Exhibit 1.1
METLIFE, INC.
UNDERWRITING AGREEMENT
December 14, 2006
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time, MetLife, Inc., a Delaware corporation (the "COMPANY"),
proposes to enter into one or more Pricing Agreements (each a "PRICING
AGREEMENT") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (the "UNDERWRITERS" with respect to such
Pricing Agreement and the securities specified therein) the principal amount of
its securities or aggregate number of shares identified in Schedule I to the
applicable Pricing Agreement (the "SECURITIES" with respect to such Pricing
Agreement).
The terms and rights of any particular issuance of Securities shall be as
specified in the Pricing Agreement relating thereto and in or pursuant to the
Subordinated Indenture as specified in such Pricing Agreement, as supplemented
by the Third Supplemental Indenture, (the Subordinated Indenture as so
supplemented, the "INDENTURE"), or the Amended and Restated Certificate of
Incorporation of the Company (including the applicable Certificate of
Designation), as applicable (each, a "SECURITIES AGREEMENT"), and identified in
such Pricing Agreement.
Particular sales of Securities may be made from time to time to the
Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "REPRESENTATIVES"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Securities or the total number of shares, as the case may be, the initial public
offering price of such Securities, the purchase price to the Underwriters of
such Securities, the names of the Underwriters of such Securities, the names of
the Representatives of such Underwriters and the principal amount or number of
shares, as the case may be, of such Securities to be purchased by each
Underwriter. In addition, such Pricing Agreement shall set forth the date, time
and manner of delivery of such Securities and payment therefor. Such Pricing
Agreement shall also specify (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.
Notwithstanding anything to the contrary in this Underwriting Agreement,
the parties hereto hereby agree that any representation and/or warranty by any
of the parties hereto, concerning the Pricing Prospectus, the Final Term Sheet
and/or the General Disclosure Package (each, as defined below) shall be deemed
to have been made as of the Applicable Time (as defined below).
1. Representations and Warranties. The Company represents and warrants to
the Underwriters, and agrees with each of the Underwriters, as follows:
(a) The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (No. 333-124358) under the
Securities Act of 1933, as amended (the "ACT"), which has become effective, for
the registration under the Act of the Securities. The Company meets the
requirements for use of Form S-3 under the Act. No stop order suspending the
effectiveness of the registration statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied with.
The Company proposes to file with the Commission pursuant to Rule 424 under the
Act a supplement or supplements to the form of prospectus included in such
registration statement relating to the Securities and the plan of distribution
thereof. Such registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called the "REGISTRATION
STATEMENT"; the Registration Statement at the time it originally became
effective is herein called the "ORIGINAL REGISTRATION STATEMENT"; such
prospectus in the form in which it appears in the Original 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 a "PRELIMINARY PROSPECTUS." Any reference herein to
the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the
Pricing Prospectus (as defined below) or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), on or before the date of this Agreement, or the
issue date of the Base Prospectus, any Preliminary Prospectus, the Pricing
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, the
Pricing 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,
the Pricing 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
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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, the Pricing
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) (i) The Registration Statement, as amended as of any such time, and the
Final Prospectus, as amended or supplemented as of any such time, and, in the
case of Securities issued pursuant to an Indenture, such Indenture, will comply
in all material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), as applicable, and the respective rules thereunder;
(ii) Each Preliminary Prospectus complied when so filed in all material
respects with the rules and regulations of the Commission under the Act (the
"1933 ACT REGULATIONS");
(iii) The Registration Statement and the Final Prospectus do not and will
not, as of the applicable effective date as to each part of the Registration
Statement and as of the applicable filing date as to the Final Prospectus and
any amendment or supplement thereto, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; provided,
however, that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the trustee's
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act or (ii) the information contained in or omitted from the Registration
Statement, the Final Prospectus or the Preliminary Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with
information relating to such Underwriter furnished in writing to the Company by
any Underwriter expressly for use in the Registration Statement and the Final
Prospectus; and
(iv) As of the Applicable Time, the Issuer Free Writing Prospectus(es) (as
defined below) listed on Schedule 1(a) hereto, if any, the Pricing Prospectus
(as defined below), and the final term sheet relating to the securities set
forth on Annex IV (the "FINAL TERM SHEET"), all considered together
(collectively, the "GENERAL DISCLOSURE PACKAGE"), did not include any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(v) As of the Applicable Time, each Issuer Free Writing Prospectus listed
on Schedule 1(b) hereto, if any, did not conflict with the information contained
in the Registration Statement or the General Disclosure Package, and each such
Issuer Free Writing Prospectus, as supplemented by and taken together with the
General Disclosure Package and any other such Issuer Free Writing Prospectus, in
each case as of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; PROVIDED, HOWEVER, IT IS
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UNDERSTOOD AND AGREED THAT IN NO EVENT SHALL ANY SUCH ISSUER FREE WRITING
PROSPECTUS, INCLUDING BUT NOT LIMITED TO ANY ELECTRONIC ROADSHOW, BE LISTED ON
SCHEDULE 1(b) HERETO UNLESS THE COMPANY (I) HAS CONSENTED TO THE USE THEREOF AND
(II) SHALL HAVE APPROVED ITS CONTENTS BEFORE ANY SUCH USE, IN EACH CASE IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
As used in this subsection and elsewhere in this Agreement:
"APPLICABLE TIME" means 1:43 P.M. (Eastern Time) on December 15, 2006 or
such other time as agreed by the Company and the Representatives and stated in
the applicable Pricing Agreement.
