1
EXHIBIT 10.6
CREDIT SUISSE FIRST BOSTON (GUERNSEY BRANCH)
WINTERTHUR LIFE
April 3, 2000
MetLife, Inc.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Standstill Agreement
Ladies and Gentlemen:
Pursuant to a Stock Purchase Agreement, dated April 3, 2000, among
MetLife, Inc., a Delaware corporation (the "Company"), Metropolitan Life
Insurance Company, a life insurance company organized under the laws of New York
("MetLife"), and Credit Suisse First Boston, a Swiss corporation (through its
Guernsey Branch), and Winterthur Life, a Swiss corporation (together with all of
their current and future affiliates, "Purchaser") (the "Stock Purchase
Agreement"), the Company has agreed to sell to Purchaser or its permitted
assignees, and Purchaser has agreed to purchase from the Company, the Shares (as
defined in the Stock Purchase Agreement). For purposes of this Agreement,
"affiliate" shall mean a person or entity that directly or indirectly through
one or more intermediaries, controls, is controlled by, or is under common
control with, another person or entity.
Purchaser and the Company are entering into this Agreement to define
the future relationship between Purchaser and the Company and in consideration
of the mutual covenants contained herein.
2
1. Restrictions on Transfers; Registration Rights.
(a) Restrictions on Transfers. Purchaser agrees that, prior to
the first anniversary of the Closing (as defined in the Stock Purchase
Agreement), it will not, directly or indirectly, sell, transfer or
otherwise dispose of any interest in the Shares, provided that
Purchaser may transfer Shares (i) to any affiliate (as defined in Rule
144 of the Securities Act of 1933, as amended (the "Securities Act"))
of Purchaser that enters into a standstill agreement with the Company
containing terms and conditions substantially equivalent to those in
this Agreement, or (ii) pursuant to any tender offer or exchange offer
which is recommended by the Board of Directors of the Company. After
the first anniversary of the Closing and for the remaining term of this
Agreement, Purchaser may sell, transfer or otherwise dispose of any
interest in the Shares, provided that (x) such sale, unless it is made
in a registered public offering or pursuant to a tender or exchange
offer to the Company's stockholders, is not knowingly made to any
person or "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "1934 Act")) acquiring
all of Purchaser's Shares in the acquisition or that would, after
giving effect to its acquisition of such Shares, beneficially own or
have the right to acquire more than 4.9% of the Voting Securities (as
defined below) then outstanding, unless such person or group has
entered into a standstill agreement with the Company containing terms
and conditions substantially equivalent to those in this Agreement (it
being understood that Purchaser has no duty to inquire as to the
beneficial ownership of any such person or group when Purchaser sells
the Shares in a transaction on the New York Stock Exchange or any other
exchange on which the Shares are listed at the time), and (y) (i) such
sale is pursuant to an effective registration statement under the
Securities Act, (ii) such sale is made after the termination of sale
restrictions pursuant to Rule 144 of the Securities Act or any
successor to such rule or (iii) Purchaser shall have delivered to the
Company an opinion of counsel, which opinion and counsel shall be
reasonably satisfactory to the Company, to the effect that such sale is
exempt from the provisions of Section 5 of the Securities Act.
For purposes of this Agreement, the term "Voting Securities" shall
mean securities of the Company, including the Shares, with the power to vote
with respect to the election of directors generally, including any securities
that are convertible or exchangeable for Voting Securities, it being understood
that the number of Voting Securities outstanding as of any time of determination
shall be determined as though all such securities, whether or not in the money,
had been converted or exchanged, in accordance with their terms, into or for
Voting Securities immediately prior to the time of determination.
2
3
(b) Registration Rights.
(i) Required Registration. (A) At any time after the
first anniversary of the Closing, Purchaser shall have the right, by
written notice (the "Registration Notice") to the Company, to
require the Company to use reasonable efforts to register (the
"Required Registration") under the Securities Act all or any portion
of the Shares then owned by Purchaser (the "Registrable
Securities"), and the Company shall be obligated to register such
Registrable Securities. Purchaser shall not be entitled to exercise
more than one such right in any 12 month period or more than a total
of five such rights during the term of this Agreement.
