will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except to the extent that enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, moratorium and other similar laws relating to
or affecting creditors' rights generally and by general principles of equity;
the Securities will conform to the description thereof contained in the Final
Prospectus; and the issuance of the Securities is not subject to preemptive or
other similar rights;
(o) The Series A Trust Preferred Securities and the Series A Trust Common
Securities have been duly authorized by the Series A Trust; when the Series A
Trust Preferred Securities and the Series A Trust Common Securities are issued
and delivered by the Series A Trust against payment for the Series A Trust
Preferred Securities as provided herein and against payment for the Series A
Trust Common Securities as provided in the Series A Declaration, the Series A
Trust Preferred Securities will be non-assessable undivided beneficial interests
in the assets of the Series A Trust, and the Series A Trust Preferred Securities
and the Series A Trust Common Securities will be duly and validly issued and
fully paid undivided beneficial interests in the assets of the Series A Trust,
will conform in all material respects to the description thereof contained in
the Final Prospectus and will be valid and binding obligations of the Series A
Trust and will entitle the holders thereof to the benefits of the Series A
Declaration and the Remarketing Agreement, except to the extent that the
enforceability of the Series A Declaration and the Remarketing Agreement may be
limited by bankruptcy, insolvency, fraudulent transfer, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity; the issuance of the Series A Trust Preferred Securities
and the Series A Trust Common Securities is not subject to any preemptive or
other similar rights; the holders of the Series A Trust Preferred Securities and
the Series A Trust Common Securities will be entitled to the same limitation of
personal liability as that extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware
("DGCL"); all of the issued and outstanding Series A Trust Common Securities
will be directly owned by the Company free and clear of all liens, encumbrances,
security interests, equities or claims; and the Series A Trust Preferred
Securities and the Series A Trust Common Securities are the only interests
authorized to be issued by the Series A Trust;
(p) The Series B Trust Preferred Securities and the Series B Trust Common
Securities have been duly authorized by the Series B Trust; when the Series B
Trust Preferred Securities and the Series B Trust Common Securities are issued
and delivered by the Series B Trust against payment for the Series B Trust
Preferred Securities as provided herein and against payment for the Series B
Trust Common Securities as provided in the Series B Declaration, the Series B
Trust Preferred Securities will be non-assessable undivided beneficial interests
in the assets of the Series B Trust, and the Series B Trust Preferred Securities
and the Series B Trust Common Securities will be duly and validly issued and
fully paid undivided beneficial interests in the assets of the Series B Trust,
will conform in all material respects to the description thereof contained in
the Final Prospectus and will be valid and binding obligations of the Series B
Trust and will entitle the holders thereof to the benefits of the Series B
Declaration and the Remarketing Agreement, except to the extent that the
enforceability of the Series B Declaration and the
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Remarketing Agreement may be limited by bankruptcy, insolvency, fraudulent
transfer, moratorium and other similar laws relating to or affecting creditors'
rights generally and by general principles of equity; the issuance of the Series
B Trust Preferred Securities and the Series B Trust Common Securities is not
subject to any preemptive or other similar rights; the holders of the Series B
Trust Preferred Securities and the Series B Trust Common Securities will be
entitled to the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the DGCL; all of
the issued and outstanding Series B Trust Common Securities will be directly
owned by the Company free and clear of all liens, encumbrances, security
interest, equities or claims; and the Series B Trust Preferred Securities and
the Series B Trust Common Securities are the only interests authorized to be
issued by the Series B Trust;
(q) The Stock Purchase Contract Agreement has been duly authorized by the
Company and, at the Closing Date, when validly executed and delivered by the
Company and assuming due authorization, execution and delivery of the Stock
Purchase Contract Agreement by the Stock Purchase Contract Agent, will
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except to the extent that
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, moratorium and other similar laws relating to or affecting creditors'
rights generally and by general principles of equity; and the Stock Purchase
Contract Agreement will conform in all material respects to the description
thereof contained in the Final Prospectus;
(r) The Stock Purchase Contracts underlying the Securities have been duly
authorized by the Company; when the Stock Purchase Contracts are issued and
delivered by the Company against payment therefor as provided herein and in the
Stock Purchase Contract Agreement, the Stock Purchase Contracts will be duly and
validly issued and delivered and will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except to the extent that enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, moratorium and other similar laws relating to
or affecting creditors' rights generally and by general principles of equity;
the Stock Purchase Contracts will conform in all material respects to the
description thereof contained in the Final Prospectus;
(s) The Remarketing Agreement has been duly authorized by each of the
Issuers and, at the date of the Remarketing Agreement will have been duly
executed and delivered by each of the Issuers; and the Remarketing Agreement
will conform in all material respects to the description thereof contained under
the caption "Description of the Stock Purchase Contracts - Remarketing" in the
Final Prospectus;
(t) Each of the Guarantee Agreements has been duly authorized by the
Company and, when validly executed and delivered by the Company, and, assuming
due authorization, execution and delivery of the Guarantee Agreements by the
Guarantee Trustees, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms except to
the extent that enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity; and each of the
Guarantee
10
Agreements will conform in all material respects to the description thereof
contained in the Final Prospectus;
(u) The Pledge Agreement has been duly authorized by the Company and, at
the Closing Date, when validly executed and delivered by the Company and
assuming due authorization, execution and delivery of the Pledge Agreement by
the Collateral Agent and the Stock Purchase Contract Agent, will constitute a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforceability thereof may
be limited by bankruptcy, insolvency, fraudulent transfer, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity; and the Pledge Agreement will conform in all material
respects to the description thereof contained in the Final Prospectus;
(v) The Pledge Agreement is effective to create, as collateral security
for the performance when due by the holders under the respective Stock Purchase
Contracts, a security interest (as that term is defined in Section 1-201(37) of
the Uniform Commercial Code, as adopted and in effect in the State of New York
(the "New York UCC")) in favor of the Collateral Agent for the benefit of the
Company, in the right, title and interest of such holders in the securities and
other assets and interests pledged to the Collateral Agent pursuant to the
Pledge Agreement (the "Pledged Securities");
(w) The Series A Indenture has been duly authorized by the Company; the
Base Indenture constitutes, and the Series A Supplemental Indenture, when
validly executed and delivered by the Series A Indenture Trustee, will
constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity; and the Series A Indenture will
conform in all material respects with the description thereof contained in the
Final Prospectus;
(x) The Series B Indenture has been duly authorized by the Company; the
Base Indenture constitutes, and the Series B Supplemental Indenture, when
validly executed and delivered by the Series B Indenture Trustee, will
constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity; and the Series B Indenture will
conform in all material respects with the description thereof contained in the
Final Prospectus;
(y) The Series A Debt Securities have been duly authorized by the Company
and, at the Closing Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Series A Indenture and delivered
against payment therefor as described in the Final Prospectus, will constitute
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent transfer, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity; and will be in the form contemplated by, and will be
entitled to the benefits of, the
11
Series A Indenture; and the Series A Debt Securities will conform in all
material respects to the description thereof contained in the Final Prospectus;
(z) The Series B Debt Securities have been duly authorized by the Company
and, at the Closing Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Series B Indenture and delivered
against payment therefor as described in the Final Prospectus, will constitute
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent transfer, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity; and will be in the form contemplated by, and will be
entitled to the benefits of, the Series B Indenture; and the Series B Debt
Securities will conform in all material respects to the description thereof
contained in the Final Prospectus;
(aa) As of the Closing Date, the Securities and the Issuable Common Stock
reserved for listing upon issuance following settlement of the Stock Purchase
Contract will have been approved for listing on the New York Stock Exchange (the
"Exchange"), subject to notice of issuance; and (i) as of the Closing Date, the
Securities, and (ii) as of each Stock Purchase Date, the applicable shares of
the Issuable Common Stock will be listed on the Exchange;
(bb) Each Significant Subsidiary that is required to be organized or
licensed as an insurance company in its jurisdiction of incorporation (each, an
"Insurance Subsidiary" and collectively, the "Insurance Subsidiaries") is
licensed as an insurance company in its respective jurisdiction of incorporation
and is duly licensed or authorized as an insurer in each other jurisdiction
where it is required to be so licensed or authorized to conduct its business, in
each case with such exceptions as would not have, individually or in the
aggregate, a Material Adverse Effect; except as otherwise described in the Final
Prospectus, each Insurance Subsidiary has all other approvals, orders, consents,
authorizations, licenses, certificates, permits, registrations and
qualifications (collectively, the "Approvals") of and from all insurance
regulatory authorities to conduct its business, with such exceptions as would
not have, individually or in the aggregate, a Material Adverse Effect; there is
no pending or, to the knowledge of the Company, threatened action, suit,
proceeding or investigation that could reasonably be expected to lead to any
revocation, termination or suspension of any such Approval, the revocation,
termination or suspension of which would have, individually or in the aggregate,
a Material Adverse Effect; and, to the knowledge of the Company, no insurance
regulatory agency or body has issued any order or decree impairing, restricting
or prohibiting the payment of dividends by any Insurance Subsidiary to its
parent which would have, individually or in the aggregate, a Material Adverse
Effect;
(cc) The Company and each Significant Subsidiary has all necessary
Approvals of and from, and has made all filings, registrations and declarations
(collectively, the "Filings") with, all insurance regulatory authorities, all
Federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, which are necessary to own,
lease, license and use its properties and assets and to conduct its business in
the manner described in the Final Prospectus, except where the failure to have
such Approvals or to make such Filings would not have, individually or in the