"ISSUER FREE WRITING PROSPECTUS" means any "issuer free writing
prospectus," as defined in Rule 433 under the Act ("RULE 433"), relating to the
Securities.
"PRICING PROSPECTUS" means the Base Prospectus, as amended or supplemented
(including by any Preliminary Prospectus) immediately prior to the Applicable
Time.
At the time the Company or another offering participant first made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Act) of the
Securities, the Company was not an "ineligible issuer" as defined in Rule 405
under the Act.
The representations and warranties in this subsection shall not apply to
statements in or omissions from the Pricing Prospectus or any Issuer Free
Writing Prospectus made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter expressly for use
therein;
(c) Each document incorporated or deemed to be incorporated by reference in
the Registration Statement, the General Disclosure Package and the 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;
(d) Neither the Company nor any subsidiary of the Company that would
qualify as a "SIGNIFICANT SUBSIDIARY" of the Company under Regulation S-X (each,
a "SIGNIFICANT SUBSIDIARY") has sustained since the date of the latest audited
financial statements included or incorporated by reference in the General
Disclosure Package any loss or interference material to the business of the
Company and its subsidiaries considered as a whole, other than as described in
or contemplated by the General Disclosure Package, 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 General Disclosure
Package, otherwise than as described or contemplated in the General Disclosure
Package, 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
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outstanding on the date of the applicable Pricing Agreement) of the Company or
any Significant Subsidiary or any material increase in the long-term debt of the
Company or its subsidiaries, considered as a whole, or (iii) material adverse
change, or development involving a prospective material adverse change, in or
affecting the business, financial position, reserves, surplus, equity or results
of operations (in each case considered either on a statutory accounting or U.S.
generally accepted accounting principles ("GAAP") basis, as applicable) of the
Company and its subsidiaries considered as a whole. As of the date of this
Agreement, the Significant Subsidiaries are Metropolitan Life Insurance Company,
MetLife Insurance Company of Connecticut (formerly The Travelers Insurance
Company), Reinsurance Group of America, Incorporated and Metropolitan Property
and Casualty Insurance Company;
(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 General
Disclosure Package or such as would not have a material adverse effect on the
business, financial position, equity, reserves, surplus or results of operations
of the Company and its subsidiaries, considered as a whole ("MATERIAL ADVERSE
EFFECT"), and do not materially interfere with the use made and proposed to be
made of such property by the Company or any Significant Subsidiary, and any
material real property and material buildings held under lease by the Company or
any of its subsidiaries are held under valid, subsisting and enforceable leases
with such exceptions as are not material and do not materially interfere with
the use made and currently proposed to be made of such property and buildings by
the Company or any Significant Subsidiary;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the General Disclosure Package and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which its ownership
or lease of property or the conduct of its business requires such qualification
and good standing, except to the extent that the failure to be so qualified and
in good standing would not have a Material Adverse Effect; MetLife was duly
converted from a mutual life insurance company to a stock life insurance company
on April 7, 2000 in accordance with the Plan of Reorganization of MetLife under
Section 7312 of the New York Insurance Law; each Significant Subsidiary is
validly existing as a corporation and is in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as described in the General
Disclosure Package; and each Significant Subsidiary is duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification and good
standing, except to the extent that the failure to be so qualified and in good
standing would not have a Material Adverse Effect;
(g) The Company has the corporate power and authority to execute and
deliver this Agreement, the applicable Pricing Agreements, the applicable
Securities Agreements and the Securities and to consummate the transactions
contemplated hereby and thereby;
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(h) The Company has an authorized capitalization as set forth and described
in the General Disclosure Package, 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 General Disclosure
Package, 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 General Disclosure Package accurately and
fairly describe the information required to be shown with respect to such plans,
arrangements, options and rights; except as disclosed in the General Disclosure
Package (including, without limitation, that certain Investor Rights Agreement
by and among the Company, Citigroup, Inc. and Citigroup Insurance Holding
Corporation, dated as of July 1, 2005, as disclosed in the Company's Current
Report on Form 8-K, filed on July 8, 2005), there are no rights of any person,
corporation or other entity to require registration of any shares of common
stock or any other securities of the Company in connection with the filing of
the Registration Statement and the issuance and sale of the Securities to the
Underwriters pursuant to this Agreement and the applicable Pricing Agreements;
all of the issued shares of capital stock or other ownership interests of
MetLife have been duly and validly authorized and issued, are fully paid and
nonassessable and are owned directly or indirectly by the Company free and clear
of all liens, encumbrances, equities or claims;
(i) The Securities have been duly authorized and, when the Securities are
issued and delivered pursuant to this Agreement, the applicable Securities
Agreement or Securities Agreements and the applicable Pricing Agreements, such
Securities will have been duly executed, authenticated, issued and delivered
(and, in the case of Securities representing capital stock of the Company, will
be fully paid and nonassessable) and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, and will be entitled to the benefits provided by the applicable
Securities Agreements; such Securities Agreements have been duly authorized,
executed and delivered by the Company and, in the case of Securities issued