Notwithstanding the foregoing, if, in addition to the Registrable
Securities, the Required Registration is to include shares to be
offered by the Company for its own account, shares of Trust
Beneficiaries (as defined in the Plan of Reorganization, dated
September 28, 1999, as amended, of MetLife (the "Plan")) having
registration rights pursuant to Section 3.3(c)(v) of the Plan or
shares of others persons with registration rights, and the Board of
Directors of the Company believes, based on advice of a nationally
recognized investment banking firm selected by the Company, that
including all such shares would be likely to have an adverse effect
upon the price, timing or distribution of the shares included in the
Required Registration, then only such number of shares, if any, as
the Board shall determine can be included without adversely
affecting the offering shall be included in the Required
Registration, and the shares to be included in the Required
Registration will be allocated in the following priority: (w) all
shares owned by such Trust Beneficiaries shall be included first,
(x) all shares of Purchaser and Banco Santander Central Hispano S.A.
(together with all of its current and future affiliates, the "Other
Private Placement Purchaser") shall be included second, in
proportion, as nearly as practicable, to the total number of shares
of Common Stock proposed to be offered by each of Purchaser and the
Other Private Placement Purchaser at the time of filing of the
registration statement for the registration, (y) all shares of
Common Stock of any other persons with registration rights shall be
included third, in proportion, as nearly as practicable, to the
total number of shares of Common Stock proposed to be offered by
each of them at the time of the filing of the registration
statement, and (z) all shares of the Company shall be included last.
Purchaser may elect that the offering of Registrable Securities
pursuant to this Section 1(b)(i) be in the form of an underwritten
public offering, in which case Purchaser shall select the managing
underwriters and any additional investment bankers and managers to
be used in connection with the offering, provided that such managing
underwriters and additional investment bankers and managers must be
reasonably satisfactory to the Company. In the event Purchaser is
not able to include all of the Shares Purchaser wishes to include in
any Required Registration due to the limitation described in the
immediately preceding sentence, Purchaser shall have the right to
one additional Required
3
4
Registration with respect to such Shares subject to the limitations
set forth in this Section 1(b)(i).
(B) Upon receipt of such Registration Notice, the
Company will, as promptly as practicable, prepare and file with the
Securities and Exchange Commission (the "SEC") and use its
reasonable efforts to cause to become effective promptly, and in any
event within 90 days from its receipt of the Registration Notice, a
registration statement under the Securities Act with respect to the
number of Registrable Securities specified in the Registration
Notice, and will use its reasonable efforts to cause such
registration statement to remain effective for such period of time
as shall be required to complete the distribution of Registrable
Securities contemplated thereby, but not for more than 120 days from
the effective date thereof, provided that the Company shall be
entitled to defer any such filing for a period of up to 180 days
from the date of Purchaser's Registration Notice if the Company
shall furnish Purchaser a certificate signed by its Chairman,
President and Chief Executive Officer, Chief Financial Officer or
Vice-Chairman stating that the filing of a registration statement at
such time would be detrimental to the Company due to the pendency of
a material acquisition or financing or for other reasonable cause.