aggregate, a Material Adverse Effect; to the knowledge of the Company, the
Company and each Significant Subsidiary is in compliance with
12
all applicable laws, rules, regulations, orders, by-laws and similar
requirements, including in connection with registrations or memberships in
self-regulatory organizations, and all such Approvals and Filings are in full
force and effect and neither the Company nor any Significant Subsidiary has
received any notice of any event, inquiry, investigation or proceeding that
would reasonably be expected to result in the suspension, revocation or
limitation of any such Approval or otherwise impose any limitation on the
conduct of the business of the Company or any Significant Subsidiary, except as
described in the Final Prospectus or except for any such non-compliance,
suspension, revocation or limitation which would not have, individually or in
the aggregate, a Material Adverse Effect;
(dd) Each Insurance Subsidiary is in compliance with and conducts its
businesses in conformity with all applicable insurance laws and regulations of
its respective jurisdiction of incorporation and the insurance laws and
regulations of other jurisdictions which are applicable to it, in each case with
such exceptions as would not have, individually or in the aggregate, a Material
Adverse Effect;
(ee) Each Significant Subsidiary which is engaged in the business of
acting as a broker-dealer or an investment advisor (respectively, a
"Broker-Dealer Subsidiary" and an "Investment Advisor Subsidiary") is duly
licensed or registered as a broker-dealer or investment advisor, as the case may
be, in each jurisdiction where it is required to be so licensed or registered to
conduct its business, in each case, with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect; each Broker-Dealer
Subsidiary and each Investment Advisor Subsidiary has all other necessary
Approvals of and from all applicable regulatory authorities, including any
self-regulatory organization, to conduct its businesses, in each case with such
exceptions, as would not have, individually or in the aggregate, a Material
Adverse Effect; except as otherwise described in the Final Prospectus, none of
the Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries has received
any notification from any applicable regulatory authority to the effect that any
additional Approvals from such regulatory authority are needed to be obtained by
such subsidiary in any case where it could be reasonably expected that (x) any
of the Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries would in
fact be required either to obtain any such additional Approvals or cease or
otherwise limit engaging in certain business and (y) the failure to have such
Approvals or limiting such business would have a Material Adverse Effect; and
each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary is in
compliance with the requirements of the broker-dealer and investment advisor
laws and regulations of each jurisdiction which are applicable to such
subsidiary, and has filed all notices, reports, documents or other information
required to be filed thereunder, in each case with such exceptions as would not
have, individually or in the aggregate, a Material Adverse Effect;
(ff) The issue and sale of the Securities pursuant to any Pricing
Agreement, and the issue and sale of the Component Securities and the Trust
Common Securities, the entry into and the compliance by the Issuers with all of
the provisions of the Securities Agreements and this Agreement, and the
consummation of the transactions herein and therein contemplated, will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, or other agreement or instrument to which any Issuer or
any Significant Subsidiary is a party or by which any Issuer or any Significant
Subsidiary is bound or to which any of the property or assets of any Issuer or
any
13
Significant Subsidiary is subject, or which affects the validity, performance or
consummation of the transactions contemplated by this Agreement or the
Securities Agreements, nor will such action result in any violation of any
statute or any order, rule or regulation of any court or insurance regulatory
authority or other governmental agency or body having jurisdiction over any
Issuer or any Significant Subsidiary or any of their properties, in each case
other than such breaches, conflicts, violations, or defaults which individually
or in the aggregate, would not have a Material Adverse Effect and would not
adversely affect the validity or performance of each of the Issuers' obligations
under the Securities, the Component Securities, the Trust Common Securities, the
applicable Securities Agreements and this Agreement; as applicable; nor will
such action result in any violation of the provisions of the Declarations, the
certificate of incorporation or by-laws, as applicable, of any of the Issuers or
any Significant Subsidiary; and no Approval of or Filing with any such court or
insurance regulatory authority or other governmental agency or body is required
for the issue or sale of the Securities (including the Component Securities),
except (i) the registration under the Act of the Securities (including the
Component Securities) and (ii) such Approvals or Filings as may be required
under the Trust Indenture Act or state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriters;
(gg) Other than as set forth in the Final Prospectus, there are no legal
or governmental proceedings pending to which any of the Issuers or any
subsidiary of the Company is a party or to which any property of any of the
Issuers or any subsidiary of the Company is subject, challenging the
transactions contemplated by the Securities Agreements and this Agreement or
which, if determined adversely to any of the Issuers or any subsidiary of the
Company, could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect or would materially and adversely affect the ability
of the Company to perform its obligations under the Securities Agreements or
this Agreement; and, to the knowledge of each of the Issuers, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others other than as set forth in the Final Prospectus;
(hh) Neither of the Trusts is in violation of its Declaration; neither the
Company nor any Significant Subsidiary is in violation of any of its certificate
of incorporation or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it is bound or to which any of its property
or assets is subject, which violation or default would have, individually or in
the aggregate, a Material Adverse Effect;
(ii) The statements set forth in the Final Prospectus under the captions
"Description of the Common Equity Units", "Description of the Stock Purchase
Contracts", "Certain Provisions of the Stock Purchase Contracts, the Stock
Purchase Contract Agreement and the Pledge Agreement", "Description of the Trust
Preferred Securities", "Description of the Junior Subordinated Debt Securities",
"Description of the Guarantees", "Risk Factors" and "Proposed Acquisition of the
Citigroup Life Insurance and Annuities Business," insofar as they purport to
constitute a summary of the terms of the Securities, the Component Securities,
the Acquisition Agreement and related agreements, under the caption
"Underwriting" (except for any such statement made in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of the applicable Securities through the Representatives expressly
14
for use in the Final Prospectus under the caption "Underwriting"), and under the
captions "Business--Regulation", "Business--Competition" and "Legal
Proceedings", which have been incorporated therein by reference to the Company's
2004 Annual Report on Form 10-K and the Company's Quarterly Report on Form 10-Q
for the three months ended March 31, 2005, in each case as updated by the Final
Prospectus, insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete in all material
respects;
(jj) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement, the Final Prospectus and any Preliminary Prospectus, together with
the related schedules and notes, comply in all material respects with the
requirements of the Act and the Exchange Act, as applicable, and present fairly
in all material respects the financial position, the results of operations and
the changes in cash flows of such entities in conformity with GAAP at the
respective dates or for the respective periods to which they apply; and such
financial statements and related notes and schedules, if any, have been prepared
in accordance with GAAP consistently applied throughout the periods involved
(for the avoidance of doubt, the unaudited pro forma condensed consolidated
financial information, together with the related schedules and notes, included
or incorporated by reference in the Registration Statement, the Final Prospectus
and any Preliminary Prospectus shall not be deemed the financial statements of
the Company and its consolidated subsidiaries); the pro forma consolidated
statement of income and the pro forma consolidated balance sheet and the related
notes thereto set forth in the Registration Statement, the Final Prospectus and
any Preliminary Prospectus have been prepared in all material respects in
accordance with the applicable requirements of Rule 11-02 of Regulation S-X
promulgated under the Securities Exchange Act of 1934, as amended, have been
compiled on the pro forma basis described therein, and the assumptions used in
the preparation thereof were reasonable at the time made and the adjustments
used therein are based upon good faith estimates and assumptions believed by the
Company to be reasonable at the time made;
(kk) Deloitte & Touche LLP, which has audited certain consolidated
financial statements of the Company and its subsidiaries, is an Independent
Registered Public Accounting Firm as required by the Act and the rules and
regulations of the Commission thereunder;
(ll) None of the Issuers or any Significant Subsidiary is, or after giving
effect to the issue and sale of the Securities pursuant to any Pricing Agreement
will be, an "investment company", as such term is defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the rules
and regulations thereunder, although certain separate accounts of MetLife and of
certain Insurance Subsidiaries are required to register as investment companies
under the Investment Company Act;
(mm) This Agreement and the applicable Pricing Agreements with respect to
the applicable Securities have been duly authorized, executed and delivered by
each of the Issuers;
(nn) There are no contracts or documents which are required to be
described in the Registration Statement, the Final Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have
not been so described and filed as required;
15
(oo) None of the Company or its subsidiaries or, to the best of their
knowledge, any of their directors, officers or affiliates, has taken or will
take, directly or indirectly, any action designed to, or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the Securities in violation of Regulation M under the Exchange Act; and
(pp) The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act) that
complies with the requirements of the Exchange Act and has been designed by the
Company's principal executive officer and principal financial officer, or under
their supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. As
disclosed in the Company's 2004 Annual Report on Form 10-K, the Company's
internal control over financial reporting is effective and the Company is not
aware of any material weaknesses in its internal control over financial
reporting.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties set forth herein, each of the Issuers
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Issuers, at the purchase price set forth in
Schedule II to the applicable Pricing Agreement the total number of units of
Securities (as components thereof) set forth opposite such Underwriter's name in
Schedule I to the applicable Pricing Agreement.
3. Delivery and Payment. Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to each of the Issuers, shall be delivered by or on behalf of the Issuers
to the Representatives for the account of such Underwriter at the office, on the
date and at the time specified in the applicable Pricing Agreement (or such
later date not later than five business days after such specified date as the
Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Underwriters for the respective accounts of the several Underwriters against
payment by the several Representatives of the purchase price thereof by wire
transfer of Federal (same-day) funds to the account specified by the Company or
as otherwise set forth in the applicable Pricing Agreement.