pursuant to an Indenture, such Indenture has been duly qualified under the Trust
Indenture Act and, on the Closing Date for any Securities, each Securities
Agreement will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, moratorium and
other similar laws relating to or affecting creditors' rights generally and to
general principles of equity; and the Securities will be substantially in the
form contemplated by the applicable Securities Agreements, and the Securities
and the applicable Securities Agreements conform in all material respects to the
descriptions thereof contained in the General Disclosure Package;
(j) Each Significant Subsidiary that is required to be organized or
licensed as an insurance company in its jurisdiction of incorporation (each, an
"INSURANCE SUBSIDIARY" and collectively, the "INSURANCE SUBSIDIARIES") is
licensed as an insurance company in its respective jurisdiction of incorporation
and is duly licensed or authorized as an insurer in each other jurisdiction
where it is required to be so licensed or authorized to conduct its business, in
each case with such exceptions as would not have, individually or in the
aggregate, a Material
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Adverse Effect; except as otherwise described in the General Disclosure Package,
each Insurance Subsidiary has all other approvals, orders, consents,
authorizations, licenses, certificates, permits, registrations and
qualifications (collectively, the "APPROVALS") of and from all insurance
regulatory authorities to conduct its business, with such exceptions as would
not have, individually or in the aggregate, a Material Adverse Effect; there is
no pending or, to the knowledge of the Company, threatened action, suit,
proceeding or investigation that could reasonably be expected to lead to any
revocation, termination or suspension of any such Approval, the revocation,
termination or suspension of which would have, individually or in the aggregate,
a Material Adverse Effect; and, to the knowledge of the Company, no insurance
regulatory agency or body has issued any order or decree impairing, restricting
or prohibiting the payment of dividends by any Insurance Subsidiary to its
parent which would have, individually or in the aggregate, a Material Adverse
Effect;
(k) The Company and each Significant Subsidiary has all necessary Approvals
of and from, and has made all filings, registrations and declarations
(collectively, the "FILINGS") with, all insurance regulatory authorities, all
Federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, which are necessary to own,
lease, license and use its properties and assets and to conduct its business in
the manner described in the General Disclosure Package, except where the failure
to have such Approvals or to make such Filings would not have, individually or
in the aggregate, a Material Adverse Effect; to the knowledge of the Company,
the Company and each Significant Subsidiary is in compliance with all applicable
laws, rules, regulations, orders, by-laws and similar requirements, including in
connection with registrations or memberships in self-regulatory organizations,
and all such Approvals and Filings are in full force and effect and neither the
Company nor any Significant Subsidiary has received any notice of any event,
inquiry, investigation or proceeding that would reasonably be expected to result
in the suspension, revocation or limitation of any such Approval or otherwise
impose any limitation on the conduct of the business of the Company or any
Significant Subsidiary, except as described in the General Disclosure Package or
except for any such non-compliance, suspension, revocation or limitation which
would not have, individually or in the aggregate, a Material Adverse Effect;
(l) Each Insurance Subsidiary is in compliance with and conducts its
businesses in conformity with all applicable insurance laws and regulations of
its respective jurisdiction of incorporation and the insurance laws and
regulations of other jurisdictions which are applicable to it, in each case with
such exceptions as would not have, individually or in the aggregate, a Material
Adverse Effect;
(m) Each Significant Subsidiary which is engaged in the business of acting
as a broker-dealer or an investment advisor (respectively, a "BROKER-DEALER
SUBSIDIARY" and an "INVESTMENT ADVISOR SUBSIDIARY") is duly licensed or
registered as a broker-dealer or investment advisor, as the case may be, in each
jurisdiction where it is required to be so licensed or registered to conduct its
business, in each case, with such exceptions as would not have, individually or
in the aggregate, a Material Adverse Effect; each Broker-Dealer Subsidiary and
each Investment Advisor Subsidiary has all other necessary Approvals of and from
all applicable regulatory authorities, including any self-regulatory
organization, to conduct its businesses, in each case with such exceptions, as
would not have, individually or in the aggregate, a Material Adverse Effect;
except as otherwise described in the General Disclosure Package, none of the
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Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries has received any
notification from any applicable regulatory authority to the effect that any
additional Approvals from such regulatory authority are needed to be obtained by
such subsidiary in any case where it could be reasonably expected that (x) any
of the Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries would in
fact be required either to obtain any such additional Approvals or cease or
otherwise limit engaging in certain business and (y) the failure to have such
Approvals or limiting such business would have a Material Adverse Effect; and
each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary is in
compliance with the requirements of the broker-dealer and investment advisor
laws and regulations of each jurisdiction which are applicable to such
subsidiary, and has filed all notices, reports, documents or other information
required to be filed thereunder, in each case with such exceptions as would not
have, individually or in the aggregate, a Material Adverse Effect;
(n) The issue and sale of the Securities pursuant to any Pricing Agreement,
and compliance by the Company with all of the provisions of the Securities, the
applicable Securities Agreements, this Agreement and any Pricing Agreement, and
the consummation of the transactions herein and therein contemplated, will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, or other agreement or instrument to which the Company or
any Significant Subsidiary is a party or by which the Company or any Significant
Subsidiary is bound or to which any of the property or assets of the Company or
any Significant Subsidiary is subject, or which affects the validity,