(C) The Company will use its reasonable efforts to cause
to be filed as soon as practicable following the first anniversary
of the Closing, and in any event within 90 days thereafter, a shelf
registration statement on Form S-3 (or any successor form) providing
for the sale by Purchaser of all of the Registrable Securities and
to have such shelf registration statement declared effective by the
SEC. The Company will use its reasonable efforts to keep the shelf
registration statement continuously effective until the third
anniversary of the Closing or such shorter period that will
terminate when all of the Registrable Securities covered by the
shelf registration statement have been sold pursuant to the shelf
registration statement. After the shelf registration statement has
been declared effective, Purchaser will have the right to request,
subject to paragraph (A), an unlimited number of sales pursuant to
prospectuses or prospectus supplements under such shelf registration
statement (such requests will be in writing and given at least ten
business days prior to the proposed disposition and will state the
number of shares of Registrable Securities to be disposed of and the
intended method of disposition of such shares by Purchaser),
provided, however, that the Company shall be entitled to defer any
such sale for a period of up to 180 days from the date of the
Purchaser's written request therefore if the Company shall furnish
Purchaser a certificate signed by its Chairman, President and Chief
Executive Officer, Chief Financial Officer or Vice-Chairman stating
that an offering at such time would be detrimental to the Company
due to the pendency of a material acquisition or financing or for
other reasonable cause, and provided further that the Company will
not be required to permit sales pursuant to this paragraph (a) more
than twice in each calendar year and (b) unless Purchaser proposes
to dispose of outstanding Registrable Securities whose anticipated
aggregate offering price exceeds $50,000,000. Notwithstanding
anything to the contrary herein, an underwritten public offering by
Purchaser under such Form S-3 shall be deemed to be a Required
Registration and subject to the limitations set forth in paragraph
(A) on the number of such Required Registrations per year and in
total. Upon receipt of Purchaser's written request specified above,
the Company will use its reasonable efforts to prepare and file with
the SEC, prior to the date that the offering by Purchaser was
proposed to be commenced, a supplement or post-effective amendment
to the shelf registration statement or the related prospectus or any
document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such prospectus does not contain any
untrue statement of a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
4
5
(D) The Company will, if requested, prior to filing a
registration statement or prospectus or any amendment or supplement
thereto, furnish to Purchaser and each underwriter, if any, of the
Registrable Securities covered by such registration statement
copies of such registration statement as proposed to be filed, and
thereafter furnish to Purchaser and underwriter, if any, such
number of copies of such registration statement, each amendment or
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein), the prospectus
included in such registration statement (including each preliminary
prospectus) and such other documents as Purchaser or underwriter
may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by Purchaser.
(E) After the filing of the registration statement, the
Company will promptly notify Purchaser of any stop order issued or
threatened by the Commission and take all reasonable actions
required to prevent the entry of such stop order or to remove it if
entered.
(F) The Company will use its reasonable efforts to
register or qualify the Registrable Securities under such other
securities or blue sky laws of such jurisdictions in the United
States as any selling purchaser reasonably (in light of such
purchaser's intended plan of distribution) requests and cause such
Registrable Securities to be registered with or approved by such
other governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Company and do any and
all other acts and things reasonably requested by Purchaser to
enable Purchaser to consummate the disposition of the Registrable
Securities owned by Purchaser, provided that the Company will not
be required to qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
5
6
Section 1(b)(i)(F), subject itself to taxation in any such
jurisdiction or consent to general service of process in any such
jurisdiction.
(G) The Company will promptly notify Purchaser, at any
time up to 150 days after the effectiveness of the registration
statement therefore, or, in the case of an offering under a
registration statement on Form S-3 pursuant to paragraph (C), 150
days after the written notice from Purchaser requesting such
offering pursuant to paragraph (C), when a prospectus relating to an
offering of Registrable Securities pursuant to this Section 1(b) is
required to be delivered under the Securities Act, of the occurrence
of an event requiring the preparation of a supplement or amendment
to such prospectus so that, as thereafter delivered to Purchaser,
such prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading
and promptly make available to Purchaser any such supplement or
amendment.
(H) The Company will enter into customary agreements,
including an underwriting agreement that includes representations
and warranties, covenants and indemnification and contribution
provisions, to the extent applicable, substantially identical to
those contained in the underwriting agreements for the Company's
initial public offering, and take such other actions as are
reasonably requested by Purchaser in order to facilitate the
disposition of such Registrable Securities.
(I) The Company will make available for inspection by
any Purchaser, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant
or other professional retained by any Purchaser or underwriter
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise their due diligence responsibility under the
Securities Act, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement, subject
to reasonable arrangements to ensure that privileges are maintained.
Records which the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless the disclosure of
such Records is necessary to avoid or correct a misstatement or
omission in such registration statement or the release of such
Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction. Purchaser agrees that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it for any reason other than
such due diligence purposes unless and until such is made generally
available to the public. Purchaser further agrees that it will, upon
learning that
6
7
disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at
its expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential.