4. Company Covenants. Each of the Issuers, jointly and severally, agrees
with each of the Underwriters of any Securities:
(a) To prepare the Final Prospectus as amended and supplemented in
relation to the applicable Securities in a form approved by the Representatives
and to file timely such Final Prospectus pursuant to Rule 424(b) under the Act;
to make no further amendment or any supplement to the Registration Statement or
Final Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to the applicable Securities and prior to the Closing Date
for such Securities unless the Representatives for such Securities shall have
had a reasonable opportunity to review and comment upon any such amendment or
supplement prior to
16
any filing thereof; to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Final Prospectus or any
amended Final Prospectus has been filed and to furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of such Securities and, during such same period, to advise the Representatives,
promptly after it receives notice thereof, of (i) the issuance by the Commission
of any stop order or of any order preventing or suspending the use of the Final
Prospectus, (ii) the suspension of the qualification of such Securities
(including the Component Securities) for offering or sale in any jurisdiction or
of the initiation or threatening of any proceeding for any such purpose, or
(iii) any request by the Commission for the amending or supplementing of the
Registration Statement or Final Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of the Final Prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities (including the Component
Securities) for offering and sale under the securities laws of such
jurisdictions as the Representatives may reasonably request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for so long as may be necessary to complete the distribution of
such Securities (including the Component Securities), provided that in
connection therewith none of the Issuers shall be required to qualify as a
foreign corporation, to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise subject;
(c) To furnish the Underwriters with copies of the Final Prospectus
(including as it may be amended or supplemented) in such quantities as the
Representatives may from time to time reasonably request, and, if the delivery
of a prospectus is required at any time in connection with the offering or sale
of such Securities, and if at such time any event shall have occurred as a
result of which the Final Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Final Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Final Prospectus or to file under
the Exchange Act any document incorporated by reference in the Final Prospectus
in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Representatives and upon their request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended Final
Prospectus or a supplement to the Final Prospectus which will correct such
statement or omission or effect such compliance; and the Final Prospectus and
any amendments or supplements thereto furnished to the Representatives shall be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
17
(d) To make generally available to securityholders of the Company as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of the Company, Rule 158);
(e) Not to issue, offer, sell, contract to sell or otherwise dispose of,
directly or indirectly, or publicly announce an intention to do any of the
foregoing, except with the prior written consent of the Representatives (which
consent shall not be unreasonably withheld) any shares of Common Stock or
securities convertible into or exchangeable for shares of Common Stock, during
the period beginning from June 1, 2005 and continuing to and including September
18, 2005 (other than (x) pursuant to employee stock option plans existing, or on
the conversion or exchange of convertible or exchangeable securities outstanding
on the date of such Pricing Agreement or (y) the sale or other disposition of
Common Stock by any separate account, investment company or similar investment
vehicle managed or advised by the Company or any affiliate of the Company that
invests in or seeks to replicate the performance of a market index that includes
the securities of the Company, in order to rebalance its investment portfolio to
match changes in the composition or weighting of companies within such index);
provided that the Company shall not be prohibited from issuing up to $3 billion
in Common Equity Units as part of the financing of the Acquisition (as defined
in the Final Prospectus) or from issuing shares of Common Stock or non-voting
convertible participating preferred stock to Citigroup Inc. in an aggregate
amount not to exceed $3 billion as contemplated in the Acquisition Agreement (as
defined in the Final Prospectus);
(f) During a period of five years from the effective date of the
Registration Statement, to furnish to the Representatives copies of all reports
or other communications (financial or other) furnished to stockholders of the
Company, and to furnish to the Representatives as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which the Securities or any
class of securities of the Company is listed (such financial statements to be on
a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission), provided that reports and financial statements furnished
to or filed with the Commission, and publicly available on ▇▇▇▇▇, or furnished
on the Company's website, shall be deemed to have been furnished to the
Representatives under this Section 4(f);
(g) To use their best efforts to list and maintain the listing of, subject
to notice of issuance, the Securities and the Issuable Common Stock reserved for
listing upon issuance following settlement of the Stock Purchase Contract on the
Exchange; and
(h) To reserve and keep available at all times, free of preemptive rights,
shares of Common Stock to satisfy the obligation of the Company to issue the
Issuable Common Stock pursuant to the Stock Purchase Contracts.
5. Fees and Expenses. Each of the Issuers, jointly and severally,
covenants and agrees with the several Underwriters to pay or cause to be paid
the following: (i) the fees,
18
disbursements and expenses of counsel and accountants to the Company and the
Trusts in connection with the registration of the Securities (including the
Component Securities) under the Act and all other expenses in connection with
the preparation, printing and filing of the Registration Statement, the Base
Prospectus, any Preliminary Prospectus and the Final Prospectus and any
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
this Agreement, any Pricing Agreement, any Securities Agreement, any Agreement
among Underwriters, any Blue Sky Survey and any other documents in connection
with the offering, purchase, sale and delivery of the Securities (including the
Component Securities); (iii) all expenses in connection with the qualification
of the Securities (including the Component Securities) for offering and sale
under state securities laws and insurance securities laws as provided in Section
4(b) hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky Survey; (iv) all fees and expenses in connection with listing the
Securities and the Issuable Common Stock on the Exchange; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the NASD of the terms of the
sale of the Securities (including the Component Securities); (vi) any fees
charged by securities rating services for rating the Securities, the Trust
Preferred Securities, the Trust Common Securities, the Debt Securities, the
Guarantees or the Issuable Common Stock; (vii) the cost of preparing the
Securities, the Component Securities and the Trust Common Securities; (viii) the
fees and expenses of the Stock Purchase Contract Agent, Collateral Agent,
Custodial Agent, Securities Intermediary, Remarketing Agent, the Guarantee
Trustees, the Indenture Trustees and any agent or counsel to any of the
foregoing, in connection with the Securities Agreements and the Securities
issued pursuant to any Securities Agreement; (ix) any travel expenses of an
Issuer's officers and employees and any other expenses of an Issuer in
connection with attending or hosting meetings with prospective purchasers of the
Securities; (x) the expenses of the QIU; and (xi) all other costs and expenses
incident to the performance of the obligations of the Issuers hereunder which
are not otherwise specifically provided for in this Section. Except as provided
in this Section, and Sections 7 and 10 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Securities by them and any advertising
expenses connected with any offers they may make.
6. Conditions to Underwriters' Obligations. The obligations of the
Underwriters of any Securities under the Pricing Agreement relating to such
Securities shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of each of the Issuers
herein or in certificates of any officer of any of the Issuers or any subsidiary
of the Company delivered pursuant to the provisions hereof are, at and as of the
Closing Date true and correct, the condition that each of the Issuers shall have
performed all of its obligations hereunder and under the Pricing Agreement
relating to such Securities to be performed at or before the Closing Date, and
the following additional conditions. For purposes of this Section 6, (i) the
term "Securities" shall include any Option Securities (as defined in the Pricing
Agreement) as to which the Underwriters have exercised the option set forth in
the Pricing Agreement and (ii) the term "Closing Date" shall mean, with respect
to any Option Securities, the applicable settlement date for the purchase of the
Option Securities by the Underwriters.
19
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
4(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters,
shall have furnished to the Underwriters such written opinion or opinions, dated
the Closing Date, with respect to formation of the Trusts, the incorporation of
the Company, the validity of the Securities being delivered on such Closing
Date, the Registration Statement and the Final Prospectus, and such other
related matters as the Underwriters may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Counsel -- General Corporate, of the
Company, shall have furnished to the Underwriters his written opinion, dated the
Closing Date, in form and substance reasonably satisfactory to the Underwriters,
to the effect that:
(i) The Company has an authorized capitalization as set forth and
described in the Final Prospectus, and all of the issued shares of capital stock
of the Company have been duly authorized and validly issued and are fully paid
and nonassessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company; securityholders of the Company have no preemptive
or other similar rights with respect to the Securities arising out of the
certificate of incorporation or the by-laws of the Company or the DGCL; except
as disclosed in the Final Prospectus, there are no rights of any person,
corporation or other entity to require registration of any securities in
connection with the filing of the Registration Statement and the issuance and
sale of the Securities to the Underwriters pursuant to this Agreement and the
applicable Pricing Agreements; the Securities to be issued and sold to the
Underwriters pursuant to this Agreement, the applicable Pricing Agreements and
the applicable Securities Agreements conform in all material respects to the
descriptions thereof contained in the Final Prospectus; the maximum number of
shares of the Issuable Common Stock have been duly and validly authorized and
reserved for issuance and, when issued and delivered in accordance with the
provisions of the Stock Purchase Contracts, the Stock Purchase Contract
Agreement and the Pledge Agreement, will be duly and validly issued, fully paid
and non-assessable. The Issuable Common Stock conforms in all material respects
to the description of the Common Stock contained in the Final Prospectus;
(ii) All issued shares of capital stock or other ownership interests of
each Significant Subsidiary have been duly authorized and validly issued, are
fully paid and nonassessable, and (except as described in the Final Prospectus
and except for directors' qualifying shares) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims,
other than any lien, encumbrance, equity or claim which would not have a
Material Adverse Effect;
20
(iii) The Company and each Significant Subsidiary has been duly qualified
as a foreign corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which its ownership or lease of property
or the conduct of its business requires such qualification, except to the extent
that the failure to be so qualified and in good standing would not have a
Material Adverse Effect;
(iv) Each Insurance Subsidiary that is required to be organized or
licensed as an insurance company in its jurisdiction of incorporation is so
licensed, and is duly licensed or authorized as an insurer in each other
jurisdiction where it is required to be so licensed or authorized to conduct its
business as described in the Final Prospectus, in each case with such exceptions
as would not have, individually or in the aggregate, a Material Adverse Effect;
and, except as otherwise described in the Final Prospectus, has all other
Approvals of and from all insurance regulatory authorities to conduct its
business, with such exceptions as would not have, individually or in the
aggregate, a Material Adverse Effect; to such counsel's knowledge, there is no
pending or threatened action, suit, proceeding or investigation that could
reasonably be expected to lead to any revocation, termination or suspension of
any such Approval, the revocation, termination or suspension of which would
have, individually or in the aggregate, a Material Adverse Effect; and, to such
counsel's knowledge, no insurance regulatory agency or body has issued any order
or decree impairing, restricting or prohibiting the payment of dividends by any
such Insurance Subsidiary to its parent which would have, individually or in the
aggregate, a Material Adverse Effect;
(v) The Company and each Significant Subsidiary has all necessary
Approvals of and from, and has made all Filings with, all insurance regulatory
authorities, all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, which are
necessary to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Final Prospectus, except
where the failure to have such Approvals or to make such Filings would not have,
individually or in the aggregate, a Material Adverse Effect; to such counsel's
knowledge, all such Approvals and Filings are in full force and effect and
neither the Company nor any Significant Subsidiary has received any notice of
any event, inquiry, investigation or proceeding that would reasonably be
expected to result in the suspension, revocation or limitation of any such
Approval or otherwise impose any limitation on the conduct of the business of
the Company or any Significant Subsidiary, except as described in the Final
Prospectus or except for any such suspension, revocation or limitation which
would not have, individually or in the aggregate, a Material Adverse Effect;
(vi) Each "Broker-Dealer Subsidiary" and each "Investment Advisor
Subsidiary", is duly licensed or registered as a broker-dealer or investment
advisor, as the case may be, in each jurisdiction where it is required to be so
licensed or registered to conduct its business, in each case, with such
exceptions as would not have, individually or in the aggregate, a Material
Adverse Effect; each Broker-Dealer Subsidiary and each Investment Advisor
Subsidiary has all other necessary Approvals of and from all applicable
regulatory authorities, including any self-regulatory organization, to conduct
its business, in each case with such exceptions as would not have, individually
or in the aggregate, a Material Adverse Effect; except as otherwise described in
the Final Prospectus, to such counsel's knowledge, no Broker-Dealer Subsidiary
or Investment Advisor Subsidiary has received any notification from any
applicable regulatory authority to the effect that any additional Approvals from
such regulatory authority are needed to be obtained by
21
such subsidiary in any case where it could be reasonably expected that (x) such
Broker-Dealer Subsidiary or Investment Advisor Subsidiary would in fact be
required either to obtain any such additional Approvals or cease or otherwise
limit engaging in certain business and (y) the failure to have such Approvals or
limiting such business would have a Material Adverse Effect;
(vii) To such counsel's knowledge and other than as set forth in the Final
Prospectus, there are no legal or governmental proceedings pending to which any
Issuer or any Significant Subsidiary is a party or to which any property of any
Issuer or any Significant Subsidiary is subject, challenging the transactions
contemplated by the Securities Agreements, this Agreement and the applicable
Pricing Agreements or which, if determined adversely to any of the Issuers or
any Significant Subsidiary, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect or would materially and adversely
affect the ability of any Issuer to perform its obligations under the Securities
Agreements or this Agreement; and, to such counsel's knowledge and other than as
described or contemplated in the Final Prospectus, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(viii) The issue and sale of the Securities (including the Component
Securities), the entry into and the compliance by the Issuers with all of the
provisions of the Securities Agreements and this Agreement, and the consummation
of the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any agreement or instrument listed as an exhibit to
the Registration Statement or any other indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which, to the knowledge of such
counsel, any of the Issuers or any Significant Subsidiary is a party or by which
any of the Issuers or any Significant Subsidiary is bound or to which any of the
property or assets of any of the Issuers or any Significant Subsidiary is
subject, or which affects the validity, performance or consummation of the
transactions contemplated by this Agreement or the Securities Agreements, nor
will such action result in any violation of any statute or any order, rule or
regulation of any court or insurance regulatory authority or other governmental
agency or body having jurisdiction over any of the Issuers or any Significant
Subsidiaries or any of their properties, in each case other than such conflicts,
breaches, violations or defaults as would not, individually or in the aggregate,
have a Material Adverse Effect, nor will such action result in any violation of
the provisions of the Declarations, the certificate of incorporation or by-laws,
as applicable, of any of the Issuers or any Significant Subsidiary; provided,
that no opinion need be given with respect to (i) the Act, the Exchange Act, the
Trust Indenture Act, the rules and regulations issued pursuant to each such act,
or any order, rule or regulation made or established by the NASD, or (ii) any
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(ix) The statements set forth in the Final Prospectus under the captions
"Business--Regulation", "Business--Competition" and "Legal Proceedings", which
have been incorporated therein by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 2004 and the Company's Quarterly
Report on Form 10-Q for the three months ended March 31, 2005, in each case as
updated by the Final Prospectus, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate and
complete in all material respects;
22
(x) Each of the documents filed by the Company pursuant to the Exchange
Act, and incorporated by reference into the Registration Statement and the Final
Prospectus as of the date hereof, when it was filed, complied in all material
respects with the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, except that such counsel need not
express any opinion as to the financial statements and related notes and
schedules and other financial data included or incorporated by reference therein
or excluded therefrom; and
(xi) To such counsel's knowledge, neither of the Trusts is a party to, or
bound by any agreement or instrument other than this Agreement, the Pricing
Agreement and the agreements and instruments described in or contemplated by the
Declarations or the Final Prospectus; to such counsel's knowledge, neither of
the Trusts has any liabilities or obligations other than those arising out of
the transactions described in or contemplated by this Agreement, the Pricing
Agreement or the Final Prospectus.