performance or consummation of the transactions contemplated by this Agreement,
nor will such action result in any violation of any statute or any order, rule
or regulation of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or any
Significant Subsidiary or any of their properties, in each case other than such
breaches, conflicts, violations, or defaults which individually or in the
aggregate, would not have a Material Adverse Effect and would not adversely
affect the validity or performance of the Company's obligations under the
Securities, the applicable Securities Agreements, this Agreement and any Pricing
Agreement; nor will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of the Company or any Significant
Subsidiary; and no Approval of or Filing with any such court or insurance
regulatory authority or other governmental agency or body is required for the
issue or sale of the Securities, except (i) the registration under the Act of
the Securities, and (ii) such Approvals or Filings as may be required under the
Trust Indenture Act or state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(o) Other than as set forth in the General Disclosure Package, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is subject, challenging the transactions contemplated by this
Agreement and the applicable Pricing Agreements or which, if determined
adversely to the Company or its subsidiaries, could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect or would
materially and adversely affect the ability of the Company to perform its
obligations under the Securities Agreements or this Agreement; and, to the
knowledge of the Company, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others other than as set forth in the
General Disclosure Package;
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(p) Neither the Company nor any Significant Subsidiary is in violation of
any of its certificate of incorporation or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it is bound or
to which any of its property or assets is subject, which violation or default
would have, individually or in the aggregate, a Material Adverse Effect;
(q) The statements set forth in the Pricing Prospectus and the Final
Prospectus under the captions "Description of the Junior Subordinated
Debentures" and "Description of Replacement Capital Covenant" insofar as they
purport to constitute a summary of the terms of the Securities, and 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 2005 Annual Report on Form 10-K and the
Company's Quarterly Report on Form 10-Q for the nine months ended September 30,
2006, in each case as updated by the General Disclosure Package and the Final
Prospectus, insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete in all material
respects;
(r) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement, the General Disclosure Package, 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, any unaudited pro forma condensed consolidated financial information,
together with the related schedules and notes, included or incorporated by
reference in the Registration Statement, the General Disclosure Package, the
Final Prospectus and any Preliminary Prospectus shall not be deemed the
financial statements of the Company and its consolidated subsidiaries); any pro
forma consolidated statement of income and any pro forma consolidated balance
sheet and the related notes thereto set forth in the Registration Statement, the
General Disclosure Package have been prepared in all material respects in
accordance with the applicable requirements of Rule 11-02 of Regulation S-X
promulgated under the Exchange Act, have been compiled on the pro forma basis
described therein, and the assumptions used in the preparation thereof were
reasonable at the time made and the adjustments used therein are based upon good
faith estimates and assumptions believed by the Company to be reasonable at the
time made;
(s) Deloitte & Touche LLP, which has audited certain consolidated financial
statements of the Company and its subsidiaries, is an independent registered
public accounting firm as required by the Act and the rules and regulations of
the Commission thereunder;
(t) Neither the Company nor any Significant Subsidiary is, or after giving
effect to the issue and sale of the Securities pursuant to any Pricing Agreement
will be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT"), and the rules
and regulations thereunder, although certain
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separate accounts of MetLife and of certain Insurance Subsidiaries are required
to register as investment companies under the Investment Company Act;
(u) This Agreement and the applicable Pricing Agreements with respect to
the applicable Securities have been duly authorized, executed and delivered by
the Company;
(v) There are no contracts or documents which are required to be described
in the General Disclosure Package or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so described and
filed as required;
(w) None of the Company or its subsidiaries or, to the best of their
knowledge, any of their directors, officers or affiliates, has taken or will
take, directly or indirectly, any action designed to, or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the Securities in violation of Regulation M under the Exchange Act;
(x) The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under 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 2005 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;
(y) The Company and its consolidated subsidiaries employ disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under the
Exchange Act) that are designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission's rules and forms, and is accumulated and
communicated to the Company's management, including its principal executive
officer or officers and principal financial officer or officers, as appropriate,
to allow timely decisions regarding disclosure; and
(z) The Registration Statement is not the subject of a pending proceeding
or examination under Section 8(d) or 8(e) of the Act, and the Company is not the
subject of a pending proceeding under Section 8A of the Act in connection with
the offering of the Securities.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties set forth herein, the Company agrees, as
of the date hereof and as of the Applicable Time, to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, as of the date hereof
and as of the Applicable Time, to purchase from the Company, at the purchase
price set forth in Schedule II to the applicable Pricing Agreement the principal
amount or number of shares, as the case may be, of the Securities set forth
opposite such Underwriter's name in Schedule I to the applicable Pricing
Agreement.