(J) The Company will furnish to each selling Purchaser
and to each underwriter, if any, a signed counterpart, addressed to
such selling Purchaser or underwriter, of an opinion or opinions of
counsel to the Company and a comfort letter or comfort letters from
the Company's independent public accountants, each, to the extent
applicable, in substantially identical form as those delivered in
connection with the Company's initial public offering or otherwise
in customary form and covering such matters of the type customarily
covered by opinions or comfort letters, as the case may be, as the
Purchaser or the managing underwriter therefore reasonably requests.
(K) The Company will otherwise use its reasonable
efforts to comply with all applicable rules and regulations of the
Securities Exchange Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months that begins within three months after
the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(L) The Company will use its reasonable efforts to cause
all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then
listed.
(M) The Company shall make its senior management
available for any road show recommended by the underwriters in
connection with not more than one demand registration each year, and
not more than five demand registrations in total, in each case
including any registration effected pursuant to a Form S-3.
(N) Anything in this Agreement to the contrary
notwithstanding, the Company shall not be obligated to file a
registration statement pursuant to this Section 1(b) with respect to
any Voting Securities or to include among the securities covered by
a registration statement any Voting Securities requested to be so
included pursuant to this Section 1(b) unless the Purchaser shall
have, on request of the Company, promptly furnished to the Company
in writing all information (x) with respect to Purchaser, such
Voting Securities owned by Purchaser and requested to be so included
and the transaction or transactions which Purchaser contemplates and
(y) which any law, rule or regulation requires to be disclosed
therein. Purchaser shall promptly furnish to the Company all
information required to be disclosed in order to correct any
misstatement or omission of a material fact contained in any
registration statement or prospectus, or any amendment or supplement
thereto, or any preliminary
7
8
prospectus, based upon any information previously supplied by
Purchaser to the Company.
(O) Purchaser agrees by acquisition of Registrable
Securities, if so required by the managing underwriter, not to sell,
make any short sale of, loan, grant any option for the purchase of,
effect any public sale or distribution of or otherwise dispose of
any securities of the Company of the same class of the Registrable
Securities, during the 15 days prior to and the 90 days after any
underwritten registration pursuant to this Section 1(b) has become
effective (or such shorter period as may be required by the
underwriter), except as part of such underwritten registration.
Notwithstanding the foregoing sentence, Purchaser shall be entitled
during the foregoing period to sell securities in a private sale.
(ii) Incidental Registration Rights. In addition to the
provisions contained in Section 1(b)(i), if the Company shall at any
time after the first anniversary of the Closing seek to register
under the Securities Act for sale to the public in an underwritten
offering any Voting Securities either for its own account or for the
account of any one or more securityholders (other than a
registration relating to Voting Securities issued or granted
pursuant to any employee or director stock-based plan or in
connection with an acquisition by the Company), and if the form of
registration statement proposed to be used may be used for the
registration of Registrable Securities, on each such occasion as it
shall furnish Purchaser with prior written notice thereof promptly,
but in any event less than 10 business days from the initial filing
date. At the written request of Purchaser, given within 5 days after
the receipt of such notice, to register any of Purchaser's
Registrable Securities, the Company will cause such Registrable
Securities, for which registration shall have been requested, to be
included in such registration statement so as to permit the sale or
other disposition by Purchaser as part of such underwritten public
offering (an "Incidental Registration"). Notwithstanding the
foregoing, if, in addition to the Registrable Securities, the
Incidental Registration is to include shares to be offered by the
Company for its own account, shares of Trust Beneficiaries having
registration rights pursuant to Section 3.3(c)(v) of the Plan or
shares of others persons with registration rights, and the Board of
Directors of the Company believes, based on advice of a nationally
recognized investment banking firm selected by the Company, that
including all such shares would be likely to have an adverse effect
upon the price, timing or distribution of the shares included in the
Incidental Registration, then only such number of shares, if any, as
the Board shall determine can be included without adversely
affecting the offering shall be included in the offering, and the
shares to be included in the Incidental Registration will be
allocated in the following priority: (x) all shares of the Company
and such Trust Beneficiaries shall be included first, (y) all shares
of Purchaser and the Other Private Placement Purchaser shall be
included
8
9
second, in proportion, as nearly as practicable, to the total number
of shares of Common Stock proposed to be offered by each of
Purchaser and the Other Private Placement Purchaser at the time of
filing of the registration statement for the registration, and (z)
all shares if Common Stock of any other persons with registration
rights shall be included third, in proportion, as nearly as
practicable, to the total number of shares of Common Stock proposed
to be offered by each of them at the time of the filing of the
registration statement.