In rendering such opinion, such counsel may state that such counsel is
admitted to practice law in the State of New York and that he expresses no
opinion as to the laws of any jurisdiction other than the United States, the
State of New York and the DGCL; and such counsel shall be entitled to rely in
respect of the above opinions upon opinions of local or in-house counsel of the
Company or its subsidiaries and in respect of matters of fact upon certificates
of officers of the Company or its subsidiaries, provided that such counsel shall
state that such counsel believes that both the Underwriters and such counsel are
justified in relying upon such opinions and certificates.
(d) The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request;
(e) On the date hereof, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and at the Closing Date for the
applicable Securities, Deloitte & Touche LLP shall have furnished to the
Representatives a letter, dated the respective dates of delivery thereof, in
form and substance reasonably satisfactory to you, confirming that they are
Independent Registered Public Accountants with respect to the Company and the
Company's subsidiaries within the meaning of the Act and the Exchange Act and
the respective applicable published rules and regulations thereunder, and
further to the effect set forth in Annex II hereto;
(f) The Underwriters shall have received from Deloitte & Touche LLP (and
furnished to you in form and substance satisfactory to you) a review report with
respect to "Management's Discussion and Analysis of Financial Condition and
Results of Operations of the Company", as set forth in the Company's most recent
reports on Forms 10-K and 10-Q, respectively, in accordance with Statement on
Standards for Attestation Engagement No. 10 issued by the Auditing Standards
Board of the American Institute of Certified Public Accountants;
(g) On the date hereof, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and at the Closing Date for the
applicable Securities, KPMG LLP shall have
23
furnished to the Representatives a letter, dated the respective dates of
delivery thereof, in the form set forth in Annex III hereto;
(h) Other than as set forth or contemplated in the Final Prospectus,
neither any Issuer nor any Significant Subsidiary shall have sustained (i) since
the date of the latest audited financial statements included or incorporated by
reference in the Final Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, and (ii) since the respective dates as of which information is given in
the Final Prospectus, there shall not have been any change in the surplus of
MetLife or the capital stock of any of the Issuers or any increase in the
long-term debt of any of the Issuers and its respective subsidiaries considered
as a whole, or any change, or any development involving a prospective change, in
or affecting the business, financial position, stockholders' equity or results
of operations of any of the Issuers and its respective subsidiaries considered
as a whole, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the offering or the
delivery of the applicable Securities on the terms and in the manner
contemplated in the Final Prospectus;
(i) On or after the date of the Pricing Agreement relating to the
applicable Securities (i) no downgrading shall have occurred in the rating
accorded the debt securities of the Company or any Significant Subsidiary or the
financial strength or claims paying ability of the Company or any Significant
Subsidiary by A.M. Best Company or any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any debt security or the financial strength or the
claims paying ability of the Company or any Significant Subsidiary, the effect
of which, in any such case described in clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the applicable
Securities on the terms and in the manner contemplated in the Final Prospectus;
(j) On or after the date of the Pricing Agreement relating to the
applicable Securities there shall not have occurred any of the following: (i) a
change in U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the reasonable
judgment of the Representatives, be likely to prejudice materially the success
of the proposed issue, sale or distribution of the applicable Securities,
whether in the primary market or in respect of dealings in the secondary market;
(ii) a suspension or material limitation in trading in securities generally on
the Exchange; (iii) a suspension or material limitation in trading in the
Company's securities on the Exchange; (iv) a suspension or material limitation
in clearing and/or settlement in securities generally; (v) a general moratorium
on commercial banking activities declared by either Federal or New York State
authorities; or (vi) the material outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war (including without limitation as a result of an act of
terrorism) if the effect of any such event specified in this clause (vi) in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the offering or the delivery of the Securities being delivered on the
Closing Date on the terms and in the manner contemplated in the Final
Prospectus;
24
(k) Each of the Issuers shall have complied with any request by the
Representatives with respect to the furnishing of copies of the Final Prospectus
in compliance with the provisions of Section 4(c) hereof;
(l) The Declarations, the Guarantee Agreements, the Pledge Agreement, the
Stock Purchase Agreement and the Indentures shall have been executed and
delivered; in each case in a form reasonably satisfactory to the Representatives
(consistent with the description thereof in the Final Prospectus);
(m) The Securities and, subject to notice of issuance, the Issuable Common
Stock reserved for listing upon issuance following settlement of the Stock
Purchase Contract, shall have been duly listed on the Exchange;
(n) At the Closing Date, the Representatives shall have received a
certificate of the Company, dated as of the Closing Date, to the effect that (i)
the representations and warranties of the Issuers contained in Section 1 hereof
are true and correct in all respects with the same force and effect as though
expressly made at and as of Closing Date and (ii) each of the Issuers has
complied in all respects with all agreements and all conditions on its part to
be performed under this Agreement at or prior to the Closing Date;
(o) LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Company, shall
have furnished to the Underwriters their written opinion, dated the Closing
Date, in form and substance reasonably satisfactory to the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation and in good standing under the laws of the State of Delaware, with
the requisite corporate power and authority to own its properties and conduct
its business as described in the Final Prospectus;
(ii) The Company has the requisite corporate power and authority to
execute and deliver this Agreement, the applicable Securities Agreements, the
Securities, the Stock Purchase Contracts, the Issuable Common Stock, the Debt
Securities and the Guarantees, and to consummate the transactions contemplated
hereby and thereby;
(iii) This Agreement has been duly authorized, executed and delivered by
the Company;
(iv) The issuance of the Issuable Common Stock will not be subject to any
preemptive or similar rights under the Company's Certificate of Incorporation or
the Delaware General Corporation Law;
(v) The Securities have been duly authorized for issuance and sale to the
Underwriters and, when issued and delivered against payment therefor as provided
herein, will be validly issued and will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except to the extent that enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, moratorium and other similar laws relating to
or affecting creditors' rights generally and by general principles of equity;
25
(vi) The execution and delivery by the Company of the Stock Purchase
Contract Agreement and the performance by the Company of its obligations
thereunder have been duly authorized by the Company and, at the Closing Date,
when validly executed and delivered by the Company and assuming due
authorization, execution and delivery thereof by the Stock Purchase Contract
Agent, will constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such principles are considered in a proceeding
at law or in equity);
(vii) The execution and delivery by the Company of the Stock Purchase
Contracts underlying the Securities and the performance by the Company of its
obligations thereunder have been duly authorized by the Company; when the Stock
Purchase Contracts are executed and delivered by the Company against payment
therefor as provided herein and the Stock Purchase Contract Agreement, the Stock
Purchase Contracts will be duly and validly executed and delivered and will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such principles are considered in a proceeding at law or in equity);
(viii) The execution and delivery by the Company of the Amended Series A
Declaration and the performance by the Company of its obligations thereunder has
been duly authorized by the Company;
(ix) The execution and delivery of the Company of the Amended Series B
Declaration and the performance by the Company of its obligations thereunder has
been duly authorized by the Company;
(x) The execution and delivery of the Remarketing Agreement and the
performance by the Company of its obligations thereunder has been duly
authorized by the Company;
(xi) The execution and delivery by the Company of the Series A Indenture
and the performance by the Company of its obligations thereunder has been duly
authorized by the Company; the Base Indenture does constitute, and the Series A
Supplemental Indenture, when validly executed and delivered by the Series A
Indenture Trustee, will constitute, a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms subject to
bankruptcy, insolvency, fraudulent transfer, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such principles are considered in a proceeding
at law or in equity);
(xii) The execution and delivery by the Company of the Series B Indenture
and the performance by the Company of its obligations thereunder has been duly
authorized by the Company; the Base Indenture constitutes, and the Series B
Supplemental Indenture, when validly executed and delivered by the Series B
Indenture Trustee, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms subject to
bankruptcy, insolvency, fraudulent transfer, moratorium and other similar laws
relating
26
to or affecting creditors' rights generally and by general principles of equity
(regardless of whether such principles are considered in a proceeding at law or
in equity);
(xiii) Each of the Series A Declaration, the Series B Declaration, the
Series A Indenture, the Series B Indenture and the Guarantee Agreements has been
duly qualified under the Trust Indenture Act;
(xiv) The execution and delivery by the Company of the Series A Debt
Securities and the performance by the Company of its obligations thereunder have
been duly authorized by the Company and, at the Closing Date, will have been
executed by the Company and, when authenticated in the manner provided for in