3. Delivery and Payment. Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such
10
authorized denominations and registered in such names as the Representatives may
request upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter at the office, on the date and at the time specified in the
applicable Pricing Agreement (or such later date not later than five business
days after such specified date as the Representatives shall designate), which
date and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of delivery and
payment for the Securities being herein called the "CLOSING DATE"). Delivery of
the Securities shall be made to the Underwriters for the respective accounts of
the several Underwriters against payment by the several Representatives of the
purchase price thereof by wire transfer of Federal (same-day) funds to the
account specified by the Company or as otherwise set forth in the applicable
Pricing Agreement.
4. Company Covenants. The Company agrees with each of the Underwriters of
any Securities:
(a) To prepare the Final Prospectus as amended and supplemented in relation
to the applicable Securities in a form approved by the Representatives and to
file timely such Final Prospectus pursuant to Rule 424(b) under the Act; to make
no further amendment or any supplement to the Registration Statement or Final
Prospectus as amended or supplemented after the date of the Pricing Agreement
relating to the applicable Securities and prior to the Closing Date for such
Securities unless the Representatives for such Securities shall have had a
reasonable opportunity to review and comment upon any such amendment or
supplement prior to any filing thereof; to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Final Prospectus or any amended Final Prospectus has been filed and to
furnish the Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities and, during such same
period, to advise the Representatives, promptly after it receives notice
thereof, of (i) the issuance by the Commission of any stop order or of any order
preventing or suspending the use of the Final Prospectus, (ii) the suspension of
the qualification of such Securities for offering or sale in any jurisdiction or
of the initiation or threatening of any proceeding for any such purpose, or
(iii) any request by the Commission for the amending or supplementing of the
Registration Statement or Final Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of the Final Prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) To give the Representatives notice of any filings made pursuant to the
Exchange Act or the regulations of the Commission thereunder within forty-eight
hours prior to the Applicable Time; to give the Representatives notice of its
intention to make any such filing from the Applicable Time to the Closing Time
and to furnish the Representatives with copies of any such documents a
reasonable amount of time prior to such proposed filing. The Company will
prepare the Final Term Sheet and shall file such Final Term Sheet as an Issuer
Free Writing Prospectus prior to the close of business two business days after
the date hereof; provided that the Company shall furnish the Representatives
with copies of any such Final Term Sheet a
11
reasonable amount of time prior to such proposed filing and will not use or file
any such document to which the Representatives or counsel to the Underwriters
shall object;
(c) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities for offering and sale under
the securities laws of such jurisdictions as the Representatives may reasonably
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for so long as may be necessary to
complete the distribution of such Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation,
to file a general consent to service of process in any jurisdiction or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise subject;
(d) To furnish to the Representatives a copy of each proposed Issuer Free
Writing Prospectus prepared by or on behalf of, used by, or referred to by the
Company and not to use or refer to any proposed Issuer Free Writing Prospectus
to which the Representatives reasonably object; if at any time following
issuance of an Issuer Free Writing Prospectus there occurred or occurs an event
or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration
Statement, the Statutory Prospectus, the Prospectus or any Preliminary
Prospectus or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, to promptly notify the Representatives and, if
requested by the Representatives, to promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission; provided, however, that this covenant
shall not apply to any statements or omissions in an Issuer Free Writing
Prospectus made in reliance upon and in conformity with information furnished in
writing to the Company by any Underwriter expressly for use therein;
(e) To furnish the Underwriters with copies of any Issuer Free Writing
Prospectus or the Final Prospectus 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 any
Issuer Free Writing Prospectus or 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 Issuer Free
Writing Prospectus or the Prospectus were delivered, not misleading, or, if for
any other reason it shall be necessary during such period to amend or supplement
any Issuer Free Writing Prospectus or the Final Prospectus or to file under the
Exchange Act any document incorporated by reference in any Issuer Free Writing
Prospectus or 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 Issuer Free Writing Prospectus or a supplement
to the Final Prospectus which will correct such statement or omission or effect
such compliance; and any Issuer Free Writing Prospectus and the Final Prospectus
and any amendments or supplements thereto furnished to the Representatives shall
be identical to the electronically
12
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T;
(f) 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);
(g) During the period beginning from the date of the Pricing Agreement for
any Securities and continuing to and including the Closing Date for such
Securities, not to offer, sell, contract to offer or sell or otherwise dispose
of any debt securities of the Company having pricing characteristics similar to
the Securities exceeding an aggregate principal amount of $3 billion less the
gross proceeds from the sale of the Securities without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld;
(h) 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(h); and
(i) The Company agrees that, unless it obtains the prior consent of the
Representatives, and each Underwriter represents and agrees that, unless it
obtains the prior consent of the Company and the Representatives, it has not
made and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus (other than, for the avoidance of
doubt, the Final Term Sheet filed pursuant to Section 4(b) hereto). Each
Underwriter agrees, unless it obtains the prior consent of the Company and the
Representatives, not to take any action that would result in the Company being
required to file with the Commission under Rule 433(d) under the Act a free
writing prospectus prepared by or on behalf of such Underwriter that otherwise
would not be required to be filed by the Company thereunder but for the action
of such Underwriter (other than, for the avoidance of doubt, the Final Term
Sheet filed pursuant to Section 4(b) hereto). Any such Issuer Free Writing
Prospectus, the use of which has been consented to by the Company and the
Representatives, is listed on Schedule 1 hereto.