(iii) Purchaser Obligation to Furnish Information. It
shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Section 1(b) with respect to the
Registrable Securities that Purchaser shall furnish to the Company
such information regarding itself and the intended method of
disposition of the Registrable Securities as shall be required to
effect the registration of such Registrable Securities under the
Securities Act.
(c) Expenses. All expenses incurred by the Company in
complying with Section 1(b), including any registration and filing
fees, fees and expenses of compliance with securities or blue sky
laws of the United States (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications
of the Registrable Securities), printing expenses, fees and
disbursements of counsel and independent public accountants for the
Company, fees of the National Association of Securities Dealers,
Inc., listing or quotation fees, internal expenses (including all
salaries and expenses of its officers and employees performing legal
and accounting duties), fees of transfer agents and registrars, and
the fees and expenses of counsel and accountants for Purchaser shall
be borne by the Company. Purchaser shall be responsible for all
underwriting fees, discounts or commissions and transfer taxes, with
respect to Registrable Securities.
(d) Rule 144. The Company will file any reports required
to be filed by it under the Securities Act and the 1934 Act and will
take such further action as Purchaser may reasonably request, all to
the extent required from time to time to enable Purchaser to sell
Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such Rule may be amended from time to
time, or (ii) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of Purchaser, the Company will deliver to
Purchaser a written statement as to whether it has complied with
such requirements.
9
10
2. Standstill Provisions. Purchaser agrees that, during the term of
this Agreement, without the Company's prior written consent, Purchaser will not:
(a) acquire, announce an intention to acquire, offer or
propose to acquire, or agree to acquire, directly or indirectly, by
purchase or otherwise, beneficial ownership of any Voting
Securities, or direct or indirect rights to options to acquire
(through purchase, exchange, conversion or otherwise) any Voting
Securities, if, immediately after any such acquisition, Purchaser
would beneficially own, in the aggregate, Voting Securities
representing (x) more than 4.9% of the outstanding Voting
Securities, or (y) more than 5.0% of the outstanding Voting
Securities, provided that approval beneficially to own such
percentage of Voting Securities is obtained from the New York
Superintendent of Insurance prior to such increase to 5%, except in
each case for any increase resulting from transactions in the
ordinary course of the business of Purchaser as underwriter,
broker/dealer, investment manager or investment adviser or from
ordinary trading activities, unless such transactions were made with
the purpose of changing or influencing the control of the Company;
(b) seek representation on the Board of Directors of the
Company or the removal of any Company Directors or a change in the
composition or size of the Board;
(c) make any statement or proposal, whether written or
oral, to the Board of Directors of the Company, or to any director,
officer or agent of the Company, or make any public announcement or
proposal whatsoever with respect to a merger or other business
combination, sale or transfer of assets, recapitalization, dividend,
share repurchase, liquidation or other extraordinary corporate
transaction with the Company or any other transaction which could
result in a change of control, solicit or encourage any other person
to make any such statement or proposal, or take any action which
might require the Company to make a public announcement regarding
the possibility of any transaction referred to in this paragraph (c)
or similar transaction, or advise, assist or encourage any other
persons in connection with the foregoing, except in the ordinary
course of its investment banking activities as financial advisor;
(d) make, or in any way participate, directly or
indirectly, in any "solicitation" of "proxies" (as such terms are
defined in Rule 14a-1 under the ▇▇▇▇ ▇▇▇) to vote any Voting
Securities, seek to advise, encourage or influence any person or
entity with respect to the voting of any Voting Securities, initiate
or propose any shareholder proposal or induce or attempt to induce
any other person to initiate any shareholder proposal, or execute
any written consent with respect to the
10
11
Company, except in the ordinary course of its investment banking
activities as financial advisor;
(e) deposit any Voting Securities into a voting trust or
subject any Voting Securities to any arrangement or agreement with
respect to the voting of any Voting Securities other than this
Agreement;
(f) form, join or in any way participate in a "group"
(within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with
respect to any Voting Securities, other than a group which Purchaser
is a member of as of the date hereof;
(g) otherwise act, alone or in concert with others, to
seek to exercise any control or influence over the management, Board
of Directors or policies of the Company;
(h) make a public request to the Company (or its
directors, officers, shareholders, employees or agents) to take any
action in respect of the foregoing matters; or
(i) disclose any intention, plan or arrangement
inconsistent with the foregoing.