the Series A Indenture and delivered against payment therefor as described in
the Final Prospectus, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with its terms except to
the extent that enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such principles are considered in a proceeding at law or in equity); and
will be in the form contemplated by, and will be entitled to the benefits of,
the Series A Indenture;
(xv) The execution and delivery by the Company of the Series B Debt
Securities and the performance by the Company of its obligations thereunder have
been duly authorized by the Company and, at the Closing Date, will have been
executed by the Company and, when authenticated in the manner provided for in
the Series B Indenture and delivered against payment therefor as described in
the Final Prospectus, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with its terms subject to
bankruptcy, insolvency, fraudulent transfer, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such principles are considered in a proceeding
at law or in equity); and will be in the form contemplated by, and will be
entitled to the benefits of, the Series B Indenture;
(xvi) The execution and delivery by the Company of each of the Guarantee
Agreements and the performance by the Company of its obligations thereunder has
been duly authorized by the Company and, when validly executed and delivered by
the Company, and, assuming due authorization, execution and delivery of the
Guarantee Agreements by the Guarantee Trustees, will constitute a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms except subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
principles are considered in a proceeding at law or in equity);
(xvii) The execution and delivery by the Company of the Pledge Agreement
and the performance by the Company of its obligations thereunder has been duly
authorized by the Company and, at the Closing Date, when validly executed and
delivered by the Company and assuming due authorization, execution and delivery
of the Pledge Agreement by the Collateral Agent and the Stock Purchase Contract
Agent, will constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms subject to
bankruptcy, insolvency, fraudulent transfer, moratorium and other similar laws
relating
27
to or affecting creditors' rights generally and by general principles of equity
(regardless of whether such principles are considered in a proceeding at law or
in equity);
(xviii) (B) The Pledge Agreement is effective to create, as security for
the performance when due by each holder of Normal Common Equity Units of such
holder's obligations under the Stock Purchase Contracts that are among the
components of such Normal Common Equity units, a security interest (as that term
is defined in Section 1-201(37) of the New York UCC) in favor of the Collateral
Agent for the benefit of the Company in the right, title and interest of such
holder in the Collateral (as defined in the Pledge Agreement), to the extent
such Collateral is subject to Article 9 of the New York UCC. In the case of
Collateral consisting of Pledged Trust Preferred Securities that are
certificated (as defined in Section 8-102(a)(4) of the New York UCC), such
security interest will be perfected, (i) upon delivery by ▇.▇. ▇▇▇▇▇▇ Trust
Company, National Association, as Stock Purchase Contract Agent, on behalf of
such holders to JPMorgan Chase Bank, National Association, as Securities
Intermediary, in the State of New York of a certificate or certificates
representing such Pledged Securities (effectively endorsed to JPMorgan Chase
Bank, National Association, as Securities Intermediary) and (ii) the crediting
by the Securities Intermediary of such Pledged Securities to the Collateral
Account maintained by the Securities Intermediary in the name of JPMorgan Chase
Bank, National Association, as Collateral Agent. In the case of Collateral
consisting of security entitlements (as defined in Section 8-102(a)(17) of the
New York UCC) relating to Pledged Treasury Securities, such security interest
will (assuming that the applicable law at the time any Pledged Treasury
Securities serve as Collateral is identical to the applicable law in effect on
the Closing Date) be perfected when such Pledged Treasury Securities are
credited to an account of JPMorgan Chase Bank, National Association, as
Securities Intermediary, with the Federal Reserve Bank of New York and are
credited by JPMorgan Chase Bank, National Association, as Securities
Intermediary, to the Collateral Account maintained by the Securities
Intermediary in the name of JPMorgan Chase Bank, National Association, as
Collateral Agent;
(xix) Based solely on a certificate received from the Secretary of State
of the State of Delaware, MetLife is validly existing as a corporation and is in
good standing under the laws of the State of Delaware, with the corporate power
to own its properties and conduct its business as described in the Final
Prospectus;
(xx) Based on a review of applicable case law, upon the occurrence of a
Termination Event (as defined in the Stock Purchase Contract Agreement), Section
365(e)(l) of the Bankruptcy Code (11 U.S.C. Sections 101-1330, as amended)
should not substantively limit the provisions of Sections 3.15 and 5.06 of the
Stock Purchase Contract Agreement and Section 5.04 of the Pledge Agreement that
require termination of the Stock Purchase Contracts and release of the
Collateral Agent's security interest in the Pledged Securities (as defined in
the Pledge Agreement); provided, however, that restrictions respecting relief
from the automatic stay under Section 362 of the Bankruptcy Code may affect the
timing of the exercise of such rights and remedies;
(xxi) Neither the Issuers nor MetLife is, or after giving effect to the
issue and sale of the Securities pursuant to any Pricing Agreement will be, an
"investment company" required to be registered under the Investment Company Act,
although certain separate accounts of MetLife
28
and of its subsidiaries are required to register as investment companies under
the Investment Company Act;
(xxii) The Company and each Significant Subsidiary has made all filings,
qualifications or registrations required to be made pursuant to, and has
obtained all consents, approvals, licenses, authorizations or validations
required to be obtained under any law or regulation of the United States or any
state thereof for the issuance and sale by the Company of the Securities
(including the Component Securities to be issued by the Company), the compliance
by the Company with all provisions of this Agreement, the applicable Securities
Agreements and the Securities, and the consummation of the transactions herein
and therein contemplated, except for such filings, qualifications,
registrations, consents, approvals, licenses, authorizations or validations (i)
as may be required under state securities, insurance securities or Blue Sky laws
in connection with the purchase and distribution of the Securities by the
Underwriters (as to which we express no opinion), or (ii) individually or in the
aggregate, as would not affect the validity, performance of, or adversely affect
the consummation of, the transactions contemplated by this Agreement, the
applicable Securities Agreements, and the Securities or would not have a
Material Adverse Effect;
(xxiii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been issued,
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Act;
(xxiv) The statements set forth in the Final Prospectus under the captions
"Description of the Common Equity Units", "Description of the Stock Purchase
Contracts", "Certain Provisions of the Stock Purchase Contracts, the Stock
Purchase Contract Agreement and the Pledge Agreement", "Description of the Trust
Preferred Securities", "Description of the Junior Subordinated Debt Securities",
"Description of the Guarantee" and "Risk Factors," insofar as they purport to
constitute a summary of the terms of the Securities, the "Proposed Acquisition
of the Citigroup Life Insurance and Annuities Business", insofar as they purport
to constitute a summary of Acquisition Agreement and related agreements, and
under the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein adequately summarize
such terms, provisions, or documents, as the case may be, are accurate and
complete in all material respects;
(xxv) The discussion contained in the Final Prospectus under the caption
"Certain U.S. Federal Income Tax Consequences" adequately summarizes (subject to
the limitations and qualifications set forth therein) the material United States
federal income tax consequences of the acquisition, ownership and disposition of
the Securities in all material respects;
(xxvi) The Registration Statement, at the time it became effective, and
the Final Prospectus, as of its date, complied in all material respects with the
requirements of the Act and the general rules and regulations thereunder, the
Trust Indenture Act and the general rules and regulations thereunder and the
Exchange Act and the respective rules thereunder, except that in each case such
counsel need not express any opinion as to the financial statements and
schedules and other financial and accounting data included or incorporated by
reference therein or excluded therefrom, and, except to the extent expressly
stated in clauses (xxv) and (xxvi), such
29
counsel need not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the Final
Prospectus;
(xxvii) The Registration Statement has been declared effective by the
Commission under the Act, and the Final Prospectus has been filed with the
Commission in accordance with Rule 424(b) under the Act;
Such counsel shall also state that while such counsel has not itself
checked the accuracy and completeness of, or otherwise verified, and is not
passing upon and assumes no responsibility for, the accuracy or completeness of
the statements contained in the Registration Statement or the Final Prospectus
except to the limited extent stated in clauses (xxv) and (xxvi ) of this Section
6(o), no facts have come to the attention of such counsel which have led such
counsel to believe that, as of the date of the Pricing Agreement, the
Registration Statement or any further amendment thereto made by the Company
prior to such Closing Date (other than the financial statements and schedules
and other financial and accounting information contained therein, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as of its
date and as of such Closing Date, the Final Prospectus or any further amendment
or supplement thereto made by the Company prior to such Closing Date (other than
the financial statements and schedules and other financial and accounting
information contained therein, as to which such counsel need express no opinion)
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may state that such counsel is
admitted to practice law in the State of New York and that such counsel
expresses no opinion as to the laws of any jurisdiction other than the United
States, the State of New York and the DGCL; and such counsel shall be entitled
to rely in respect of the above opinions upon opinions of local or in-house
counsel of the Company or its subsidiaries and in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries.