5. Fees and Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of counsel and accountants to the Company
in connection with the registration of the Securities under the Act and all
other expenses in connection with the
13
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Final Prospectus and any
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
this Agreement, any Pricing Agreement, any Securities Agreement, any Agreement
among Underwriters, any Blue Sky Survey and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for offering and
sale under state securities laws and insurance securities laws as provided in
Section 4(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky Survey; (iv) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the NASD of the terms of the sale of the Securities; (v) any
fees charged by securities rating services for rating the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of any trustee,
paying agent or transfer agent and the fees and disbursements of counsel for any
such trustee, paying agent or transfer agent in connection with a Securities
Agreement and the Securities issued pursuant to any Securities Agreement; (viii)
any travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings with
prospective purchasers of the Securities; and (ix) all other costs and expenses
incident to the performance of the obligations of the Company hereunder which
are not otherwise specifically provided for in this Section. Except as provided
in this Section, and Sections 7 and 10 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Securities by them and any advertising
expenses connected with any offers of the Securities that they may make.
6. Conditions to Underwriters' Obligations. The obligations of the
Underwriters of any Securities under the Pricing Agreement relating to such
Securities shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company herein or in
certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof are, at and as of the Closing Date
true and correct, the condition that the Company shall have performed all of its
obligations hereunder and under the Pricing Agreement relating to such
Securities to be performed at or before the Closing Date, and the following
additional conditions.
(a) The Final Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act 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) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters,
shall have furnished to the Underwriters such written opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company, the
validity of the Securities being delivered on 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
14
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 substantially in the form attached hereto as Annex
V;
(d) The Company will furnish the Representatives with such conformed copies
of such opinions, certificates, letters and documents as the Representatives
reasonably request;
(e) (i) On the date hereof, Deloitte & Touche LLP shall have furnished to
the Representatives a letter, dated the date hereof, 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 and (ii) on the Closing Date for the applicable Securities,
Deloitte & Touche LLP shall have furnished to the Representatives a letter,
dated the date of delivery thereof, in form and substance reasonably
satisfactory to you, that reaffirms the statements made in the letter furnished
pursuant to subclause (i) of that section, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Date;
(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 2005 Annual
Report on Form 10-K and the Company's Quarterly Report on Form 10-Q for the nine
months ended September 30, 2006 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) Neither the Company nor any Significant Subsidiary shall have sustained
(i) since the date of the latest audited financial statements included or
incorporated by reference in the General Disclosure Package any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the General Disclosure Package and (ii) since the respective
dates as of which information is given in the General Disclosure Package, there
shall not have been any change in the surplus of MetLife or the capital stock of
the Company or any increase in the long-term debt of the Company and its
respective subsidiaries considered as a whole, or any change, or any development
involving a prospective change, in or affecting the business, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries considered as a whole, otherwise than as set forth or contemplated
in the General Disclosure Package, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to proceed with
the offering or the delivery of the applicable Securities on the terms and in
the manner contemplated in the Final Prospectus;
(h) At or after the Applicable Time (i) no downgrading shall have occurred
in the rating accorded the debt securities of the Company or any Significant
Subsidiary or the financial
15
strength or claims paying ability of the Company or any Significant Subsidiary
by A.M. Best & Co. or any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g) (2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any debt security or the financial strength or the
claims paying ability of the Company or any Significant Subsidiary, the effect
of which, in any such case described in clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the applicable
Securities on the terms and in the manner contemplated in the Prospectus;
(i) At or after the Applicable Time, there shall not have occurred any of
the following: (i) a change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the reasonable judgment of the Representatives, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
applicable Securities, whether in the primary market or in respect of dealings
in the secondary market; (ii) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (iii) a suspension or
material limitation in trading in the Company's securities on the New York Stock
Exchange; (iv) a suspension or material limitation in clearing and/or settlement
in securities generally; (v) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or (vi) the
material outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war (including
without limitation as a result of an act of terrorism) if the effect of any such
event specified in this clause (vi) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the offering or the delivery of
the Securities being delivered on the Closing Date on the terms and in the
manner contemplated in the Prospectus;
(j) The Company shall have complied with any request by the Representatives
with respect to the furnishing of copies of the Final Prospectus in compliance
with the provisions of Section 4(e) hereof;
(k) At the Closing Date, the Representatives shall have received a
certificate of the Company, dated as of the Closing Date, to the effect that (i)
the representations and warranties of the Company contained in Section 1 hereof
are true and correct in all respects with the same force and effect as though
expressly made at and as of Closing Date and (ii) the Company has complied in
all respects with all agreements and all conditions on its part to be performed
under this Agreement at or prior to the Closing Date;
(l) Debevoise & ▇▇▇▇▇▇▇▇ LLP 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 the
discussion contained in the Final Prospectus under the caption "Material United
States Federal Income Tax Considerations" constitutes in all material respects
(subject to the limitations and qualifications set forth therein) a fair and
accurate summary of the material United States federal income tax consequences
of the ownership and disposition of the Securities; and
16
(m) LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, shall have
furnished to the Underwriters their written opinion, dated the Closing Date, in
form and substance substantially in the form attached hereto as Annex VI.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in (i) the Registration Statement
or any amendment or supplement (when considered together with the document to
which such supplement relates) thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) any Preliminary Prospectus, Pricing Prospectus, any Issuer Free Writing
Prospectus set forth on Schedule 1(a) or 1(b) attached hereto (each, a "COVERED
ISSUER FREE WRITING PROSPECTUS") or the Final Prospectus or any amendment or
supplement (when considered together with the document to which such supplement
relates) thereto, or any "issuer information" filed or required to be filed
pursuant to Rule 433(d) under the Act, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability (or action in respect thereof) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any Covered Issuer Free Writing Prospectus,
Pricing Prospectus, the Registration Statement or the Final Prospectus, 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 therein.
(b) Each Underwriter will, severally and not jointly, indemnify and hold
harmless the Company, its directors and officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities (or actions in respect thereof) to which the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any Covered Issuer Free Writing
Prospectus, Pricing Prospectus, the Registration Statement, or the Final
Prospectus, 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
17
omission was made in any Preliminary Prospectus, any Covered Issuer Free Writing
Prospectus, Pricing Prospectus, the Registration Statement, the Final Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; the omission so to notify the indemnifying party shall
relieve it from any liability which it may have to any indemnified party under
such subsection, to the extent the indemnifying party is actually prejudiced by
such omission. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party or any other indemnified
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation, unless (i) the indemnifying party and
such indemnified party shall have mutually agreed to the contrary, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to such indemnified party or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
indemnifying party and such indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. No indemnifying party shall, without the prior written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party. In no event shall the indemnifying party be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same allegations or circumstances.
(d) If the indemnification provided for in this Section 7 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, other than due to the express
provisions thereof, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or
18
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the applicable Securities to which any such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the applicable
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Final Prospectus
relating to the applicable Securities. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of the applicable Securities in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations with
respect to such Securities and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act. The obligations of the Underwriters
under this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his consent, is named in the Registration Statement as about to become
a director of the Company) and to each person, if any, who controls the Company
within the meaning of the Act.
19
8. Defaulting Underwriters. (a) If any Underwriter shall default in its
obligation to purchase the Securities which it has agreed to purchase under the
Pricing Agreement relating to such Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Securities on such
terms. In the event that, within the respective prescribed periods, the
Representatives notify the Company that the Representatives have so arranged for
the purchase of such Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Securities, the Representatives
or the Company shall have the right to postpone the Closing Date for such
Securities for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement, the General
Disclosure Package, or the Final Prospectus as amended or supplemented, or in
any other documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement, the General Disclosure Package, or the
Final Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of any defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate number of
shares of such Securities or the aggregate principal amount of such Securities,
as applicable, which remains unpurchased does not exceed ten percent of the
aggregate number of shares of such Securities or the aggregate principal amount
of the Securities, as applicable, to be purchased on such Closing Date, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the aggregate number of shares of such Securities or the aggregate
principal amount of Securities, as applicable, which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Securities and, in
addition, to require each nondefaulting Underwriter to purchase its pro rata
share (based on the aggregate number of shares of such Securities or the
aggregate principal amount of Securities, as applicable, which such Underwriter
agreed to purchase under such Pricing Agreement) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate number of
shares of such Securities or the aggregate principal amount of such Securities,
as applicable, which remains unpurchased exceeds ten percent of the aggregate
number of shares of such Securities or the aggregate principal amount of such
Securities, as applicable, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Securities shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 5 hereof and the
indemnity and contribution
20
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 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. In particular, each
Underwriter acknowledges, represents and agrees as set forth in Annex III to
this Agreement.
10. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, the
Company or any officer or director or controlling person of the Company and
shall survive delivery of and payment for the Securities.
11. Effect of Termination of Pricing Agreement or Nondelivery of
Securities. If any Pricing Agreement shall be terminated pursuant to Section 8
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Securities covered by such Pricing Agreement except as
provided in Section 5 and Section 7 hereof; but, if for any other reason,
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Securities, but the Company shall then be under no further
liability to any Underwriter in respect of such Securities except as provided in
Section 5 and Section 7 hereof.
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.
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) Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.; if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to MetLife, Inc., ▇▇-▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer with a copy
to LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
attention ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. and ▇▇▇▇▇▇▇▇ Nicenko, Esq. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof.
21
14. Successors and Assigns. This Agreement and each Pricing Agreement shall
be binding upon, and inure solely to the benefit of, the Underwriters, the
Company, and, to the extent provided in Sections 7 and 9 hereof, the officers
and directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
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. The Company agrees that any legal suit, action
or proceeding against the Company brought by any Underwriter or by any person,
if any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, arising out of or based upon
this Agreement or the transactions contemplated hereby may be instituted in any
state or federal court in the Borough of Manhattan, The City of New York, New
York, and, to the fullest extent permitted by applicable law, waives any
objection which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of such
courts in any suit, action or proceeding.
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.
18. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this
Agreement, including the determination of the public offering price of the
Securities and any related discounts and commissions, is an arm's-length
commercial transaction between the Company, on the one hand, and the several
Underwriters, on the other hand, (b) in connection with any offering
contemplated by this Agreement and any Pricing Agreement and the process leading
to any such transaction each Underwriter is and has been acting solely as a
principal and is not the agent or fiduciary of the Company, or its stockholders,
creditors, employees or any other party, (c) no Underwriter has assumed or will
assume an advisory or fiduciary responsibility in favor of the Company with
respect to any such offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company on other matters) and no Underwriter has any obligation to the
Company with respect to such offering contemplated hereby except the obligations
expressly set forth in this Agreement and any relevant Pricing Agreement, (d)
the Underwriters and their respective affiliates may be engaged in a broad range
of transactions that involve interests that differ from those of the Company,
(e) the Company agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto and (f) the
22
Underwriters have not provided any legal, accounting, regulatory or tax advice
with respect to the offering contemplated hereby and the Company has consulted
its own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
19. Entire Agreement. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the
Underwriters, or any of them, with respect to the subject matter hereof.
20. Waiver of Jury Trial. The Company and each of the Underwriters hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
23
Very truly yours,
METLIFE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice-President and
Treasurer
Accepted as of the date hereof on
behalf of each of the Underwriters:
▇▇▇▇▇▇▇, SACHS & CO.
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
-------------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
HSBC SECURITIES (USA) INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
SCHEDULE 1
TO UNDERWRITING AGREEMENT
1(a) Issuer Free Writing Prospectuses included in the General Disclosure
Package:
A. Final Term Sheet
1(b) Issuer Free Writing Prospectuses not included in the General Disclosure
Package
ANNEX I
PRICING AGREEMENT
December 14, 2006
▇▇▇▇▇▇▇, Sachs & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
HSBC Securities (USA) Inc.
As Representatives of the
several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
Ladies and Gentlemen:
MetLife, Inc., a Delaware corporation (the "COMPANY"), proposes, subject to
the terms and conditions stated herein (this "AGREEMENT") and in the
Underwriting Agreement, dated December 14, 2006 (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").
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Agreement and the Closing Date.
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.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
I-1
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
METLIFE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
I-2
Accepted as of the date hereof
on behalf of each of the Underwriters:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
-------------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
HSBC SECURITIES (USA) INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
I-3
SCHEDULE I
TO PRICING AGREEMENT
PRINCIPAL AMOUNT OF
THE SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ --------------------
_________
Total ......
SI-1
SCHEDULE II
TO PRICING AGREEMENT
Underwriting Agreement, dated December 14, 2006
Registration Statement No. 333-124358
TITLE, PURCHASE PRICE AND DESCRIPTION OF SECURITIES:
TITLE: _________________________________________________________________________
APPLICABLE SECURITIES AGREEMENTS: ______________________________________________
AGGREGATE PRINCIPAL AMOUNT OF UNDERWRITTEN SECURITIES: _________________________
ISSUE DATE: ____________________________________________________________________
TERM: __________________________________________________________________________
PAYMENT DATES: _________________________________________________________________
PRICE TO THE PUBLIC: ___________________________________________________________
SII-1
PURCHASE PRICE BY UNDERWRITERS: ________________________________________________
TERMS OF THE SECURITIES: _______________________________________________________
CLOSING DATE, TIME AND LOCATION: _______________________________________________
DESIGNATED REPRESENTATIVES:
▇▇▇▇▇▇▇, Sachs & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
HSBC Securities (USA) Inc.
ADDRESSES FOR NOTICES, ETC.:
IF TO THE REPRESENTATIVES: _____________________________________________________
IF TO THE COMPANY: _____________________________________________________________
SII-2
ANNEX II
[DELOITTE & TOUCHE LLP LETTER]
II-1
ANNEX III
OFFERING RESTRICTIONS
III-1
ANNEX IV
FINAL TERM SHEET
IV-1
ANNEX V
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇' OPINION
V-1
ANNEX VI
LEBOEUF, LAMB, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP OPINION
VI-1