Purchaser shall not, individually or acting in concert with the
Other Private Placement Purchaser, direct or cause the direction, or attempt to
direct or cause the direction of, the management or policies of any of the
Company, MetLife and any of their affiliates that are controlled insurers, or
otherwise exercise, or attempt to exercise, control over such companies or such
affiliates, whether directly or indirectly.
3. Specific Performance. Each of Purchaser and the Company
acknowledges that the other party would not have an adequate remedy at law for
money damages if any of the covenants or agreements of the other party in this
Agreement were not performed in accordance with its terms and therefore agrees
that the other party shall be entitled to specific enforcement of such covenants
or agreements and to injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
4. Legend. Each of the Company and Purchaser agrees that the
certificates for the Shares shall bear the following legend thereon, which
legend shall remain until the earliest of (a) the date the securities
represented by such certificates are transferred in accordance with the
provisions of this Agreement or (b) the termination of this Agreement pursuant
to Section 9(a) or (c) or the termination of this
11
12
Agreement (other than Sections 1(b), (c) and (d)) pursuant to Section 9(b), or
as otherwise agreed among the Company, MetLife and Purchaser:
THESE SECURITIES WERE SOLD IN A PRIVATE PLACEMENT, WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AND MAY BE OFFERED OR
SOLD ONLY IF REGISTERED UNDER THE SECURITIES ACT OF 1933 OR IF AN
EXEMPTION FROM REGISTRATION IS AVAILABLE. THESE SECURITIES ARE
SUBJECT TO THE PROVISIONS OF A STANDSTILL AGREEMENT DATED APRIL 3,
2000, BY AND BETWEEN THE ISSUER AND CREDIT SUISSE FIRST BOSTON
(THROUGH ITS GUERNSEY BRANCH) AND WINTERTHUR LIFE, AND MAY NOT BE
SOLD OR TRANSFERRED EXCEPT IN ACCORDANCE THEREWITH.
5. Entire Agreement. The Stock Purchase Agreement and this Agreement
contain the entire understandings of the parties with respect to the subject
matter of such agreements. This Agreement may not be amended or any provision
waived except by a writing signed, in the case of an amendment, by each party
hereto and, in the case of a waiver, by the party against whom the waiver is to
be effective. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof unless the other party is
materially prejudiced thereby, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights and remedies provided by law. At any
time from and including the date of this Agreement until the second anniversary
of the IPO, Purchaser and the Company shall not amend, directly or indirectly,
any provision of this Agreement without the prior approval of the New York
Superintendent of Insurance (the "Superintendent"). At any time from and
including the second anniversary of the IPO (as defined in the Stock Purchase
Agreement) until the end of the term of this Agreement, the Company shall notify
the New York Insurance Department (the "Department") of any amendment, direct or
indirect, to any provision, and the termination, of this Agreement. This
Agreement is not assignable by either of the parties without the prior written
consent of the other, except that (i) prior to Closing this Agreement may be
assigned by a Purchaser to any subsidiary of Purchaser, substantially all of the
Capital Stock of which is directly or indirectly owned by Purchaser, that is a
Qualified Institutional Buyer (as that term is defined in Rule 144A under the
Securities Act of 1933) or an accredited investor (as such term is defined under
Regulation D of the Act), provided that such assignee enters into an assumption
agreement reasonably satisfactory to the Company, and (ii) after Closing this
Agreement may be assigned by a Purchaser to one or more of its affiliates to
whom Shares are properly transferred in accordance with this Agreement,
12
13
provided that, no assignment pursuant to clause (i) or (ii) will relieve
Purchaser of its obligations hereunder. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns and upon transferees of Voting Securities who are affiliates
or associates of Purchaser.