(p) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Special Delaware counsel for the
Series A Trust, the Series B Trust and the Company shall have furnished to the
Underwriters their written opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) Each of the Trusts has been duly created and is validly existing as a
statutory trust in good standing under the laws of the State of Delaware. Under
the Delaware Statutory Trust Act and the Declarations, each of the Trusts has
all requisite trust power and authority to own its properties and conduct its
business, all as described in or contemplated by the Final Prospectus;
(ii) All filings required under the Delaware Statutory Trust Act with
respect to the creation and valid existence of each of the Trusts as a Delaware
statutory trust have been made and all such filings are in full force and
effect;
30
(iii) The Underwriting Agreement and each of the applicable Securities
Agreements to which a Trust is a party has been duly executed and delivered by
the applicable Trust;
(iv) Each of the Declarations constitutes a valid and binding obligation
of the Company and the Administrative Trustees, and is enforceable against the
Company and the Administrative Trustees, in accordance with its terms, except to
the extent that enforceability thereof may be limited by (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law) and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution;
(v) Under each of the Declarations and the Delaware Statutory Trust Act,
each of the Trusts has requisite trust power and authority (i) to issue and sell
the applicable Trust Preferred Securities and the Trust Common Securities as
described in or contemplated by this Agreement, the Stock Purchase Contract
Agreement, the Final Prospectus and the applicable Declaration, (ii) to execute,
deliver and perform its obligations under this Agreement, the Pricing Agreements
and the Remarketing Agreement, and (iii) to perform its obligations under the
applicable Trust Preferred Securities, Trust Common Securities and the
applicable Declaration;
(vi) Under the Delaware Statutory Trust Act and the Declarations, the
execution and delivery by each of the Trusts of this Agreement and the
applicable Pricing Agreements, and the performance by each of the Trusts of its
obligations hereunder and thereunder, have been authorized by all necessary
trust action on the part of each of the Trusts;
(vii) Under the Delaware Statutory Trust Act and the Declarations, the
execution and delivery by each of the Trusts of the Remarketing Agreement, and
the performance by each of the Trusts of its obligations thereunder, have been
duly authorized by all necessary trust action on the part of each of the Trusts;
(viii) The Series A Trust Preferred Securities and the Series A Trust
Common Securities have been duly authorized by the Series A Declaration, and
when issued, executed, authenticated, delivered and paid for in accordance with
the terms of the Series A Declaration and the terms of this Agreement, will be
duly and validly issued, fully paid and, subject to the limitation set forth in
the last sentence of this subparagraph (viii) below, non-assessable (in the case
of the Series A Trust Preferred Securities) undivided beneficial interests in
the assets of the Series A Trust, and will constitute valid and binding
obligations of the Series A Trust enforceable against the Series A Trust, in
accordance with their terms, subject to (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or transfer and
other similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law) and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution; the
Series A Trust Preferred Securities and the Series A Trust Common Securities
will entitle the holders thereof to the benefits of the Series A Declaration,
except to the extent that enforceability of the Series A Declaration is subject
to (i) bankruptcy, insolvency,
31
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and remedies
of creditors generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law) and (iii) the effect of applicable public policy
on the enforceability of provisions relating to indemnification or contribution;
each holder of the Series A Trust Preferred Securities, as beneficial owners of
the Series A Trust, will be entitled to the same limitation of personal
liability as that extended to stockholders of private corporations for profit
organized under the DGCL. Such Counsel may note that the holders of the Series A
Trust Preferred Securities and the Series A Trust Common Securities may be
required to make payments or provide indemnity or security as set forth in the
Series A Declaration;
(ix) The Series B Trust Preferred Securities and the Series B Trust Common
Securities have been duly authorized by the Series B Declaration, and when
issued, executed, authenticated, delivered and paid for in accordance with the
terms of the Series B Declaration and the terms of this Agreement, will be duly
and validly issued, fully paid and, subject to the limitation set forth in the
last sentence of this subparagraph (ix) below and only with respect to the
Series B Trust Preferred Securities, non-assessable undivided beneficial
interests in the assets of the Series B Trust, and will constitute valid and
binding obligations of the Series B Trust enforceable against the Series B
Trust, in accordance with their terms, subject to (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and remedies
of creditors generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law) and (iii) the effect of applicable public policy
on the enforceability of provisions relating to indemnification or contribution;
the Series B Trust Preferred Securities and the Series B Trust Common Securities
will entitle the holders thereof to the benefits of the Series B Declaration,
except to the extent that enforceability of the Series B Declaration is subject
to (i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws relating
to or affecting the rights and remedies of creditors generally, (ii) principles
of equity, including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law) and (iii)
the effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution; each holder of the Series B Trust
Preferred Securities, as beneficial owners of the Series B Trust, will be
entitled to the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the DGCL. Such
Counsel may note that the holders of the Series B Trust Preferred Securities and
the Series B Trust Common Securities may be required to make payments or provide
indemnity or security as set forth in the Series B Declaration;
(x) Under the Declarations and the Delaware Statutory Trust Act, the
issuance of the Trust Preferred Securities and the Trust Common Securities is
not subject to any preemptive or other similar rights to subscribe for
additional Trust Preferred Securities or Trust Common Securities, and the Trust
Preferred Securities and the Trust Common Securities are the only undivided
beneficial interests in the assets of each of the Trusts authorized to be issued
by the Trust;
32
(xi) None of the execution and delivery by the Trusts of, or the
performance by each of the Trusts of its obligations under, this Agreement, the
issuance and sale of the Trust Preferred Securities and Trust Common Securities
by each of the Trusts in accordance with the terms of this Agreement, or the
consummation by each of the Trusts of the other transactions contemplated
thereby, violates any provisions of applicable Delaware law or Delaware
administrative regulations or the Declarations;
(xii) After due inquiry on June [ ], 2005, limited to, and solely to the
extent disclosed thereupon, court dockets for active cases of the Court of
Chancery of the State of Delaware in and for New Castle County, Delaware, of the
Superior Court of the State of Delaware in and for New Castle County, Delaware,
and of the United States District Court sitting in the State of Delaware, such
counsel is not aware of any legal or governmental proceeding pending against any
of the Trusts;
(xiii) No authorization, approval, consent, order, registration or
qualification of or with any Delaware state governmental authority or Delaware
state agency is required solely for the issuance and sale by each of the Trusts
of the applicable Trust Preferred Securities pursuant to this Agreement, or the
performance by each of the Trusts of its obligations under this Agreement, the
Declarations, the Trust Preferred Securities and the Trust Common Securities,
except such as has been previously obtained and made;
(q) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the
Delaware Trustee (solely for the purpose of the opinion set forth in this
paragraph (q)) shall have furnished to you their written opinion, dated as of
the Closing Date, in form and substance reasonably satisfactory to you, to the
effect that:
(i) The Delaware Trustee is a national banking association duly formed and
validly existing under the federal laws of the United States of America;
(ii) The execution, delivery and performance by the Delaware Trustee of
the Declarations has been duly authorized by all necessary corporate action on
the part of the Delaware Trustee; each of the Declarations has been duly
executed and delivered by the Delaware Trustee; each of the Declarations
constitutes the legal, valid and binding obligation of the Delaware Trustee, and
is enforceable against the Delaware Trustee in accordance with its terms; except
to the extent enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity;
(iii) The execution, delivery and performance of the Declarations by the
Delaware Trustee do not violate the articles of association or by-laws of the
Delaware Trustee;
(iv) The Delaware Trustee has requisite corporate power and authority to
execute, deliver and perform its obligations under each of the Declarations; and
(v) No consent of any federal or Delaware banking state authority is
required for the execution, delivery or performance of the Declarations by the
Delaware Trustee.
33
(r) ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Property Trustees, the
Guarantee Trustees and the Indenture Trustees (such trustees, collectively, the
"Trustees"), shall have furnished to the Underwriters their written opinion,
dated the Closing Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that:
(i) Each of the Trustees has been duly organized and is validly existing
as a national banking association formed under the laws of the United States and
is authorized thereunder to transact the business of banking and exercise
fiduciary powers.
(ii) (a) The Property Trustees have the corporate power and authority to
enter into and perform their obligations under, the Declarations, (b) the
Guarantee Trustees have the corporate power and authority to enter into, and
perform their obligations under, the Guarantee Agreements and (c) the Indenture
Trustees have the corporate power and authority to enter into, and perform their
obligations under, the Indentures, and each such Trustee has duly authorized,
executed and delivered the Declarations, the Guarantee Agreements and the
Indentures, respectively. Assuming that the Guarantee Agreements and the
Indentures constitute the legal, valid, binding and enforceable obligations of
the other parties thereto, such agreements constitute the legal, valid and
binding obligations of the respective Trustee party thereto, enforceable against
such Trustee in accordance with their respective terms except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting enforcement of creditors' rights and the application of equitable
principles in any action, at law or in equity.
(iii) The execution and delivery of the Declarations, the Guarantee
Agreements and the Indentures and the performance by the respective Trustee
party thereto of their respective terms do not conflict with or result in a
violation of the Articles of Association or By-laws of such Trustee or of any
agreement, instrument, order, writ, judgment or decree known to us to which such
Trustee is a party or is subject.
(iv) No approval, authorization or other action by, or filing with, any
United States of America or State of New York governmental authority having
jurisdiction over the banking or trust powers of the Trustees is required in
connection with their respective execution and delivery of the Declarations, the
Guarantee Agreements and the Indentures.
(s) ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, Custodial
Agent and Securities Intermediary (such agents and entities, collectively, the
"Agents"), shall have furnished to the Underwriters their written opinion, dated
the Closing Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that:
(i) Each of the Agents has been duly organized and is a validly existing
national banking association formed under the laws of the United States.
(ii) The Agents have the corporate power and authority to execute,
delivery and perform their obligations under, the Pledge Agreement, and each
such Agent has duly authorized, executed and delivered the Pledge Agreement.
Assuming that the Pledge Agreement is the legal, valid, binding and enforceable
obligation of the other parties thereto, such agreement constitutes the legal,
valid and binding obligation of the Agents, enforceable against the Agents
34
in accordance with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application relating to or affecting enforcement of creditors' rights
and the application of equitable principles in any action, at law or in equity.
(iii) The execution and delivery of the Pledge Agreement and the
performance by the Agents of its terms do not conflict with or result in a
violation of the Articles of Association or By-laws of the Agents or of any
agreement, instrument, order, writ, judgment or decree known to us to which the
Agents are a party or are subject.
(iv) No approval, authorization or other action by, or filing with, any
United States of America or State of New York governmental authority having
jurisdiction over the banking or trust powers of the Agents is required in
connection with their execution and delivery of the Pledge Agreement.
(t) ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Stock Purchase Contract Agent
shall have furnished to the Underwriters their written opinion, dated the
Closing Date, in form and substance reasonably satisfactory to the Underwriters,
to the effect that:
(i) The Stock Purchase Contract Agent has been duly organized and is
validly existing as a national banking association formed under the laws of the
United States.
(ii) The Stock Purchase Contract Agent has the corporate power and
authority to enter into, and perform its obligations under, the Stock Purchase
Contract Agreement and the Pledge Agreement, and the Stock Purchase Contract
Agent has duly authorized, executed and delivered the Stock Purchase Contract
Agreement and the Pledge Agreement. Assuming that the Stock Purchase Contract
Agreement and the Pledge Agreement are the legal, valid, binding and enforceable
obligations of the other parties thereto, such agreements constitute the legal,
valid and binding obligations of the Stock Purchase Contract Agent, enforceable
against the Stock Purchase Contract Agent in accordance with their respective
terms except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting enforcement of creditors' rights and the application of
equitable principles in any action, at law or in equity.
(iii) The execution and delivery of the Stock Purchase Contract Agreement
and the Pledge Agreement and the performance by the Stock Purchase Contract
Agent of their respective terms do not conflict with or result in a violation of
the Articles of Association or By-laws of the Stock Purchase Contract Agent or
of any agreement, instrument, order, writ, judgment or decree known to us to
which the Stock Purchase Contract Agent is a party or is subject.
(iv) No approval, authorization or other action by, or filing with, any
United States of America or State of New York governmental authority having
jurisdiction over the banking or trust powers of the Stock Purchase Contract
Agent is required in connection with its execution and delivery of the Stock
Purchase Contract Agreement and the Pledge Agreement.
35
7. Indemnification and Contribution.
(a) The Issuers, jointly and severally, will indemnify and hold harmless
each Underwriter, its partners, directors and officers and each person, if any,
who controls such Underwriter within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in (i)
the Registration Statement or any amendment or supplement (when considered
together with the document to which such supplement relates) thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any additional materials that any Issuer has
identified in writing to the Underwriters pursuant to this Subsection 7(a)(ii),
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or (iii) any Preliminary Prospectus, the Final Prospectus or any
other prospectus relating to the Securities, or any amendment or supplement
(when considered together with the document to which such supplement relates)
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that none of the Issuers shall be liable in any
such case to the extent that any such loss, claim, damage or liability (or
action in respect thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Final Prospectus and any other
prospectus relating to the Securities, or any such amendment or supplement(s) in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of the applicable Securities through the
Representatives expressly for use in the Final Prospectus; provided, further,
that none of the Issuers shall be liable to any Underwriter under this Section
7(a) with respect to any Preliminary Prospectus to the extent that a court of
competent jurisdiction has found by final and nonappealable order that any such
loss, claim, damage or liability of such Underwriter results from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the Final
Prospectus as then amended or supplemented (it being understood that if at the
time of any such claim such Underwriter shall certify that it has sent or given
the Final Prospectus as then amended or supplemented to any person making such
claim at or prior to the written confirmation of such sale, it shall be presumed
that such Final Prospectus has been so sent or given unless an Issuer shall have
sustained the burden of proving, in a court of competent jurisdiction by a final
and nonappealable order, that the facts are otherwise), if (i) such delivery to
such person is required by Section 5 of the Act, (ii) an Issuer has furnished
copies of such Final Prospectus as amended or supplemented to such Underwriter a
reasonable period of time prior to such Underwriter being required so to deliver
such Final Prospectus as amended or supplemented and (iii) the untrue or alleged
untrue statement or omission or alleged
36
omission of material fact contained in the Preliminary Prospectus was corrected
by such Final Prospectus as amended or supplemented.
(b) Each Underwriter will, severally and not jointly, indemnify and hold
harmless the Issuers, and their respective directors and officers who sign the
Registration Statement and each person, if any, who controls an Issuer within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities (or actions in respect thereof) to
which an Issuer may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Final Prospectus, any other prospectus relating to the
Securities, or any amendment or supplement (when considered together with the
document to which such supplement relates) thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Final Prospectus, any
other prospectus relating to the Securities, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Issuers by such Underwriter through the Representatives expressly for use
therein; and will reimburse such Issuer for any legal or other expenses
reasonably incurred by such Issuer in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; the omission so to notify the indemnifying party shall
relieve it from any liability which it may have to any indemnified party under
such subsection, to the extent the indemnifying party is actually prejudiced by
such omission. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party or any other indemnified
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation, unless (i) the indemnifying party and
such indemnified party shall have mutually agreed to the contrary, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to such indemnified party or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
indemnifying party and such indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. No indemnifying party shall, without the prior written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any
37
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party. In no event shall the
indemnifying party be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same allegations or
circumstances.
(d) If the indemnification provided for in this Section 7 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, other than due to the express
provisions thereof, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers on the one
hand and the Underwriters on the other from the offering of the applicable
Securities to which any such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Issuers on the one hand and
the Underwriters of the applicable Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Issuers on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Issuers bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Final Prospectus relating to the applicable Securities.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Each of the Issuers and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent
38
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of the applicable
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) Without limitation and in addition to its obligation under the other
subsections of this Section 7, the Company agrees to indemnify and hold harmless
the QIU, its officers and employees and each person, if any, who controls the
QIU within the meaning of the Securities Act or the Exchange Act from and
against any loss, claim, damage, liabilities or expense, as incurred, arising
out of or based upon the QIU's acting as a "qualified independent underwriter"
(within the meaning of Rule 2720 to the NASD's Conduct Rules) in connection with
the offering contemplated by this Agreement, and agrees to reimburse each such
indemnified person for any legal or other expense reasonably incurred by them in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense results from the gross negligence or
willful misconduct of the QIU.
(f) The obligations of the Issuers under this Section 7 shall be in
addition to any liability which the Issuers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter or the QIU within the meaning of the Act. The obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of each of the Issuers
(including any person who, with his consent, is named in the Registration
Statement as about to become a director of the Company) and to each person, if
any, who controls any Issuer within the meaning of the Act.
8. Defaulting Underwriters. (a) If any Underwriter shall default in its
obligation to purchase the Securities which it has agreed to purchase under the
Pricing Agreement relating to such Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not arrange for the
purchase of such Securities, then the Issuers shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Securities on such
terms. In the event that, within the respective prescribed periods, the
Representatives notify the Issuers that the Representatives have so arranged for
the purchase of such Securities, or the Issuers notify the Representatives that
they have so arranged for the purchase of such Securities, the Representatives,
the Trusts or the Company shall have the right to postpone the Closing Date for
such Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Final Prospectus as amended or supplemented, or in any other documents or
arrangements, and each of the Issuers agrees to file promptly any amendments to
the Registration Statement or the Final Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Securities.
39
(b) If, after giving effect to any arrangements for the purchase of the
Securities of any defaulting Underwriter or Underwriters by the Representatives
and the Issuers as provided in subsection (a) above, the aggregate number of
units of Securities that remains unpurchased does not exceed ten percent of the
number of units of Securities to be purchased on such Closing Date, then the
Issuers shall have the right to require each non-defaulting Underwriter to
purchase the aggregate amount of Securities (expressed as a number of Normal
Common Equity Units ) that such Underwriter agreed to purchase under the Pricing
Agreement relating to such Securities and, in addition, to require each
nondefaulting Underwriter to purchase its pro rata share (based on the aggregate
number of units of Securities that such Underwriter agreed to purchase under
such Pricing Agreement) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Issuers as provided in subsection (a) above, the aggregate number of
units of Securities that remains unpurchased exceeds ten percent of the
aggregate number of units of Securities as referred to in subsection (b) above,
or if none of the Issuers exercises its right described in subsection (b) above
to require non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Securities shall thereupon terminate, without liability on the part of any
nondefaulting Underwriter or the Issuers, except for the expenses to be borne by
the Issuers and the Underwriters as provided in Section 5 hereof and the
indemnity and contribution agreements in Section 7 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
9. Offering Restrictions. Each Underwriter acknowledges, represents and
agrees that:
(a) It has not offered, sold or delivered and it will not offer, sell or
deliver, any of the Securities, in or from any jurisdiction except under
circumstances that are reasonably designed to result in compliance with the
applicable securities laws and regulations thereof.
(b) In connection with the initial distribution of the Securities, (i) no
prospectus (including any amendment, supplement or replacement thereto) has been
prepared in connection with the offering of the Securities that has been
notified to or approved by the Belgian Banking, Finance and Insurance Commission
("Commission bancaire, financiere et des assurances"/"Commissie voor het Bank--,
Financie-- en Assurantiewezen") or mutually recognized in Belgium; (ii) it has
not offered or sold and will not offer or sell, directly or indirectly, the
Securities to the public in Belgium except to qualifying professional and
institutional investors ("investisseurs professionnels et
institutionnels"/"professionele en institutionele beleggers") or to persons who
each subscribe for a minimum of EUR 250,000 in the offer and are acting for
their own account; and (iii) it has not released, issued or distributed the
Final Prospectus, any other materials related to the offering or information
contained therein relating to the Securities or caused any such document or
information to be released, issued or distributed to the public in Belgium
except to qualifying professional and institutional investors ("investisseurs
professionnels et institutionnels"/"professionele en institutionele beleggers")
or to
40
persons who each subscribe for a minimum of EUR 250,000 in the Offer, acting for
their own account.
(c) In connection with the initial distribution of the Securities, (i) no
prospectus (including any amendment, supplement or replacement thereto) has been
prepared in connection with the offering of the Securities that has been
approved by the Autorite des marches financiers or by the competent authority of
another State that is a contracting party to the Agreement on the European
Economic Area that has been recognized in France; (ii) it has not offered or
sold and will not offer or sell, directly or indirectly, Securities to the
public in France except to qualified investors (investisseurs qualifies) and/or
to a limited circle of investors (cercle restreint d'investisseurs) acting for
their own account as defined in article L. 411-2 of the French Code Monetaire et
Financier and applicable regulations thereunder; (iii) it has not released,
issued or distributed the Final Prospectus, any prospectus supplement, or any
other materials related to the offering or information contained therein
relating to the Securities or caused any such document or information to be
released, issued or distributed to the public in France except to qualified
investors (investisseurs qualifies) and/or to a limited circle of investors
(cercle restreint d'investisseurs) mentioned in (ii) above; and (iv) the direct
or indirect resale to the public in France of any Securities acquired by any
qualified investors (investisseurs qualifies) and/or any investors belonging to
a limited circle of investors (cercle restreint d'investisseurs) may be made
only as provided by articles L. 412-1 and L. 621-8 of the French Code Monetaire
et Financier and applicable regulations thereunder.
(d) (i) It will not to offer or sell any Securities in the Federal
Republic of Germany other than in compliance with the applicable laws and
regulations of the Federal Republic of Germany governing the issue, offering and
sale of securities; (ii) no German sales prospectus (Verkaufsprospekt) under the
German Securities Sales Prospectus Act (Wertpapier-Verkaufsprospektgesetz) of
1990 (as amended) (the "Sales Prospectus Act") has been or will be published in
respect of the Securities; and (iii) any offering of the Securities in the
Federal Republic of Germany may be made only pursuant to Section 2 of the Sales
Prospectus Act.
(e) It will not offer or sell any Securities, directly or indirectly, in
Japan or to, or for the benefit of, any resident of Japan (which term as used
herein means any person resident in Japan, including any corporation or other
entity organized under the laws of Japan), or to others for re-offering or
resale, directly or indirectly, in Japan or to a resident of Japan, except
pursuant to an exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law and any other applicable laws,
regulations and ministerial guidelines of Japan.
(f) In connection with the initial distribution of the Securities, it will
not offer, sell, transfer or deliver the Securities to any individual or legal
entity in the Netherlands other than to individuals or legal entities who or
that trade or invest in securities in the conduct of their profession or trade,
which includes banks, securities intermediaries, insurance companies, pension
funds, other institutional investors and commercial enterprises that, as an
ancillary activity, regularly trade or invest in securities.
(g) In connection with the initial distribution of the Securities, (i) no
prospectus (including any amendment, supplement or replacement thereto) has been
prepared in connection
41
with the offering of the Securities that has been registered or approved by the
Swiss Federal Banking Commission or any other Swiss authority; (ii) it has not
offered or sold and will not offer or sell, directly or indirectly, the
Securities in any way that could constitute, in Switzerland, a public offering
within the meaning of Articles 1156 or 652a of the Swiss Code of Obligations;
and (iii) it has not released, issued or distributed the Final Prospectus, or
any other materials related to the offering or information contained therein
relating to the Securities, or caused any such document or information to be
released, issued or distributed in a way that could constitute a public offering
within the meaning of Articles 1156 or 652a of the Swiss Code of Obligations.
(h) (i) It has not offered or sold and, prior to the expiry of a period of
six months from the Closing Date, will not offer or sell Securities to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has only communicated and caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 ("FSMA")) received by it in connection with the
issue or sale of any Securities in circumstances in which section 21(1) of the
FSMA does not apply to the Company; and (iii) it has complied and will comply
with all applicable provisions of the FSMA with respect to anything done by it
in relation to the Securities in, from or otherwise involving the United
Kingdom.
10. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Issuers and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, any of
the Issuers or any officer, director, trustee or controlling person of the
Trusts or the Company and shall survive delivery of and payment for the
Securities.
11. Effect of Termination of Pricing Agreement or Nondelivery of
Securities. If any Pricing Agreement shall be terminated pursuant to Section 8
hereof, none of the Issuers shall then be under any liability to any Underwriter
with respect to the Securities covered by such Pricing Agreement except as
provided in Section 5 and Section 7 hereof; but, if for any other reason,
Securities are not delivered by or on behalf of the Issuers as provided herein,
the Issuers will, jointly and severally, reimburse the Underwriters through the
Representatives for all out-of-pocket expenses, including fees and disbursements
of counsel, reasonably incurred by the Underwriters in making preparations for
the purchase, sale and delivery of such Securities, but none of the Issuers
shall then be under any further liability to any Underwriter in respect of such
Securities except as provided in Section 5 and Section 7 hereof.
12. Reliance upon Representatives. In all dealings hereunder, the
Representatives shall act on behalf of the Underwriters of Securities and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such of the
Representatives, if any, as may be designated for such purpose in the applicable
Pricing Agreements.
42
13. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication; notices to the
Representatives shall be directed to the address of the Representatives as set
forth in the applicable Pricing Agreements with a copy to (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, attention of
▇▇▇▇▇ ▇▇▇▇▇, Esq.; if to the any of the Issuers shall be delivered or sent by
mail, telex or facsimile transmission to MetLife, Inc., ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof.
14. Successors and Assigns. This Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit of, the Underwriters, the
QIU, the Issuers, and, to the extent provided in Sections 7 and 10 hereof, the
officers and directors of the Issuers and Underwriters and each person who
controls any Issuer or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
15. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
16. Consent to Jurisdiction. Each of the Issuers agrees that any legal
suit, action or proceeding against it brought by any Underwriter or by any
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, arising out of or based
upon this Agreement or the transactions contemplated hereby may be instituted in
any state or federal court in the Borough of Manhattan, The City of New York,
New York, and, to the fullest extent permitted by applicable law, waives any
objection which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of such
courts in any suit, action or proceeding.
43
17. Counterparts. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
Very truly yours,
METLIFE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
METLIFE CAPITAL TRUST II
By: MetLife, Inc., as sponsor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
METLIFE CAPITAL TRUST III
By: MetLife, Inc., as sponsor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
44
Accepted as of the date hereof on behalf
of each of the Underwriters:
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
/s/ ▇▇▇▇▇▇▇, Sachs & Co.
-------------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
45
ANNEX I
PRICING AGREEMENT
Banc of America Securities LLC
▇▇▇▇▇▇▇, Sachs & Co.
As Representatives of the
several Underwriters
named in Schedule I hereto
c/o Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
MetLife, Inc., a Delaware corporation (the "Company"), MetLife Capital
Trust II, a statutory trust formed under the laws of Delaware (the "Series A
Trust") and MetLife Capital Trust III, a statutory trust formed under the laws
of Delaware (together with the Series A Trust, the "Trusts") propose, subject to
the terms and conditions stated herein (this "Agreement") and in the
Underwriting Agreement, dated June 15, 2005 (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the
"Underwritten Securities").
In addition, subject to the terms and conditions stated herein and in the
Underwriting Agreement, if the Underwriters sell more than the total number of
Underwritten Securities, the Underwriters shall have an option to purchase,
severally and not jointly, up to an additional [ ] Securities (the "Option
Securities", if any, together with the "Underwritten Securities, the
"Securities") from the Issuers to cover such sales. Said option may be exercised
in whole or in part at any time on or before the 30th day after the date of the
Final Prospectus upon written or facsimile notice to the Company setting forth
the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date (as defined
below). The number of Option Securities to be purchased by each Underwriter
shall be approximately in the same proportion as set forth in Schedule II
hereto. Any date on which Option Securities are purchased, if such date is not
the Closing Date, is referred to herein and in the Underwriting Agreement as a
"settlement date". If settlement for the Option Securities occurs after the
Closing Date, the Issuers will deliver to the Representatives on the settlement
date for the Option Securities, and the obligation of the Underwriters to
purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 of the Underwriting Agreement.
Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as
I-1
if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Agreement and the Closing Date, except that
each representation and warranty which refers to the Final Prospectus in Section
1 of the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the Final
Prospectus (as therein defined) and also a representation and warranty as of the
date of this Agreement in relation to the Final Prospectus as amended or
supplemented relating to the Securities which are the subject of this Agreement.
Each reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Securities pursuant to the Underwriting Agreement and the address of the
Representatives are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Base
Prospectus, as the case may be, relating to the Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the each of the Issuers
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Issuers, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the number of units of Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and each
of the Issuers. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
I-2
Very truly yours,
METLIFE, INC.
By:
---------------------------------
Name:
Title:
METLIFE CAPITAL TRUST II
By: MetLife, Inc., as sponsor
By:
---------------------------------
Name:
Title:
METLIFE CAPITAL TRUST III
By: MetLife, Inc., as sponsor
By:
---------------------------------
Name:
Title:
Accepted as of the date hereof on
behalf of each of the Underwriters:
Banc of America Securities LLC
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇▇, Sachs & Co.
------------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
SCHEDULE II
TO PRICING AGREEMENT
Underwriting Agreement, dated June 15, 2005
Registration Statement Nos. 333-124358, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇
Title, Purchase Price and Description of Securities:
TITLE: 6.375% Common Equity Units (the "Normal Common
Equity Units")
APPLICABLE SECURITIES AGREEMENTS:
Amended and Restated Declaration of Trust, to be dated
June 21, 2005, relating to the MetLife Capital Trust II
Amended and Restated Declaration of Trust, to be dated
June 21, 2005, relating to the MetLife Capital Trust III
Guarantee Agreement, to be dated June 21, 2005, between
the Company and ▇.▇. ▇▇▇▇▇▇ Trust Company, N.A. as
guarantee trustee of MetLife Capital Trust II
Guarantee Agreement, to be dated June 21, 2005, between
the Company and ▇.▇. ▇▇▇▇▇▇ Trust Company, N.A. as
guarantee trustee of MetLife Capital Trust III
Pledge Agreement, to be dated June 21, 2005, among the
Company, ▇▇ ▇▇▇▇▇▇ Chase Bank, National Association, as
collateral agent, custodial agent and securities
intermediary and ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association as stock purchase contract agent
Stock Purchase Contract Agreement, dated June 21, 205,
between the Company and ▇.▇. ▇▇▇▇▇▇ Trust Company,
National Association, as stock purchase contract agent
Subordinated Indenture, to be dated June 21, 2005,
between the Company and ▇.▇. ▇▇▇▇▇▇ Trust Company,
National Association, as trustee,
First Supplemental Indenture, to be dated June 21, 2005,
between the Company and ▇.▇. ▇▇▇▇▇▇ Trust Company,
National Association, as trustee, relating to Company's
Junior Subordinated Debt Securities, Series A
SII-1
Second Supplemental Indenture, to be dated June 21,
2005, between the Company and ▇.▇. ▇▇▇▇▇▇ Trust Company,
National Association, as trustee, relating to the
Company's Junior Subordinated Debt Securities, Series B
NUMBER OF NORMAL COMMON EQUITY UNITS: 72,000,000
ISSUE DATE: June 21, 2005
PAYMENT DATES: Quarterly on 15th of the month,
commencing August 15th, 2005
PRICE TO THE PUBLIC: $25.00 per Common Equity Unit
PURCHASE PRICE BY UNDERWRITERS: $24.34375 per Common
Equity Unit
TERMS OF THE SECURITIES: As set forth in the Final
Prospectus dated June 15, 2005
CLOSING DATE, TIME AND LOCATION: June 21, 2005; 10:00
a.m. (New York City time); ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
DESIGNATED REPRESENTATIVES: Banc of America Securities
LLC; ▇▇▇▇▇▇▇, Sachs & Co.
ADDRESSES FOR NOTICES, ETC.:
IF TO THE REPRESENTATIVES:
c/o Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SII-2
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
IF TO THE TRUSTS OR THE COMPANY:
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
SII-3
ANNEX II
[DELOITTE & TOUCHE LLP LETTER]
II-1
ANNEX III
[KPMG LLP LETTER]
III-1