6. Severability. If any terms, provision or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions and restrictions of this
Agreement shall remain in full force and effect, unless such action would
substantially impair the benefits to either party of the remaining provisions of
this Agreement.
7. Notices. Any notices and other communications required to be
given pursuant to this Agreement shall be deemed to have been duly given or made
as of the date delivered or mailed if delivered personally, mailed by registered
or certified mail (postage prepaid, return receipt requested), or delivered by
facsimile or by telex, as follows:
If to the Company:
MetLife, Inc.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
13
14
If to Purchaser:
Credit Suisse First Boston
Guernsey Branch
P.O. Box 589
Helvetia Court
South Esplanade
St. ▇▇▇▇▇ Port
Guernsey GY1 6LU
Channel Islands
Attention: Chief Financial Officer
Telecopier: 44-1481-711-940
14
15
Winterthur Life
▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier: ▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopier: ▇▇-▇▇-▇▇▇-▇▇▇▇
with copies to:
Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Purchaser shall notify the Company, and the Company shall notify the
Department, of (a) any transfer of the Shares prior to the first anniversary of
the Closing or any transfer thereafter requiring the entering into of a
standstill agreement pursuant to clause (x) of the proviso to the second
sentence of Section 1(a) and (b) any registration pursuant to Section 1(b). The
Company shall notify the Department of any consent requested or granted pursuant
to Section 2.
8. Effectiveness of Agreement. This Agreement shall become effective
only upon the execution and delivery of this Agreement by the parties hereto and
the occurrence of the Closing under the Stock Purchase Agreement.
9. Termination. This Agreement shall terminate upon the occurrence
of any of the following:
(a) the written agreement of the Company and Purchaser
to terminate this Agreement, provided that any termination prior to
the second anniversary of the Closing shall not be effective without
the approval of the Superintendent;
(b) the fifth anniversary of the date of the Closing,
except for Sections 1(b), (c) and (d), which shall continue in
effect indefinitely until terminated by any other provision of this
Section 9; or
15
16
(c) Purchaser shall cease to own Voting Securities other
than any Voting Securities acquired in the ordinary course of
business of Purchaser as underwriter, broker-dealer, investment
manager or investment adviser (unless such transactions were made
with the purpose or with the effect of changing or influencing the
control of the Company).
10. Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
11. Governing Law, etc. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflict of law provisions thereof. This Agreement may be executed in one
or more counterparts, which together will constitute a single agreement.
12. Jurisdiction. Except as otherwise expressly provided in this
Agreement, the parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be
brought in the United States District Court for the Southern District of New
York or, if such court shall not have jurisdiction over such suit, any New York
State court sitting in New York City, so long as such courts shall have subject
matter jurisdiction over such suit, action or proceeding, and that any cause of
action arising out of this Agreement shall be deemed to have arisen from a
transaction of business in the State of New York, and each of the parties hereby
irrevocably consents only with respect to such suits, actions or proceedings to
the jurisdiction of such courts (and of the appropriate appellate courts there
from) in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any such
court has been brought in an inconvenient forum. Without limiting the foregoing,
each party agrees that service of process on such party by hand delivery as
provided in Section 7 shall be deemed effective service of process on such
party.
13. Waiver of Jury Trial. Each of the parties hereto irrevocably
waives any and all right to trial by jury in any legal proceeding arising out of
or related to this Agreement or the transactions contemplated hereby.
14. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
16
17
If you are in agreement with the foregoing, please sign the accompanying copy of
this letter and return it to the Company, whereupon this letter shall be a
binding agreement between you and the Company.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
(through its Guernsey Branch)
By: /s/ ▇ ▇ ▇▇ ▇▇▇▇▇
------------------------------
Name: ▇ ▇ ▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
By: /s/ ▇ ▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇ ▇ ▇▇▇▇▇▇▇▇▇▇
Title: Deputy Head of Branch
WINTERTHUR LIFE
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Chief Investment Officer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Member of Management
Accepted and agreed as of the date first written above:
METLIFE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name:
Title:
