<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
November 23, 1999
REINSURANCE GROUP OF AMERICA, INCORPORATED
(Exact name of registrant as specified in its charter)
Missouri
(State or other jurisdiction of incorporation)
1-11848 43-1627032
------- ----------
(Commission File Number) (I.R.S. Employer Identification No.)
1370 Timberlake Manor Parkway, Chesterfield, Missouri 63017-6039
(Address of principal executive offices) (zip code)
(636) 736-7000
(Registrant's telephone number, including area code)
<PAGE> 2
ITEM 5. OTHER EVENTS.
On November 23, 1999, Reinsurance Group of America, Incorporated (the
"Company") completed a private placement of securities in which the Company sold
4,784,689 shares of the Company's common stock, $0.01 par value per share (the
"Shares"), to Metropolitan Life Insurance Company ("MetLife"). The price per
share was $26.125, and the aggregate value of the transaction was approximately
$125 million. Proceeds from the private placement will be used for general
corporate purposes, including the immediate capital needs associated with the
Company's primary businesses. The Shares were not registered under the
Securities Act of 1933, as amended (the "Act"), and were sold in reliance on the
exemption from registration contained in Section 4(2) of the Act. The Shares may
not be offered or sold in the United States absent registration or an applicable
exemption from registration requirements. The transaction provides for MetLife
to receive certain registration rights.
ITEM 7. EXHIBITS.
(c) The following exhibits are filed as part of this report on Form
8-K.
Exhibit 99.1 Press Release issued by the Reinsurance Group of
America, Incorporated dated November 24, 1999 relating to the private placement
of $125 million of common stock to Metropolitan Life Insurance Company.
Exhibit 99.2 Stock Purchase Agreement by and between Reinsurance
Group of America, Incorporated and Metropolitan Life Insurance Company, dated as
of November 23, 1999. *
Exhibit 99.3 Registration Rights Agreement by and between
Reinsurance Group of America, Incorporated and Metropolitan Life Insurance
Company, dated as of November 23, 1999.
Exhibit 99.4 Stockholders Agreement by and among Metropolitan
Life Insurance Company, GenAmerica Corporation, General American Life Insurance
Company, Equity Intermediary Company, and Reinsurance Group of America,
Incorporated, dated as of November 23, 1999.
* The registrant hereby undertakes to furnish supplementally a copy of any
omitted Exhibit or Schedule to the Commission upon request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act, the Registrant
has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
Date: December 6, 1999 REINSURANCE GROUP OF AMERICA,
INCORPORATED
By: /s/ Jack B. Lay
Name: Jack B. Lay
Title: Executive Vice President
and Chief Financial Officer
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[RGA LETTERHEAD]
For further information, contact
Jack B. Lay
Executive Vice President and
Chief Financial Officer
(636) 736-7439
E-mail: [email protected]
FOR IMMEDIATE RELEASE
RGA COMPLETES PRIVATE PLACEMENT OF $125 MILLION
IN COMMON STOCK WITH METLIFE.
St. Louis, November 24, 1999 -- Reinsurance Group of America,
Incorporated (NYSE: RGA) successfully completed its previously announced private
placement of $125 million in common stock with Metropolitan Life Insurance
Company (MetLife). The proceeds from this placement will be used for general
corporate purposes including addressing the immediate capital needs associated
with the growth of RGA's primary businesses. The shares of common stock issued
were not registered under the Securities Act of 1933 and may not be offered or
sold in the United States absent registration or an applicable exemption from
registration requirements. MetLife does, however, have certain registration
rights.
Reinsurance Group of America, Incorporated, through its U.S. and
Canadian subsidiaries, RGA Reinsurance Company and RGA Life Reinsurance Company
of Canada, is one of the largest life reinsurers in North America. RGA also
operates through offices or subsidiary companies in Argentina, Australia,
Barbados, Bermuda, Chile, Hong Kong, Japan, Mexico, Taiwan, South Africa, and
the United Kingdom. Worldwide, RGA has more than $400 billion of life
reinsurance in force, and assets of $5.2 billion.
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Add One
Statements in this press release regarding the business of Reinsurance
Group of America, Incorporated and the trading of its securities which are not
historical facts, including, without limitation, regarding RGA's possible future
growth and the sufficiency of RGA's resources, are "forward-looking statements"
that involve risks and uncertainties. For a discussion of such risks and
uncertainties, which could cause actual results to differ from those contained
in the forward-looking statements, see "Forward-Looking and Cautionary
Statements" in the Company's Annual Report or Form 10-K for the most recently
ended fiscal year.
# # #
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EXHIBIT 99.2
=============================================================================
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
REINSURANCE GROUP OF AMERICA, INCORPORATED
AND
METROPOLITAN LIFE INSURANCE COMPANY
DATED AS OF NOVEMBER 23, 1999
=============================================================================
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TABLE OF CONTENTS
<TABLE>
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Page
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ARTICLE I DEFINITIONS............................................................................1
ARTICLE II PURCHASE AND SALE OF PURCHASED SHARES; CLOSING.........................................5
Section 2.1 Purchase and Sale......................................................................5
Section 2.2 Additional Agreements..................................................................6
Section 2.3 Closing................................................................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................6
Section 3.1 Organization and Qualification; Subsidiaries...........................................6
Section 3.2 Authority Relative to Agreements.......................................................7
Section 3.3 Capital Stock..........................................................................7
Section 3.4 No Conflicts...........................................................................8
Section 3.5 SEC Documents; Financial Statements; Undisclosed Liabilities...........................9
Section 3.6 Litigation............................................................................10
Section 3.7 Compliance with Law...................................................................11
Section 3.8 Absence of Certain Changes or Events..................................................11
Section 3.9 Tax Matters...........................................................................11
Section 3.10 Assets................................................................................12
Section 3.11 Employees and Employee Benefit Plans..................................................13
Section 3.12 Insurance.............................................................................14
Section 3.13 State Takeover Statutes and Shareholder Rights Plans..................................14
Section 3.14 Brokers or Finders....................................................................15
Section 3.15 Year 2000 Matters.....................................................................15
Section 3.16 Affiliate Transactions................................................................15
Section 3.17 No Significant Stock Acquisition......................................................15
Section 3.18 Use of Proceeds.......................................................................15
Section 3.19 Disclosure............................................................................15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER...............................................16
Section 4.1 Investment Intent of Buyer............................................................16
Section 4.2 Organization and Qualification........................................................16
Section 4.3 Authority Relative to Agreements......................................................16
Section 4.4 No Conflicts..........................................................................17
Section 4.5 Interested Shareholder................................................................17
Section 4.6 No Reliance on Projections............................................................17
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE V COVENANTS.............................................................................17
Section 5.1 Confidentiality.......................................................................17
Section 5.2 Public Announcements..................................................................18
Section 5.3 Information and Access................................................................18
Section 5.4 Use of Proceeds.......................................................................18
Section 5.5 Further Assurances....................................................................18
Section 5.6 Legend................................................................................18
ARTICLE VI CLOSING DELIVERIES....... ............................................................19
Section 6.1 Company's Deliveries to Buyer.........................................................19
Section 6.2 Buyer's Deliveries to the Company.....................................................20
ARTICLE VII SURVIVAL..............................................................................20
Section 7.1 Survival..............................................................................20
ARTICLE VIII EXPENSES..............................................................................21
Section 8.1 Expenses..............................................................................21
ARTICLE IX MISCELLANEOUS.........................................................................21
Section 9.1 Counterparts..........................................................................21
Section 9.2 Governing Law.........................................................................21
Section 9.3 Entire Agreement......................................................................21
Section 9.4 Notices...............................................................................22
Section 9.5 Successors and Assigns................................................................23
Section 9.6 Headings..............................................................................23
Section 9.7 Amendments and Waivers................................................................23
Section 9.8 Severability..........................................................................23
</TABLE>
EXHIBITS
Exhibit A Registration Rights Agreement
Exhibit B Stockholders Agreement
Exhibit C-1 Opinion of Bryan Cave LLP
C-2 Opinion of Lewis, Rice & Fingersh, L.C.
C-3 Opinion of the General Counsel of the Company
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SCHEDULES
Schedule 3.1(d) Insurance Licenses
Schedule 3.1(e) Company Subsidiaries
Schedule 3.3(a) Equity Securities and Pro Forma Capitalization
Schedule 3.3(b) Investments
Schedule 3.4 Conflicts
Schedule 3.5(a) Company Reports
Schedule 3.5(e) Reserves and Liability Amounts
Schedule 3.6 Litigation
Schedule 3.8 Changes or Events
Schedule 3.9(a) Tax Audits and Examinations; Tax Disputes and Claims
Schedule 3.9(b) Tax Sharing Agreements
Schedule 3.16 Affiliate Transactions
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STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of November 23,
1999, by and between REINSURANCE GROUP OF AMERICA, INCORPORATED, a Missouri
corporation (the "Company"), and METROPOLITAN LIFE INSURANCE COMPANY, a New York
mutual life insurance company ("Buyer").
W I T N E S S E T H:
WHEREAS, Buyer wishes to purchase from the Company, and the Company
wishes to sell to Buyer, shares of the Company's common stock, par value $0.01
per share (the "Company Common Stock"), on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"Action" shall mean any action, suit, arbitration, inquiry, proceeding
or investigation by or before any Government Authority or before any private
dispute resolution panel, including, without limitation, the New York State
Exchange, Inc., the National Association of Securities Dealers, Inc. and similar
organizations.
"Affiliate" shall mean, with respect to any person, any other person
who directly or indirectly controls, is controlled by or is under common control
with such first person. The term "control", for the purposes of this definition,
means the power to direct or cause the direction of the management or policies
of the controlled person, whether through stock ownership, contract or
otherwise.
"Agreement" shall have the meaning set forth in the first paragraph
hereof.
"Applicable Insurance Laws" shall have the meaning set forth in Section
3.5(e).
"Board" shall mean the Board of Directors of the Company.
"Business Day" shall mean any day other than (i) a Saturday, (ii) a
Sunday or (iii) any other day on which banks are authorized or required to close
in New York, New York.
<PAGE> 6
"Buyer" shall have the meaning set forth in the first paragraph hereof.
"Charter Documents" shall mean, with respect to any person, (i) the
articles of incorporation, articles of organization, certificate of formation or
equivalent organizational document of such person and any amendment or
supplement thereto, as in effect on the date hereof and (ii) the by-laws,
operating agreement, partnership agreement or equivalent organizational document
of any such person and any amendment or supplement thereto, as in effect on the
date hereof.
"Closing" shall mean the consummation of the purchase and sale of the
Purchased Shares hereunder.
"Closing Date" shall mean the date on which the Closing shall occur.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
any successor thereto, including all of the Treasury regulations promulgated
thereunder.
"Company" shall have the meaning set forth in the first paragraph
hereof.
"Company Common Stock" shall have the meaning set forth in the recitals
hereto.
"Company Plan" shall have the meaning set forth in Section 3.11(b).
"Company Preferred Stock" shall have the meaning set forth in Section
3.3(a).
"Company Reports" shall have the meaning set forth in Section 3.5(a).
"EIM" shall mean Equity Intermediary Company, a Missouri corporation
and an indirect wholly-owned subsidiary of General American.
"Equity Securities" shall mean, with respect to any person, all shares,
interests, participations, rights in or other equivalent (however designated and
whether voting or non-voting) of such person's capital stock or any form of
membership interests, as applicable, whether outstanding on the Closing Date or
issued after the Closing Date and any and all rights, warrants or options
exercisable or exchangeable for or convertible into such capital stock or such
form of membership interest, including, without limitation, any "equity
security" within the meaning of Rule 3a11-1 under the Exchange Act.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor thereto.
"ERISA Affiliates" shall mean any entity which is under "common
control" with the Company, within the meaning of Section 4001(b)(1) of ERISA.
"Exchange Act" shall have the meaning set forth in Section 3.5(a).
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"GAAP" shall have the meaning set forth in Section 3.5(b).
"GALIC" shall mean General American Life Insurance Company, a Missouri
life insurance company.
"GenAmerica" shall mean GenAmerica Corporation, a Missouri corporation.
"General American" shall mean General American Mutual Holding Company,
a Missouri mutual insurance holding company.
"General American Agreement" shall mean the Stock Purchase Agreement,
dated as of August 26, 1999, by and between General American and Buyer, as
amended from time to time.
"Government Authority" shall mean any government or state (or any
subdivision thereof) of, in or outside the United States, or any agency,
authority, bureau, commission, department or similar body or instrumentality
thereof, or any governmental court or tribunal.
"IRS" shall mean the Internal Revenue Service.
"Law" shall mean any statute, ordinance, code, rule, regulation or
order enacted, adopted, promulgated, applied or followed by any Government
Authority.
"Liabilities" shall mean, as to any person, all indebtedness, adverse
claims, liabilities and obligations, direct, indirect, absolute or contingent of
such person, whether fixed, unfixed, matured, unmatured, known or unknown,
accrued, vested or otherwise, whether in contract, tort, strict liability or
otherwise and whether or not actually reflected, or required by GAAP to be
reflected, in such person's balance sheets or other books and records,
including, without limitation, (i) all obligations arising from non-compliance
with any Law, (ii) all indebtedness or liability of such person for borrowed
money, or for the purchase price of property or services (including trade
obligations), (iii) all obligations of such person as lessee under leases,
capital or other, (iv) all liabilities of such person in respect of plans
covered by Title IV of ERISA, or otherwise arising in respect of plans for
current or former employees or their respective families or beneficiaries, (v)
all reimbursement obligations of such person in respect of letters of credit,
(vi) all obligations of such person arising under acceptance facilities, (vii)
all liabilities of other persons or entities, directly or indirectly,
guaranteed, endorsed (other than for collection or deposit in the ordinary
course of business) or discounted with recourse by such person or with respect
to which the person in question is otherwise directly or indirectly liable,
(viii) all obligations secured by any Lien on property of such person, whether
or not the obligations have been assumed, and (ix) all other items which have
been, or in accordance with GAAP would be, included in determining total
liabilities on the liability side of the balance sheet.
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"Liens" shall mean all liens, mortgages, deeds of trust, deeds to
secure debt, security interests, pledges, claims, charges, limitations,
restrictions, easements and other encumbrances of any nature whatsoever.
"Material Adverse Effect" shall mean a material adverse effect on the
condition (financial or otherwise), results of operations, assets, prospects or
business of the Company and its Subsidiaries on a consolidated basis.
"Material Subsidiaries" shall mean Reinsurance Company of Missouri,
Incorporated, RGA Reinsurance Company, RGA Reinsurance Company (Barbados) Ltd.,
RGA International Ltd., RGA Canada Management Company Ltd. and RGA Life
Reinsurance Company of Canada.
"Permitted Liens" shall mean (i) Liens for taxes or other assessments
or charges of Government Authorities that are not yet delinquent or that are
being contested in good faith by appropriate proceedings, in each case, with
respect to which adequate reserves are being maintained by the Company or its
Subsidiaries to the extent required by GAAP, (ii) assets held in trust or in
special deposits in order to meet insurance regulatory requirements, and (iii)
statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen and
other Liens imposed by Law and created in the ordinary course of business or in
order to meet insurance regulatory requirements for amounts not yet overdue or
which are being contested in good faith by appropriate proceedings, in the case
of clauses (i) and (iii), with respect to which adequate reserves or other
appropriate provisions are being maintained by the Company or its Subsidiaries
to the extent required by GAAP and which do not exceed $1,000,000 in the
aggregate.
"person" shall mean any individual, entity or group, including, without
limitation, any individual, corporation, partnership, limited liability company,
joint venture, trust, association, joint stock company, unincorporated
organization, other form of business or legal entity or Government Authority.
"Purchase Price" shall have the meaning set forth in Section 2.1.
"Purchased Shares" shall have the meaning set forth in Section 2.1.
"Registration Rights Agreement" shall have the meaning set forth in
Section 2.2.
"Rights" shall mean the rights issued pursuant to the Rights Agreement.
"Rights Agreement" shall mean the Rights Agreement, dated as of May 4,
1993, between the Company and Chase Mellon Shareholder Services, L.L.C. (as
successor to Boatman's Trust Company), as amended.
"SAP Financial Statements" shall have the meaning set forth in Section
3.5(d).
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall have the meaning set forth in Section 3.3(c).
"Securities Laws" shall have the meaning set forth in Section 3.5(a).
"Significant Stock Acquisition" shall mean such time as (i) a "person"
or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange
Act), other than General American or any of its Subsidiaries, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more
than 5% of the outstanding voting capital stock of the Company; or (ii) during
any period of two consecutive calendar years, individuals who at the beginning
of such period constituted the Board (together with any new directors whose
election by the Board or whose nomination for election was approved by a vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the directors then in office.
"Stockholders Agreement" shall have the meaning set forth in Section
2.2.
"Subsidiaries" shall mean with respect to any person, any other person,
of which such first person, directly or indirectly, owns or controls 50% or more
of the securities or other interests entitled to vote under ordinary
circumstances in the election of directors or others performing similar
functions with respect to such other person, or to otherwise control such other
person. Without limiting the generality of the foregoing, when used herein
without reference to any person, "Subsidiary" shall mean a Subsidiary of the
Company, all of which are set forth on Schedule 3.1(e).
"Tax" means any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code Section
59A), customs duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-
on minimum, estimated, or other tax of any kind whatsoever, including any
interest, penalty or addition thereto, whether disputed or not. The term "Tax"
also includes any amounts payable pursuant to any tax sharing agreement to which
any relevant entity is liable as a successor or pursuant to contract.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
ARTICLE II
PURCHASE AND SALE OF PURCHASED SHARES; CLOSING
Section 2.1 Purchase and Sale. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing, the Company shall issue,
sell and deliver to Buyer, and Buyer shall purchase, acquire and accept from the
Company, an
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aggregate of 4,784,689 shares of Company Common Stock (the "Purchased Shares"),
for a purchase price of $26.125 per share, or One Hundred Twenty-Five Million
Dollars and Thirteen Cents ($125,000,000.13) in the aggregate (the "Purchase
Price").
Section 2.2 Additional Agreements. At the Closing, the Company and
Buyer shall enter into a registration rights agreement substantially in the form
attached hereto as Exhibit A (the "Registration Rights Agreement"), and the
Company, Buyer, EIM, GALIC and GenAmerica shall enter into a stockholders
agreement substantially in the form attached hereto as Exhibit B (the
"Stockholders Agreement").
Section 2.3 Closing. The Closing shall take place upon execution of
this Agreement, at the offices of Dewey Ballantine LLP, 1301 Avenue of the
Americas, New York, New York, or at such other place and time as the Company and
Buyer shall mutually agree. At the Closing, the Company shall deliver or cause
to be delivered to Buyer the items listed in Section 6.1, and Buyer shall
deliver or cause to be delivered to the Company the items listed in Section 6.2.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Buyer as follows:
Section 3.1 Organization and Qualification; Subsidiaries.
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the Laws of the State of Missouri. The Company has
all requisite corporate power and authority to own, operate and lease its
properties and assets, to carry on its business as now conducted, and to enter
into this Agreement, the Registration Rights Agreement and the Stockholders
Agreement and to perform its obligations hereunder and thereunder.
(b) Each of the Subsidiaries of the Company is a corporation duly
organized, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or organization, and has the corporate power
and authority to own, operate and lease its properties and assets and to carry
on its business as now conducted.
(c) The Company and each of its Subsidiaries is duly licensed or
qualified to do business and in good standing and has all insurance licenses in
each jurisdiction in which the ownership or leasing of its property or the
conduct of its business requires such licensing or qualification, except for any
failures to be so licensed or qualified or to be in good standing that would
not, individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
(d) Each insurance license of the Company and its Subsidiaries,
including, but not limited to, each authorization to transact reinsurance, is in
full force and effect without amendment, limitation or restriction other than as
described in
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Schedule 3.1(d), and the Company is not aware of any event, inquiry or
proceeding which would reasonably be expected to lead to the revocation,
amendment, failure to renew, limitation, suspension or restriction of any such
insurance license, except, in each case, such failures to be in full force and
effect and such revocations, amendments, failures to renew, limitations,
suspensions and restrictions that would not, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect.
(e) Schedule 3.1(e) sets forth the name of each Subsidiary of the
Company (whether owned, directly or indirectly, through one or more
intermediaries), its jurisdiction of incorporation or organization, and all
jurisdictions where it is licensed or qualified to do business. All of the
outstanding shares of capital stock of, or other equity interest in, each of the
Subsidiaries are duly authorized, validly issued, fully paid and nonassessable,
and are owned, directly or indirectly, by the Company free and clear of all
Liens, except as set forth in Schedule 3.1(e). Except as set forth on Schedule
3.1(e), there are no outstanding Equity Securities of any of the Subsidiaries,
other than Equity Securities owned directly or indirectly by the Company. None
of the Subsidiaries, other than the Material Subsidiaries, individually
accounted for more than 10 percent of the consolidated assets of the Company and
its Subsidiaries as of September 30, 1999 or 10 percent of the consolidated
revenues of the Company and its Subsidiaries for the nine months ended September
30, 1999. There is no state of affairs relating to any of the Subsidiaries,
other than the Material Subsidiaries, that would, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
Section 3.2 Authority Relative to Agreements. The execution, delivery
and performance of this Agreement, the Registration Rights Agreement and the
Stockholders Agreement have been duly and validly authorized by all necessary
corporate action on the part of the Company and no other corporate proceedings
are necessary therefor. This Agreement, the Registration Rights Agreement and
the Stockholders Agreement have been duly executed and delivered by the Company
and constitute the valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms (except as
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights generally
and by general principles of equity).
Section 3.3 Capital Stock.
(a) The authorized capital stock of the Company consists of 75,000,000
shares of Company Common Stock, par value $0.01 per share, and 10,000,000 shares
of Preferred Stock, par value $0.01 per share ("Company Preferred Stock"). As of
the date hereof, (i) 45,151,264 shares of Company Common Stock are issued and
outstanding, (ii) 1,117,320 shares of Company Common Stock are held in the
Company's treasury, (iii) 2,007,282 shares of Company Common Stock are reserved
for issuance pursuant to the Company Plans and 500,000 shares of Company
Preferred Stock are reserved for issuance pursuant to the Rights Agreement and
(iv) no shares of Company Preferred Stock are issued, outstanding or held in its
treasury. Except as set forth in the immediately preceding sentence, no Equity
Securities of the Company are issued, outstanding, held in the Company's
treasury or reserved for issuance. All such issued
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and outstanding shares of Company Common Stock are duly authorized, validly
issued, fully paid, nonassessable and free of preemptive rights. Neither the
Company nor any of its Subsidiaries has any outstanding obligations pursuant to
which the holders thereof have the right to vote (or which are convertible into
or exercisable or exchangeable for securities pursuant to which the holders
thereof have the right to vote) with the stockholders of the Company on any
matter. As of the date hereof, except as set forth in this Section 3.3(a) or in
Schedule 3.3(a), there are no outstanding Equity Securities of the Company.
Schedule 3.3(a) shows the pro forma capitalization of the Company as of
September 30, 1999 after giving effect to the Closing.
(b) Except for interests in the Subsidiaries of the Company and except
as set forth in Schedule 3.3(b), none of the Company or any of its Subsidiaries
owns or holds, directly or indirectly, any interest or investment (whether
equity or debt) in any person (other than (i) investments made in the ordinary
course and held in the portfolios of the Subsidiaries which are insurance
companies or (ii) fixed income investments made in the ordinary course and held
in the portfolio of the Company).
(c) The Purchased Shares have been duly authorized for issuance, and
upon issuance at the Closing will be duly and validly issued, fully paid and
nonassessable. The source of the Purchased Shares is the Company's treasury
shares or authorized and unissued shares of Company Common Stock. Upon issuance
at the Closing, the Purchased Shares will be listed on the New York Stock
Exchange, Inc. Upon the Closing, the Company will duly issue all of the
Purchased Shares to Buyer free and clear of all Liens (other than any transfer
restrictions under the Securities Laws). The issuance and sale of the Purchased
Shares hereunder will not give any stockholder of the Company the right to
demand payment for its shares or give rise to any preemptive or similar rights.
Neither the Company nor any person acting on its behalf has taken, or will take,
any action that would subject the offer, sale or issuance of the Purchased
Shares to the registration requirements of (i) Section 5 of the Securities Act
of 1933, as amended (the "Securities Act") or (ii) state securities Laws. On the
basis of the representations contained in Article IV hereof, the offer, sale and
issuance of the Purchased Shares by the Company to Buyer are exempt from the
registration requirements of (i) Section 5 of the Securities Act and (ii) state
securities Laws. No further approval or authorization of the stockholders or
directors of the Company is required for the issuance and sale of the Purchased
Shares to Buyer.
Section 3.4 No Conflicts. Neither the execution and delivery by the
Company of this Agreement, the Registration Rights Agreement and the
Stockholders Agreement nor the performance by the Company of its obligations
hereunder or thereunder will conflict with, result in a breach of the terms,
conditions or provisions of, constitute a default under, result in the creation
of any Lien upon any of the properties or assets of the Company or any of the
Material Subsidiaries pursuant to, trigger any payment or other obligations
pursuant to, accelerate vesting under, or require any consent, approval or other
action by or any notice to or filing by the Company or any Material Subsidiary
with any person pursuant to, the Charter Documents of the Company or any of the
Material Subsidiaries, any Company Plan, any grant or award made under any
Company Plan or any agreement, instrument, license, permit, order, judgment,
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injunction, writ, decree or Laws applicable to the Company or any of the
Material Subsidiaries or by which any of their properties or assets is bound,
except as set forth in Schedule 3.4.
Section 3.5 SEC Documents; Financial Statements; Undisclosed
Liabilities.
(a) Schedule 3.5(a) sets forth a list of each registration statement,
report, form, schedule, statement or other document and all amendments and
supplements thereto prepared by the Company or relating to its properties or
assets filed with the SEC since June 1, 1996 (collectively, the "Company
Reports"). Except as set forth in Schedule 3.5(a), the Company Reports were
filed with the SEC in a timely manner and include all registration statements,
reports, forms, schedules, statements and other documents required to be filed
by the Company under the Securities Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the rules and regulations promulgated
thereunder (collectively, the "Securities Laws"). As of their respective dates,
the Company Reports (i) complied in all material respects with all applicable
requirements of the Securities Laws and (ii) were complete and correct in all
material respects and did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading. There is no unresolved violation asserted by any
Government Authority with respect to any of the Company Reports.
(b) Each of the balance sheets included in or incorporated by reference
into the Company Reports (including the related notes and schedules) fairly
presented in all material respects the financial position of the person or
persons to which it relates as of its date and each of the statements of income,
stockholders' equity and cash flows included in or incorporated by reference
into the Company Reports (including any related notes and schedules) fairly
presented in all material respects the results of operations, retained earnings
or cash flows, as the case may be, of the person or persons to which it relates
for the periods set forth therein, in each case in accordance with United States
generally accepted accounting principles consistently applied ("GAAP") during
the periods involved, except as may be noted therein and except, in the case of
the unaudited statements, normal recurring year-end adjustments which have not
been and will not be material in nature or amount.
(c) Except as and to the extent set forth in the Company Reports and
the Company's financial statements filed with the SEC, neither the Company nor
any of the Material Subsidiaries has any Liabilities (nor is the Company aware
of any circumstances that would result in any such Liabilities) that would,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
(d) The Company has previously furnished Buyer with copies of audited
statutory financial statements of each of the Material Subsidiaries as of and
for the years ended December 31, 1998 and 1997, and unaudited statutory
financial statements of RGA Life Insurance Company of Canada as of and for the
period ended June 30, 1999 and
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RGA Reinsurance Company as of and for the period ended September 30, 1999, in
each case prepared in conformity with accounting practices prescribed or
permitted by their respective jurisdictions of domicile, and in each case to the
extent that such statutory financial statements have been prepared or are
required by Law to be prepared (collectively, the "SAP Financial Statements").
Each of the balance sheets included in the SAP Financial Statements fairly
presented in all material respects the financial position of the reporting
person as of its date and each of the statements of operations and cash flows
included in the SAP Financial Statements fairly presented in all material
respects the results of operations and cash flows of the reporting person for
the period therein set forth, in each case in accordance with statutory
accounting practices prescribed or permitted by the applicable jurisdiction on a
consistent basis. As of their respective dates, the SAP Financial Statements
complied in all material respects with all applicable Laws. No material
deficiencies or unresolved violations have been asserted by any Government
Authority with respect to the SAP Financial Statements.
(e) Each reserve and other liability amount in respect of the insurance
or reinsurance business, established or reflected in the SAP Financial
Statements of each reporting person was determined in accordance with generally
accepted actuarial standards consistently applied, was based on actuarial
assumptions that were in accordance with or stronger than those called for in
relevant policy and contract provisions, is fairly stated in all material
respects in accordance with sound actuarial principles and is in compliance with
the requirements of the insurance Laws of their respective jurisdictions of
domicile as well as those of any other applicable jurisdictions (collectively,
"Applicable Insurance Laws"). Except as set forth on Schedule 3.5(e), such
reserves and liability amounts with respect to each reporting person were
adequate in all material respects to cover the total amount of all Liabilities
of such reporting person under all its outstanding insurance, reinsurance and
other similar contracts as of December 31, 1998 and 1997, June 30, 1999 or
September 30, 1999, as appropriate. Such investment assumptions were reasonable
as of December 31, 1998 or 1997, June 30, 1999 or September 30, 1999, as
appropriate. Each reporting person owns assets that qualify as admitted assets
in an amount at least equal to the sum of all such reserves and liability
amounts and its minimum statutory capital and surplus as required by Applicable
Insurance Laws.
Section 3.6 Litigation. Except as set forth on Schedule 3.6, there are
no Actions pending or, to the Company's knowledge, threatened against or
affecting (i) the Company, (ii) any of the Material Subsidiaries, (iii) any
director, officer, agent, employee, consultant or other person authorized to act
on behalf of the Company or any of the Material Subsidiaries, arising out of or
in connection with his or her capacity as a director, officer, agent, employee
or consultant of, the Company or any of the Material Subsidiaries, or (iv) any
properties of any of the foregoing, that would, individually or in the
aggregate, be reasonably likely to result in a Material Adverse Effect, or which
question the validity of this Agreement, the Registration Rights Agreement or
the Stockholders Agreement or any of the transactions contemplated hereby or
thereby. Except as disclosed in Schedule 3.6, there are no continuing orders,
injunctions or decrees of any Government Authority to which the Company or any
of the Material Subsidiaries is a party or by which any of its properties or
assets are bound.
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Section 3.7 Compliance with Law.
(a) None of the Company or any of the Material Subsidiaries is in
violation of any Law, order, writ, decree or injunction of any Government
Authority or any body having jurisdiction over them or any of their respective
properties or assets which, if enforced, would, individually or in the
aggregate, be reasonably expected to result in a Material Adverse Effect.
Neither the Company nor any of the Material Subsidiaries is in violation of, or
in default under (and there does not exist any event or condition which, after
notice or lapse of time or both, would constitute such a default under), any
term of its Charter Documents, or of any term of any agreement, contract,
instrument, judgment, decree, writ, determination, arbitration award, or Law
applicable to the Company or any of the Material Subsidiaries or to which the
Company or any of the Material Subsidiaries is bound, or to any properties or
assets of the Company or any of the Material Subsidiaries, except in each case
to the extent that such violations or defaults would not, individually or in the
aggregate, be reasonably expected to (i) affect the validity or enforceability
of this Agreement, the Registration Rights Agreement or the Stockholders
Agreement, (ii) have a Material Adverse Effect, or (iii) impair the ability of
the Company or any of the Material Subsidiaries to perform fully on a timely
basis any obligation which the Company or any such Material Subsidiary will have
under this Agreement, the Registration Rights Agreement or the Stockholders
Agreement.
(b) The Company and each of the Material Subsidiaries have filed all
reports, registrations and statements, together with any amendments required to
be made with respect thereto, that they were required to file with any
Government Authority, to be filed, and have paid all fees or assessments due and
payable in connection therewith except, in each case, such failure to file or
pay fees or assessments that would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
Section 3.8 Absence of Certain Changes or Events. Except as disclosed
in the Company Reports filed with the SEC prior to the date hereof or in
Schedule 3.8, since December 31, 1998, the Company and each of the Material
Subsidiaries has conducted its business only in the ordinary course, and there
has not been (a) any change, circumstance or event that would, individually or
in the aggregate, be reasonably expected to have a Material Adverse Effect, (b)
any declaration, setting aside or payment of any dividend or other distribution
with respect to the Company Common Stock, (c) any Liability, capital
expenditure, commitment or transaction incurred by the Company or any of the
Material Subsidiaries, other than Liabilities, capital expenditures, commitments
and transactions incurred in the ordinary course of business consistent with the
Company's past practices, or (d) any Lien placed on any of the properties or
assets of the Company or any of the Material Subsidiaries that remains in
existence on the date hereof, other than Permitted Liens.
Section 3.9 Tax Matters.
(a) Except where the failure would not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect, the Company
and each of the
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Material Subsidiaries has timely filed with the appropriate Government Authority
all Tax Returns required to be filed by it or has timely requested extensions
and any such request has been granted and has not expired. Each such Tax Return
is complete and accurate in all material respects. All Taxes shown as owed by
the Company or any of the Material Subsidiaries on any Tax Return or claimed or
asserted to be due, from or with respect to any of them, have been paid, except
for Taxes being contested in good faith and for which adequate reserves have
been taken on the balance sheet of the person taking such reserves. The Company
and each of the Material Subsidiaries have properly made due and sufficient
accruals for all Taxes for such periods subsequent to the periods covered by
such Tax Returns as required by GAAP. The Company and each of the Material
Subsidiaries have made all required current estimated Tax payments in an amount
sufficient to avoid any understatement penalties. Except as set forth in
Schedule 3.9(a), none of the Company or any of the Material Subsidiaries is
being audited or examined by any Government Authority with respect to any Tax or
is a party to any pending action or proceedings by any Government Authority for
assessment or collection of any Tax, and no claim for assessment or collection
of any Tax has been asserted against it. Except as set forth in Schedule 3.9(a),
there is no dispute or claim concerning any Tax liability of the Company or any
of the Material Subsidiaries, (i) claimed or raised by any Government Authority
in writing or (ii) as to which the Company or any of the Material Subsidiaries
has knowledge, except to the extent such dispute or claim would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
(b) Except as set forth in Schedule 3.9(b), neither the Company nor any
of the Material Subsidiaries is a party to, bound by, or obligated under, any
Tax sharing agreement (whether written or oral).
(c) The Company and each of the Material Subsidiaries (i) have complied
in all material respects with the provisions of the Code relating to the
withholding and payment of Taxes, including, without limitation, the withholding
and reporting requirements under Code Sections 1441 through 1464, 3401 through
3406, and 6041 through 6049, and any similar provisions under any other Laws,
(ii) have within the time and in the manner prescribed by Law withheld from
employee wages and paid over to the proper Government Authorities all amounts
required, and (iii) have complied in all material respects with the requirements
for classifying persons who provide services to the Company and the Material
Subsidiaries as employees for purposes of such tax withholding requirements.
Section 3.10 Assets.
(a) Each agreement to which the Company or any of the Material
Subsidiaries is a party or by which it is bound and which is material to the
business of the Company or such Material Subsidiary is in full force and effect.
Neither the Company nor any of the Material Subsidiaries is in material breach,
violation or default thereunder. The Company is not aware of a breach, violation
or default thereunder by any other parties thereto that, when taken together
with all of the other breaches, violations and
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<PAGE> 17
defaults under the other material agreements of the Company or any Material
Subsidiary, would reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any of the Material Subsidiaries owns or
has owned any real property. Each of the leases for office space occupied by the
Company or any of the Material Subsidiaries (the "Leases") is in full force and
effect and there are no existing defaults under any of the Leases nor does there
exist any event or condition which, with notice or lapse of time or both, would
give rise to a default or constitute grounds for termination or re-entry under
any of the Leases that would, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect.
(c) All copyrights, patents, trademarks, licenses, trade names, logos,
assumed or other names and other intangible property rights owned or, to the
Company's knowledge, used by the Company or any of the Material Subsidiaries in
their businesses, are valid, subsisting and in full force and effect without
interference by any other person, except for such instances which would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect. Neither the Company nor any of the Material Subsidiaries has
received any notice with respect to any alleged infringement or unlawful use of
any intangible property right owned or alleged to be owned by others that would,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
(d) The Company and each of the Material Subsidiaries has good and
marketable title to all of the assets owned by the Company or such Material
Subsidiary, as the case may be, free and clear of all Liens (except for
Permitted Liens and Liens which do not materially interfere with the current and
intended use of such assets). All assets used in or necessary for the conduct of
the business of the Company and each of the Material Subsidiaries as currently
conducted are owned by or leased or licensed to it. No other person owns, or has
any rights whatsoever in, any such assets (except in the case of assets leased
or licensed to the Company or any of the Material Subsidiaries, the ownership
interest in such assets by the lessor or licensor), except where such ownership
or rights would not, individually or in the aggregate, be reasonably expected to
have a Material Adverse Effect. Such assets have been properly maintained and
are in good operating condition and repair, ordinary wear and tear excepted, and
are reasonably adequate for the uses to which they are being put.
Section 3.11 Employees and Employee Benefit Plans.
(a) With respect to each Company Plan, the Company and each of its
Subsidiaries is in compliance in all material respects with the terms of each
Company Plan and with the requirements prescribed by all applicable statutes,
orders or governmental rules or regulations. As to each Company Plan intended to
be qualified under Section 401(a) of the Code, the Company has received a
favorable determination letter from the IRS and nothing has occurred since the
date of such letter to impair its continued validity and effectiveness, assuming
that the plan is amended on a timely basis to comply with any changes in
legislative, regulatory or administrative requirements as to
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<PAGE> 18
which the remedial amendment period has not yet ended. No Company Plan, nor any
fiduciary of party in interest thereof, has engaged in any material, non-exempt
prohibited transaction under ERISA of the Code.
(b) For purposes hereof, "Company Plan" means any employee benefit or
compensation plan, policy, program, arrangement or agreement, including, but not
limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA,
maintained or contributed to by the Company or a Subsidiary or in which the
Company or a Subsidiary participates or participated and which provides benefits
to current or former employees of the Company or a Subsidiary.
(c) With respect to each Company Plan and each plan of an ERISA
Affiliate that is subject to Title IV or Section 302 of ERISA or Section 412 or
4971 of the Code: (i) there does not exist any accumulated funding deficiency
within the meaning of Section 412 of the Code or Section 302 of ERISA, whether
or not waived, (ii) no reportable event within the meaning of Section 4043(c) of
ERISA has occurred in the past 3 years, with respect to which notice has not
been waived, and (iii) there is no liability, contingent or otherwise, under
Title IV of ERISA, except for payment of PBGC premiums. Neither the Company nor
any ERISA Affiliate participates in any "multiemployer plan" (as defined in
Section 3(37) of ERISA) nor has the Company or any ERISA Affiliate incurred any
withdrawal liability under any multiemployer plan that has not been satisfied in
full.
Section 3.12 Insurance. The Company maintains insurance policies,
including liability policies, covering the assets, business, equipment,
properties, operations, employees, officers and directors of the Company and
each of the Material Subsidiaries, which are of a type and in amounts
customarily carried by persons conducting businesses similar to those of the
Company and the Material Subsidiaries.
Section 3.13 State Takeover Statutes and Shareholder Rights Plans. The
Company has caused to be taken all actions necessary such that no "fair price,"
"moratorium," "control share acquisition," "business combination" or other form
of antitakeover statute, regulation or provision of the Company Charter
(assuming Buyer's representations in Section 4.5 are accurate) is applicable to
any of the transactions contemplated hereby or by the Registration Rights
Agreement or the Stockholders Agreement, including, without limitation, Sections
351.407 and 351.459 of the Missouri Revised Statutes; provided that with respect
to Section 351.459 of the Missouri Revised Statutes, the Company has not taken
any action that would permit the assignment of the Purchased Shares by Buyer to
an "interested shareholder" as defined in such Section. The Company has caused
to be taken all actions necessary such that, for all purposes under the Rights
Agreement, neither Buyer nor any of its Affiliates shall be deemed an Acquiring
Person (as defined in the Rights Agreement), the Distribution Date (as defined
in the Rights Agreement) shall not be deemed to occur, and the Rights will not
separate from the Company Common Stock, in each case as a result of Buyer's
entering into this Agreement, the Registration Rights Agreement and the
Stockholders Agreement or consummating the acquisition of the Purchased Shares
pursuant hereto, and there shall be no effect under the Rights Agreement or with
respect to the Rights as a result of such
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<PAGE> 19
transactions, other than the issuance of Rights to Buyer pursuant thereto. For
the avoidance of doubt, references to "Buyer" in this Section shall only refer
to Buyer and not any of its successors or permitted assigns.
Section 3.14 Brokers or Finders. Neither the Company nor any of its
Subsidiaries, stockholders, officers, directors or employees has engaged any
agent, broker, investment banker or other firm or person that will be entitled
to any broker's or finder's fee or any other commission or similar fee in
connection with this Agreement or any of the transactions contemplated hereby
for which the Buyer or any of its Affiliates will be responsible.
Section 3.15 Year 2000 Matters. All information technology presently
expected to be used by the Company or any Material Subsidiary following December
31, 1999 in the administration and the business operations of the Company or any
Material Subsidiary, including, without limitation, in all products and services
(i) provided by the Company or any Material Subsidiary whether to third parties
or for internal use or (ii) to the best of the Company's knowledge after
reasonable investigation, used in combination with any information technology of
its clients, customers, suppliers or vendors, accurately processes or will
process all date and time data (including, but not limited to calculating,
comparing and sequencing) from, into and between the years 1999 and 2000 and the
twentieth century and the twenty-first century, including leap year
calculations, and neither the performance nor the functionality of such
technology will be affected by dates prior to, during and after the year 2000
which would, individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect. Neither the Company nor any Material Subsidiary has any
obligation under warranty agreements, service agreements or otherwise to remedy
any information technology defect relating to the year 2000 which would,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
Section 3.16 Affiliate Transactions. Schedule 3.16 sets forth a
complete and accurate list and description of all transactions entered into by
the Company or any of the Material Subsidiaries since January 1, 1999 or
currently proposed which are of the type required to be disclosed by the Company
pursuant to Item 404 of Regulation S-K of the Securities Laws.
Section 3.17 No Significant Stock Acquisition. Except pursuant to the
General American Agreement, since June 30, 1999, to the Company's knowledge, no
Significant Stock Acquisition of the Company has occurred and no event has
occurred which is reasonably likely to lead to a Significant Stock Acquisition.
Section 3.18 Use of Proceeds. The Company will apply the proceeds of
the sale of the Purchased Shares solely for general corporate purposes.
Section 3.19 Disclosure. Neither this Agreement (including the
schedules and exhibits hereto) nor any certificate, instrument or written
statement furnished to Buyer by or on behalf of the Company pursuant to this
Agreement contains any untrue statement of a material fact or omits to state a
material fact necessary in order
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to make the statements contained herein and therein in light of the
circumstances under which they were made not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Company as follows:
Section 4.1 Investment Intent of Buyer. Buyer understands that the
offer and sale of the Purchased Shares have not been registered under the
Securities Act. Buyer also understands that the Purchased Shares are being
offered and sold pursuant to an exemption from registration contained in the
Securities Act based in part upon Buyer's representations contained in this
Agreement. Taking into account its personnel and resources, Buyer is
knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in shares presenting an investment
decision like that involved in the purchase of the Purchased Shares, including
investments in securities issued by the Company, and has requested, received,
reviewed and considered all information it deems relevant in making an informed
decision to purchase the Purchased Shares. Buyer is acquiring the Purchased
Shares for its own account for investment only and with no present intention of
distributing any of the Purchased Shares and has no arrangement or understanding
with any other persons regarding the distribution of the Purchased Shares. Buyer
will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take
a pledge of) any of the Purchased Shares except in compliance with the
Securities Act and applicable state securities laws, the rules and regulations
promulgated thereunder and the terms and conditions hereof. Buyer is an
"accredited investor" within the meaning of Rule 501 of Regulation D promulgated
under the Securities Act.
Section 4.2 Organization and Qualification. Buyer is a corporation duly
incorporated, validly existing and in good standing under the Laws of the State
of New York. Buyer has all requisite corporate power and authority to enter into
this Agreement, the Registration Rights Agreement and the Stockholders Agreement
and to perform its obligations hereunder and thereunder.
Section 4.3 Authority Relative to Agreements. The execution, delivery
and performance of this Agreement, the Registration Rights Agreement and the
Stockholders Agreement have been duly and validly authorized by all necessary
corporate action on the part of Buyer and no other corporate proceedings are
necessary therefor. This Agreement, the Registration Rights Agreement and the
Stockholders Agreement have been duly executed and delivered by Buyer and
constitute the valid and legally binding obligations of Buyer, enforceable
against Buyer in accordance with their terms (except as enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting creditors' rights generally and by general principles
of equity).
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<PAGE> 21
Section 4.4 No Conflicts. Neither the execution and delivery by Buyer
of this Agreement, the Registration Rights Agreement and the Stockholders
Agreement nor the performance by Buyer of its obligations hereunder or
thereunder will conflict with, result in a breach of the terms, conditions or
provisions of the Charter Documents of Buyer, or require any consent, approval
or other action by or any notice to or filing by Buyer with any Governmental
Authority pursuant to any Laws applicable to Buyer, except to the extent that
any such conflict or breach or lack of consent, approval, action, notice or
filing would not reasonably be expected to (i) affect the validity or
enforceability of this Agreement, the Registration Rights Agreement or the
Stockholders Agreement, or (ii) impair the ability of Buyer to perform any of
its material obligations under this Agreement, the Registration Rights Agreement
or the Stockholders Agreement.
Section 4.5 Interested Shareholder. Buyer represents and warrants that,
except to the extent that Buyer may be deemed to have a beneficial ownership
interest in, or be the direct or indirect owner of, Company Common Stock (or
"voting power" or "voting stock" with respect thereto, or entitled to exercise
or direct the exercise of the foregoing) owned by GenAmerica or any of its
direct or indirect Subsidiaries (including, without limitation, EIM) under
Section 351.407 or 351.459 of the Missouri Revised Statutes or under the Rights
Agreement as a result of the execution and delivery of the General American
Agreement, at no time from March 1, 1993 through the date hereof has Buyer,
alone or as part of a group, been, within the meaning of Section 351.407 or
351.459 of the Missouri Revised Statutes or the Rights Agreement, the
"beneficial owner" or the direct or indirect owner of, or entitled to exercise
or direct the exercise of, twenty percent (20%) or more of the Company's then
outstanding "voting power" and/or "voting stock."
Section 4.6 No Reliance on Projections. The purchase of the Purchased
Shares and the consummation of the transactions contemplated hereby by Buyer are
not done in reliance by Buyer upon any projections as to future financial
performance or condition or business prospects prepared by the Company or any of
its Subsidiaries or any of their Affiliates.
ARTICLE V
COVENANTS
Section 5.1 Confidentiality. Buyer agrees that all confidential or
proprietary information of the Company provided to it pursuant to this Agreement
shall be kept confidential, and Buyer shall not use such information except in
connection with the consummation of the transactions contemplated by this
Agreement and shall not disclose such information to any persons other than the
directors, officers, employees, financial advisors, investors, lenders, legal
advisors, accountants, consultants and Affiliates of Buyer who reasonably need
to have access to the confidential or proprietary information and who are
advised of the confidential or proprietary nature of such information and who
agree for the benefit of the Company (in writing, with respect to
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<PAGE> 22
financial advisors, investors, lenders, legal advisors, accountants and
consultants) to be bound hereby; provided, however, the foregoing obligation of
Buyer as to disclosure shall not (i) relate to any such information that (x) is
or becomes generally available other than as a result of unauthorized disclosure
by Buyer or by persons to whom Buyer has made such information available, or (y)
is or becomes available to Buyer on a non-confidential basis from a third party
that is not, to Buyer's knowledge, bound by any other confidentiality agreement
or obligation with the Company, or (ii) prohibit disclosure of any such
information if required by Law.
Section 5.2 Public Announcements. Subject to each party's disclosure
obligations imposed by Law and any stock exchange or similar rules and the
confidentiality provisions contained in Section 5.1, the Company and Buyer will
cooperate with each other in the development and distribution of all news
releases and other public information disclosures with respect to this
Agreement, the Registration Rights Agreement, the Stockholders Agreement and any
of the transactions contemplated hereby or thereby. If a party is required by
Law or any stock exchange or similar rule to issue a news release or other
public announcement, it shall advise the other party in advance thereof and
cooperate with the other party to cause a mutually agreeable release or
announcement to be issued.
Section 5.3 Information and Access. So long as Buyer and its
Subsidiaries and Affiliates continue to hold in the aggregate at least 1,000,000
shares of Company Common Stock purchased pursuant to this Agreement (and so
certify in writing to the Company following the Company's written request
therefor), the Company and each of the Material Subsidiaries shall afford to
Buyer and its accountants, counsel and other representatives full and reasonable
access during normal business hours (and at such other times as the parties may
mutually agree) to its properties, books, contracts, commitments, records and
personnel and shall furnish promptly to Buyer (i) a copy of each report,
schedule, form, statement and other document filed or received by it pursuant to
the requirements of the Securities Laws, and (ii) all other information
concerning their businesses, personnel and the Company Properties as Buyer may
reasonably request from time to time.
Section 5.4 Use of Proceeds. The Company will apply the proceeds of the
sale of the Purchased Shares solely for general corporate purposes.
Section 5.5 Further Assurances. The Company and Buyer agree that, from
time to time, whether before, at or after any Closing Date, each of them will
execute and deliver such further instruments of conveyance and transfer and take
such other action as may be necessary to carry out the purposes and intents
hereof.
Section 5.6 Legend. Buyer agrees that the certificates representing the
Purchased Shares may bear legends substantially to the effect that the Purchased
Shares have not been registered under the Securities Act or state securities
Laws and may not be resold without registration or delivery of a legal opinion
reasonably satisfactory to the Company from counsel who is reasonably
satisfactory to the Company that registration is not required.
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ARTICLE VI
CLOSING DELIVERIES
Section 6.1 Company's Deliveries to Buyer. At the Closing, the Company
will deliver, or cause to be delivered, to Buyer the following (to the extent
any such delivery is not waived in writing by Buyer):
(a) Purchased Shares. A certificate representing the Purchased Shares,
free and clear of all Liens, with all necessary share transfer and other
documentary stamps attached, and the Purchased Shares shall be listed on the New
York Stock Exchange, Inc.
(b) Secretary's Certificate. A certificate executed by the Secretary of
the Company dated the Closing Date, which certifies that (i) attached is a true,
correct and complete copy of the Articles of Incorporation of the Company and
each of the Material Subsidiaries, as amended, certified as of a recent date by
the Secretary of State or equivalent Government Authority in the jurisdiction of
incorporation or organization; (ii) attached is a true, correct and complete
copy of the Bylaws of the Company and each of the Material Subsidiaries, as in
full force and effect; (iii) attached are certificates issued by the appropriate
Government Authority evidencing the good standing of the Company and each
Material Subsidiary in its jurisdiction of incorporation or organization; (iv)
attached are true, correct and complete copies of certificates of authority to
conduct insurance business issued by the appropriate Government Authorities with
respect to the Company and each Material Subsidiary in each jurisdiction in
which the Company or such Material Subsidiary conducts any insurance business;
(v) attached are true, correct and complete resolutions of the Board authorizing
this Agreement, the Registration Rights Agreement and the Stockholders
Agreement, and authorizing the acquisition by Buyer of the Purchased Shares
(which constitutes all action necessary for the representations in Section 3.13
to be true and correct); (vi) such resolutions were duly adopted, are in full
force and effect and have not been rescinded or amended; (vii) there are no
proceedings or other action for dissolution, liquidation or reorganization of
the Company or any of its Material Subsidiaries; and (viii) the incumbency and
specimen signatures of officers who have executed instruments, agreements and
other documents in connection with transactions contemplated hereby.
(c) Consents. The consents set forth in Schedule 3.4.
(d) Registration Rights Agreement and Stockholders Agreement. The
Registration Rights Agreement as executed by the Company, and the Stockholders
Agreement as executed by the Company, EIM, GALIC and GenAmerica.
(e) Legal Opinion. Opinions dated the Closing Date covering the matters
set forth in Exhibits C-1, C-2 and C-3 attached hereto from Bryan Cave LLP,
counsel for the Company, Lewis, Rice & Fingersh, L.C., counsel for GenAmerica,
and the General Counsel of the Company, respectively.
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<PAGE> 24
(f) Counsel Fees. The fees of Dewey Ballantine LLP, counsel for the
Buyer, not to exceed $50,000, as an offset to the payment of the Purchase Price,
as set forth in Section 6.2(a).
(g) Listing. Notice of listing of the Purchased Shares on the New York
Stock Exchange, Inc., subject to official notice of issuance.
(h) Receipt. An acknowledgement by the Company of its receipt of the
Purchase Price, less the fees of Dewey Ballantine LLP, counsel for Buyer.
Section 6.2 Buyer's Deliveries to the Company At the Closing, Buyer
will deliver, or cause to be delivered, to the Company the following:
(a) Purchase Price. The Purchase Price by wire transfer of immediately
available funds in U.S. dollars to the account or accounts specified by the
Company, less the fees of Dewey Ballantine LLP, counsel for Buyer, not to exceed
$50,000.
(b) Registration Rights Agreement and Stockholders Agreement. The
Registration Rights Agreement as executed by Buyer, and the Stockholders
Agreement as executed by Buyer.
ARTICLE VII
SURVIVAL
Section 7.1 Survival. All representations, warranties and covenants and
agreements of the parties contained herein (including the schedules or exhibits
hereto), or any certificate, document or other instrument delivered in
connection herewith, shall survive the Closing for three years, regardless of
any investigation made at any time by Buyer or on its behalf, and shall
thereupon expire except with respect to claims asserted at or prior to such
time; provided, however, that (i) the representations and warranties set forth
in Sections 3.2 and 3.3(c) shall survive the Closing forever, regardless of any
investigation made at any time by Buyer or on its behalf, and (ii) the covenant
in Section 5.1 shall survive the Closing but shall expire on the earlier of the
date of the Closing (as defined in the General American Agreement) under the
General American Agreement or one year after the disposition of the Purchased
Shares by Buyer; provided, further, that (i) such representations, warranties
and covenants and agreements shall apply only with respect to the transactions
contemplated by this Agreement and shall not apply to, or be used or relied on
in any other transaction, including, without limitation, the transactions
contemplated by the General American Agreement.
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ARTICLE VIII
EXPENSES
Section 8.1 Expenses. The Company agrees to pay, and hold Buyer
harmless against liability for the payment of, (a) Buyer's reasonable
out-of-pocket costs and legal fees arising in connection with the negotiation
and execution of this Agreement, the Registration Rights Agreement and the
Stockholders Agreement, and the Closing and completion of the transactions
contemplated by this Agreement, including, without limitation, reasonable fees
and expenses of up to $50,000 of Dewey Ballantine LLP, counsel for Buyer; (b)
stamp and other transfer taxes which may be payable in respect of (i) the
execution and delivery of this Agreement, and (ii) the issuance of the Purchased
Shares; (c) reasonable fees and expenses (including, without limitation,
reasonable attorneys' fees) incurred in respect of the enforcement by Buyer of
any material rights granted to Buyer under this Agreement, the Registration
Rights Agreement or the Stockholders Agreement, provided that Buyer succeeds in
any material respect in the enforcement of such rights; and (d) reasonable fees
and expenses (including, without limitation, reasonable attorneys' fees)
incurred in connection with any consent relating to material matters requested
to be given by Buyer pursuant to this Agreement, the Registration Rights
Agreement or the Stockholders Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other party. Copies of executed counterparts
transmitted by telecopy, telefax or other electronic transmission service shall
be considered original executed counterparts for purposes of this Section,
provided receipt of copies of such counterparts is confirmed.
Section 9.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Missouri without reference
to the choice of Law principles thereof, except for the validity of corporate
action of the parties hereto, which shall be governed by and construed in
accordance with the Laws of the jurisdiction of incorporation or organization of
such party.
Section 9.3 Entire Agreement. This Agreement (including the schedules
and exhibits hereto), and the certificates, instruments and other documents
delivered pursuant hereto, contain the entire agreement between the parties
hereto with respect to the subject matter hereof and there are no agreements,
understandings, representations or warranties between the parties hereto other
than those set forth or referred to herein. This Agreement is not intended to
confer upon any person not a party hereto any rights or remedies hereunder.
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Section 9.4 Notices. All notices and other communications hereunder
shall be sufficiently given for all purposes hereunder if in writing and
delivered personally, sent by documented overnight delivery service or, to the
extent receipt is confirmed, telecopy, telefax or other electronic transmission
service to the appropriate address or number as set forth below. If sent via
overnight delivery service, such notice is deemed to have been received on the
next succeeding Business Day. Notices to the Company shall be addressed to:
Reinsurance Group of America, Incorporated
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63107-6039
Attention: Jack B. Lay, Executive Vice President and
Chief Financial Officer
Telecopy: 636-736-7839
with copies to:
Reinsurance Group of America, Incorporated
c/o General American Life Insurance Company
700 Market Street
St. Louis, Missouri 63101
Attention: James E. Sherman, Esq.
Telecopy: 314-444-0510
Bryan Cave LLP
One Metropolitan Square
211 North Broadway
St. Louis, Missouri 63102-2750
Attention: R. Randall Wang, Esq.
Telecopy: 314-259-2020
Notices to Buyer shall be addressed to:
Metropolitan Life Insurance Company
One Madison Avenue
New York, New York 10010
Attention: William Wheeler, Treasurer
Telecopy: 212-578-0266
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Attention: Linda E. Ransom, Esq.
Telecopy: 212-259-6333
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<PAGE> 27
Either party may change the person, address and number to which notices are to
be sent by giving written notice of any such change in the manner provided
herein.
Section 9.5 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by either
party hereto without the prior written consent of the other party, except that
Buyer may assign its rights and obligations hereunder to a Subsidiary or
Affiliate of Buyer without the consent of the Company (provided that Buyer shall
remain, become or be deemed the primary obligor hereunder if such Subsidiary or
Affiliate has a net worth of less than $50 million at the time of such
assignment or thereafter and, in all other cases, such Subsidiary or Affiliate
shall execute a counterpart of this Agreement as if it were the original party
hereto and assumes Buyer's obligations hereunder pursuant to an instrument in
form and substance reasonably satisfactory to the Company).
Section 9.6 Headings. The headings contained in this Agreement are
inserted for convenience of reference only and will not affect the meaning or
interpretation of this Agreement. All references to Sections, Articles or
Exhibits mean Sections or Articles of or Exhibits to this Agreement unless
otherwise stated.
Section 9.7 Amendments and Waivers. This Agreement shall not be
modified or amended except by an instrument or instruments in writing signed by
the party against whom enforcement of any such modification or amendment is
sought. Either party hereto may waive compliance by the other party hereto with
any term or provision hereof on the part of such other party hereto to be
performed or complied with only by an instrument in writing. The waiver by any
party hereto of a breach of any term or provision hereof shall not be construed
as a waiver of any subsequent breach.
Section 9.8 Severability. Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
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<PAGE> 28
IN WITNESS WHEREOF, this Agreement has been duly executed by or on
behalf of each of the parties hereto as of the date first above written.
REINSURANCE GROUP OF AMERICA, INCORPORATED
By: /s/ Jack B. Lay
----------------------------------------
Name: Jack B. Lay
Title: Executive Vice President and
Chief Financial Officer
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ William J. Wheeler
----------------------------------------
Name: William J. Wheeler
Title: Senior Vice-President & Treasurer
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<PAGE> 1
EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of November 23,
1999, by and between REINSURANCE GROUP OF AMERICA, INCORPORATED, a Missouri
corporation (the "Company"), and METROPOLITAN LIFE INSURANCE COMPANY, a New York
mutual life insurance company ("Buyer").
W I T N E S S E T H :
WHEREAS, the Company and Buyer have entered into a Stock Purchase Agreement
(the "Stock Purchase Agreement"), dated as of November 23, 1999, pursuant to
which Buyer shall purchase from the Company shares of the Company's common
stock, par value $0.01 per share (the "Company Common Stock"); and
WHEREAS, the Company wishes to execute and deliver this Agreement in order
to induce Buyer to purchase shares of Company Common Stock under the Stock
Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and the Stock Purchase Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the following
respective meanings:
"Affiliate" shall mean, with respect to any person, any other person who
directly or indirectly controls, is controlled by or is under common control
with such first person. The term "control", for the purposes of this definition,
means the power to direct or cause the direction of the management or policies
of the controlled person, whether through stock ownership, contract or
otherwise.
"Business Day" shall mean any day other than (i) a Saturday, (ii) a Sunday
or (iii) any other day on which banks are authorized or required to close in New
York, New York.
"Buyer" shall have the meaning set forth in the first paragraph hereof and,
with respect to any Registrable Securities transferred on or after the date
hereof in accordance with Section 9.7, shall also have the meaning set forth in
Section 9.7.
"Company" shall have the meaning set forth in the first paragraph hereof.
"Company Common Stock" shall have the meaning set forth in the recitals
hereto.
<PAGE> 2
"Confidential Information" shall have the meaning set forth in Section
9.12.
"Controlling persons" shall have the meaning set forth in Section 7.1.
"Counterpart" means a counterpart to this Agreement in the form of Exhibit
A, pursuant to the execution of which a person shall become bound by all of the
terms and conditions of this Agreement.
"Damages" shall have the meaning set forth in Section 7.1.
"Demand Notice" shall have the meaning set forth in Section 2.1.
"Demand Registration" shall have the meaning set forth in Section 2.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Filing Date" shall mean the date that is thirty (30) days after the date
of the Demand Notice.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"person" shall mean an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a business
trust, a joint venture, an unincorporated organization or a government entity or
any department, agency or political subdivision thereof.
"Piggyback Registration" shall have the meaning set forth in Section 3.1.
"prospectus" means the prospectus included in a registration statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
The terms "register, "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement by the SEC.
"Registrable Securities" shall mean any shares of Company Common Stock
acquired by Buyer pursuant to the Stock Purchase Agreement or its permitted
transferees; provided, that a Registrable Security ceases to be a Registrable
Security when (i) it is registered under the Securities Act and disposed of in
accordance with the registration statement covering it, (ii) it is sold or
transferred in accordance with the requirements of Rule 144 (or similar
provisions then in effect) promulgated by the SEC under the Securities Act
("Rule 144"), or (iii) it is eligible to be
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<PAGE> 3
sold or transferred under Rule 144 without being subject to any holding period
or volume limitations thereunder.
"Registration Expenses" shall have the meaning set forth in Section 6.1.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Shelf Registration Statement" means a registration statement of the
Company on Form S-3 or any other appropriate form under the Securities Act
including any prospectus included therein, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or deemed to be incorporated by
reference in such registration statement, for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 promulgated under the
Securities Act (or similar provisions then in effect) that (i) covers all of the
Registrable Securities pursuant to the provisions of this Agreement, and (ii)
sets forth a plan of distribution as determined by Buyer in accordance with
Section 2.2.
"Stock Purchase Agreement" shall have the meaning set forth in the recitals
hereto.
"Subsidiary" shall mean with respect to any person, any other person, of
which such first person, directly or indirectly, owns or controls 50% or more of
the securities or other interests entitled to vote under ordinary circumstances
in the election of directors or others performing similar functions with respect
to such other person, or to otherwise control such other person.
"Termination Date" shall have the meaning set forth in Section 2.1.
ARTICLE II
DEMAND REGISTRATION
Section 2.1. Request for Shelf Registration. Buyer may make one (1) written
request to the Company (a "Demand Notice") that the Company register the offer
and sale of all or any part of Buyer's Registrable Securities under the
Securities Act (a "Demand Registration"). Upon receipt of the Demand Notice, the
Company shall: (i) prepare and file with the SEC on or prior to the Filing Date
a Shelf Registration Statement, (ii) use its reasonable best efforts to cause
such Shelf Registration Statement to become effective and (iii) use its
reasonable best efforts to keep such Shelf Registration Statement continuously
effective until the earlier of (A) the date when all Registrable Securities
covered by the Shelf Registration Statement have been sold, (B) the date on
which the Registrable Securities covered by the Shelf Registration Statement are
eligible to be sold or transferred under Rule 144 without being subject to any
holding period or volume limitations thereunder (provided that Buyer has
received an opinion of counsel to the Company who is reasonably acceptable to
Buyer covering the matters referred to in this clause (B) and such opinion is
reasonably satisfactory to Buyer) and (C) the second (2nd) anniversary of the
date hereof (the "Termination Date").
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<PAGE> 4
Section 2.2. Selection of Plan of Distribution; Underwriters. The offering
of such Registrable Securities pursuant to the Shelf Registration Statement
shall be in the form of either (x) an underwritten offering or (y) through the
use of brokers or in privately negotiated transactions, in either case as
selected by Buyer within no more than five (5) Business Days following the date
of the Demand Notice. In the event that Buyer elects that the offering be an
underwritten offering, Buyer shall also select one or more nationally recognized
firms of investment bankers that is or are reasonably acceptable to the Company,
to act as the lead managing underwriter or underwriters in connection with such
offering and shall select any additional investment bankers or managers to be
used in connection with such offering. The Company and Buyer shall enter into a
customary underwriting agreement with such underwriter(s) (and Buyer may at its
option require that the representations, warranties and covenants of the Company
to or for the benefit of the underwriter(s) also be made for the benefit of
Buyer).
Section 2.3. Permitted Delay in Filing and Suspensions of Sales.
Notwithstanding the foregoing, if the Company determines in good faith that such
registration, or further sales under an effective Shelf Registration Statement,
will (1) have a material detrimental effect, as reasonably determined in good
faith by the Board of Directors of the Company, on the completion of a
transaction currently being negotiated or a plan currently being considered by
the Board of Directors of the Company that would, if completed, be material to
the Company and its Subsidiaries taken as a whole at the time the right to delay
or withhold efforts or suspend sales is exercised (whether or not a final
decision has been made to undertake such transaction or plan), or (2) involve
initial or continuing disclosure obligations that are not in the best interests
of the Company's stockholders, as reasonably determined in good faith by the
Board of Directors of the Company, then upon advance written notice to Buyer (a)
the Company may delay in filing the Shelf Registration Statement and may
withhold efforts to cause the Shelf Registration Statement to become effective,
but not more than once and for not more than thirty (30) days, or (b) the
Company may request Buyer to, and Buyer shall, suspend any further sales under
the Shelf Registration Statement (or under a registration statement of the
Company which includes Registrable Securities pursuant to Section 3.1), but not
more than twice in any two-year period and for not more than thirty (30) days
each. Notwithstanding anything to the contrary that may be contained in this
Agreement, if the Company exercises its right to delay or to withhold efforts or
suspend sales, the Company shall use its reasonable best efforts to have the
Shelf Registration Statement or such other registration statement filed or
declared effective, or amended (or otherwise bringing the Shelf Registration
Statement or such other registration statement current with appropriate Exchange
Act filings), as the case may be, at the earliest reasonably practicable date
after the Company's reasons for delaying or withholding efforts or suspending
sales are no longer applicable (but subject to the time limitations in the
immediately preceding sentence).
ARTICLE III
PIGGYBACK REGISTRATIONS
Section 3.1. Right to Piggyback. Whenever the Company proposes to register
(including on behalf of a selling stockholder) any shares of Company Common
Stock under the
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<PAGE> 5
Securities Act (except for the registration of shares of Company Common Stock to
be offered pursuant to an employee benefit plan on Form S-8 or pursuant to a
registration made on Form S-4, or any successor forms or any form that does not
include substantially the same information, other than information relating to
selling shareholders or their plan of distribution, that would be required to be
included in a registration statement covering the sale of the Registrable
Securities) at any time other than pursuant to a Demand Registration and the
registration form to be used may be used for the registration of the Registrable
Securities (a "Piggyback Registration"), it will so notify Buyer in writing no
later than the earlier to occur of (i) the tenth (10th) day following the
Company's receipt of notice of exercise of other demand registration rights, or
(ii) thirty (30) days prior to the anticipated date of filing. Subject to the
provisions of Section 3.2, the Company will include in the Piggyback
Registration all Registrable Securities with respect to which the Company has
received written requests for inclusion from Buyer within ten (10) Business Days
after Buyer's receipt of the Company's notice. Buyer may withdraw all or any
part of the Registrable Securities from a Piggyback Registration at any time
before five (5) Business Days prior to the effective date of the Piggyback
Registration. The Company, Buyer and any person who hereafter become entitled to
register its securities in a registration initiated by the Company shall sell
their securities on the same terms and conditions.
Section 3.2. Priority on Piggyback Registrations. If the managing
underwriter advises the Company in writing (a copy of which shall be provided to
Buyer) that a limitation on the total number of securities to be included in the
Piggyback Registration is advisable in order to avoid a likely material and
adverse effect on the success of the offering, the Company will so advise Buyer
and will include the securities in the registration in the following order of
priority: (i) first, all securities the Company or the holder for whom the
Company is effecting the registration, as the case may be, proposes to sell; and
(ii) second, any other securities requested to be included in the registration
(including Registrable Securities), allocated among the holders of such
securities in proportion (as nearly as practicable) to the number of securities
which each holder requested to be included in the Piggyback Registration.
Section 3.3. Underwriters. If any Piggyback Registration is an underwritten
offering, the Company and Buyer shall enter into a customary underwriting
agreement with the underwriter(s) administering the offering. Buyer may not
participate in any Piggyback Registration without (a) agreeing to sell
securities on the basis provided in the underwriting arrangements approved by
the Company, and (b) promptly completing, executing and delivering all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required by the underwriting arrangements.
ARTICLE IV
RESTRICTIONS ON PUBLIC SALES
Section 4.1. Restrictions on Public Sales. The Company agrees not to make
any public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for its equity securities,
including a sale under Regulation D under the Securities Act or under any other
exemption of the Securities Act (except pursuant to registrations on Forms S-8
or S-4 or any successor form), during the two (2) days prior to and the 180 days
after the
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<PAGE> 6
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration unless the managing underwriter(s) agrees otherwise.
ARTICLE V
REGISTRATION PROCEDURES
Section 5.1. Obligations of the Company. Whenever the Company is required
to effect or cause the registration of the offer and sale of Registrable
Securities pursuant to Article II or Article III, the Company will use its
reasonable best efforts to effect or cause the registration of the offer and
sale of such Registrable Securities in accordance with the intended method(s) of
disposition thereof as quickly as reasonably practicable, and in connection with
any such request the Company shall:
(a) prepare and file with the SEC a registration statement on the
appropriate form and use its reasonable best efforts to cause the registration
statement to become effective. A reasonable time before filing a registration
statement or prospectus or before filing any amendments or supplements thereto,
the Company will furnish to Buyer and Buyer's counsel copies of all documents
proposed to be filed for their review, comment and approval, which comment or
approval shall be delivered within a reasonable time after receipt;
(b) immediately notify Buyer of any stop order threatened or issued by the
SEC and use its reasonable best efforts to prevent the entry of a stop order or,
if entered, to have it rescinded or otherwise removed;
(c) subject to Section 2.3, prepare and file with the SEC such amendments,
supplements and post-effective amendments to the registration statement and the
corresponding prospectus necessary to keep the registration statement
continuously effective until (x) the Termination Date in the case of a Shelf
Registration Statement or (y) otherwise for 180 days or such shorter period as
may be required to sell all Registrable Securities covered by the registration
statement; and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by the registration statement during
each period in accordance with Buyer's intended method of disposition as set
forth in the registration statement;
(d) furnish to Buyer a sufficient number of copies of the registration
statement, each amendment and supplement thereto (in each case including all
exhibits), the corresponding prospectus (including each preliminary prospectus),
and such other documents as Buyer may reasonably request to facilitate the
disposition of Buyer's Registrable Securities;
(e) register or qualify the Registrable Securities under securities or
blue sky laws of jurisdictions in the United States as Buyer requests and do any
and all other reasonable acts and things that may be necessary or advisable to
enable Buyer to consummate the disposition of its Registrable Securities in such
jurisdiction, provided that the Company shall not be required to subject itself
to service of process or taxation in such jurisdictions;
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<PAGE> 7
(f) notify Buyer of any event as a result of which the prospectus or any
document incorporated therein by reference contains an untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which such
statements were made, and, subject to Section 2.3, prepare a supplement or
amendment to the prospectus or any such document incorporated therein so that
thereafter the prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading in light of the circumstances under which such statements were
made;
(g) cause all registered Registrable Securities to be listed on each
securities exchange, if any, on which similar securities issued by the Company
are then listed;
(h) provide an institutional transfer agent and registrar and a CUSIP
number for all Registrable Securities on or before the effective date of the
registration statement;
(i) enter into such reasonably customary agreements (including an
underwriting agreement in reasonably customary form) and take all other actions
in connection with those agreements as Buyer or the underwriter(s), if any,
reasonably request to expedite or facilitate the disposition of the Registrable
Securities (and Buyer may at its option require that the representations,
warranties and covenants of the Company to or for the benefit of the
underwriter(s) also be made for the benefit of Buyer);
(j) make reasonably available for inspection by Buyer, any underwriter
participating in any disposition pursuant to the registration statement, and any
attorney, accountant or other agent of Buyer or such underwriter, all financial
and other records, pertinent corporate documents, and properties of the Company,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by Buyer or such underwriter, attorney,
accountant or other agent in connection with the registration statement;
provided that an appropriate confidentiality agreement reasonably satisfactory
to the Company is executed by Buyer and such underwriter, attorney, accountant
or other agent;
(k) in connection with any underwritten offering, obtain a "cold comfort"
letter from the Company's independent public accountants in customary form and
covering those matters customarily covered by "cold comfort" letters as Buyer or
the managing underwriter reasonably requests, addressed to Buyer, the Company
and the underwriter(s);
(l) in connection with any underwritten offering, furnish, at the request
of Buyer or any underwriter(s) of the offering, an opinion of counsel
representing the Company for the purposes of the registration, in the form and
substance customarily given to underwriters in an underwritten public offering
and reasonably satisfactory to counsel representing Buyer and the underwriter(s)
of the offering, addressed to Buyer and the underwriter(s);
(m) comply with all applicable rules and regulations of the SEC, and, if
applicable, make available to its security holders, no later than 90 days after
the end of the 12-month period beginning with the first day of the Company's
first quarter commencing after the effective date of a registration statement,
an earnings statement complying with the provisions of Section 11(a)
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<PAGE> 8
and Rule 158 of the Securities Act and covering the period of at least twelve
(12) months, but not more than eighteen (18) months, beginning with the first
month after the effective date of the registration statement;
(n) cooperate with Buyer and each underwriter participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;
(o) in connection with any underwritten offering, participate, to the
extent reasonably requested by Buyer or the managing underwriter or underwriters
for the offering, in customary efforts to sell the securities under the
offering, including, without limitation, participating in "road shows," unless
the Company demonstrates to Buyer's reasonable satisfaction that such
participation will materially interfere with the management of the Company's
business; and
(p) take all other steps reasonably necessary to effect the registration of
the Registrable Securities contemplated hereby.
Section 5.2. Buyer Information. In the event of any registration by the
Company, the Company may request from time to time that Buyer furnish to the
Company information regarding Buyer and its affiliates and associates and the
distribution of the securities subject to the registration, and Buyer shall
furnish all such information reasonably requested by the Company.
Section 5.3. Notice by Buyer. Whenever Buyer has requested that any
Registrable Securities be registered pursuant to this Agreement, Buyer shall
notify the Company, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of the happening of any event which to
its knowledge relates to matters concerning Buyer or its Affiliates or
associates, as a result of which the prospectus included in the registration
statement contains an untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Section 5.4. "Market Stand-Off" Agreement. Buyer, if reasonably requested
in writing by the managing underwriter(s) of an underwritten public offering of
the Company's securities, agrees not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise transfer or dispose of any
Registrable Securities owned by Buyer (other than (y) to a Subsidiary or
Affiliate of Buyer, or (z) Registrable Securities included in such public
offering) without the prior written consent of such managing underwriter(s)
during a period of up to two (2) days prior to and 180 days following the
effective date of such underwritten registration of the Company's securities,
but only to the extent that Registrable Securities owned by Buyer have not been
requested to be included in such underwritten registration following the
Company's compliance with Article III. Such agreement shall be in writing in
form reasonably satisfactory to such managing underwriter(s), and may be
included in the underwriting agreement. The Company may impose stop-transfer
instructions with respect to the securities subject to the foregoing restriction
until the end of the required stand-off period and shall lift such stop-transfer
restrictions immediately upon the end of such period.
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ARTICLE VI
REGISTRATION EXPENSES
Section 6.1. Generally. All Registration Expenses incident to the Company's
performance of or compliance with this Agreement shall be paid by the Company.
The term "Registration Expenses" includes, without limitation, all registration
filing fees, professional fees and other expenses of the Company's compliance
with federal and state securities laws (including fees and disbursements of
counsel for the underwriter(s) in connection with state securities law
qualifications and registrations), printing expenses, messenger, telephone and
delivery expenses; fees and disbursements of counsel for the Company and
reasonable fees and disbursements of one counsel for Buyer; fees and
disbursements of all independent certified public accountants (including the
expenses relating to any audit or "cold comfort" letters required by or incident
to the performance of the obligations contemplated by this Agreement); fees and
expenses of the underwriter(s) (excluding discounts and commissions); fees and
expenses of any special experts retained by the Company at the reasonable
request of the managing underwriter(s) in connection with the registration and
as shall be customary in transactions of that kind; and applicable stock
exchange and NASD registration and filing fees. The term "Registration Expenses"
does not include Buyer's internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), any fees or disbursements of any other counsel for Buyer, or
the underwriting discounts or commissions or transfer taxes applicable to the
Registrable Securities, all of which shall be paid by Buyer.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Indemnification by the Company. In the event of any
registration of Registrable Securities under the Securities Act pursuant to this
Agreement, to the fullest extent permitted by law, the Company agrees to
indemnify Buyer, its officers, directors, trustees, partners, employees,
advisors and agents, and each person who controls Buyer (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act), together
with all officers, directors, trustees, partners, employees, advisors and agents
of such controlling person (collectively, "Controlling persons"), against all
losses, claims, damages, liabilities, attorneys' fees, costs and expenses and
expenses of investigating and defending any claims (collectively, "Damages")
that arise out of, or are based upon, any untrue or allegedly untrue statement
of a material fact contained in any registration statement under which such
Registrable Securities were registered under the Securities Act or any
prospectus or preliminary prospectus contained therein or any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading in light of
the circumstances under which such statements were made, except to the extent
the untrue statement or omission resulted from information that Buyer furnished
in writing to the Company expressly for use therein and except to the extent
that the Company advised Buyer not to dispose of any Registrable Securities
pursuant to Section 2.3 hereof and Buyer disregarded such advice. In connection
with a firm or best efforts underwritten offering, to the extent customarily
required by the managing underwriter, the Company will indemnify the
underwriters, their officers, directors,
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<PAGE> 10
trustees, partners, employees, advisors and agents, and each person who controls
the underwriters (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act), and each of the Underwriter's Controlling
persons, to the extent customary in such agreements.
Section 7.2. Indemnification by Buyer. In the event of any registration of
Registrable Securities under the Securities Act pursuant to this Agreement, to
the fullest extent permitted by law, Buyer agrees to indemnify the Company, its
officers, directors, trustees, partners, employees, advisors and agents, and
each person who controls the Company (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act), and each of the Company's
Controlling persons, against any Damages that arise out of, or are based upon
any untrue or allegedly untrue statement of a material fact contained in any
registration statement under which such Registrable Securities were registered
under the Securities Act or any prospectus or preliminary prospectus contained
therein or any omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements contained therein not
misleading in light of the circumstances under which such statements were made,
but only to the extent that the untrue statement or omission is contained in or
omitted from any information Buyer furnished in writing to the Company expressly
for use therein and only in an amount not exceeding the net proceeds received by
Buyer with respect to securities sold pursuant to such registration statement
and except to the extent that the Company advised Buyer not to dispose of any
Registrable Securities pursuant to Section 2.3 hereof and Buyer disregarded such
advice. In connection with a firm or best efforts underwritten offering, to the
extent customarily required by the managing underwriter, Buyer will indemnify
the underwriters, their officers, directors, trustees, partners, employees,
advisors and agents, and each person who controls the underwriters (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act),
and each of the underwriters' Controlling persons, to the extent customary in
such agreements.
Section 7.3. Indemnification Proceedings. Any person entitled to
indemnification under this Agreement will (i) give prompt (but in no event more
than thirty (30) days') notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided, however, that failure to so
promptly notify the indemnifying party shall not relieve the indemnifying party
from liability except to the extent the indemnifying party is prejudiced
thereby) and (ii) unless in the indemnified party's reasonable judgment a
conflict of interest may exist between the indemnified and indemnifying parties
with respect to the claim, permit the indemnifying party, at its expense, to
assume the defense of the claim with counsel reasonably satisfactory to the
indemnified party. If the indemnifying party does not assume the defense, the
indemnifying party will not be liable for any compromise or settlement made
without its consent or judgment consented to without its consent, but any such
consent shall not be unreasonably withheld. An indemnifying party who is not
entitled to or elects not to assume the defense of a claim will not be under an
obligation to pay the reasonable fees and expenses of more than one counsel for
all parties indemnified by the indemnifying party with respect to the claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between the indemnified party and any other indemnified party
with respect to the claim, in which event the indemnifying party shall be
obligated to pay the reasonable fees and expenses of no more than one additional
counsel for the indemnified parties. Notwithstanding anything to the contrary
that may be contained in this Section 7.3, the indemnifying party shall not,
without the indemnified
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<PAGE> 11
party's prior written consent, which consent shall not be unreasonably withheld,
settle or compromise any claim or consent to the entry of any judgment in
respect thereof which imposes any future obligation on the indemnified party or
which does not include, as an unconditional term thereof, the giving by the
claimant or plaintiff to the indemnified party, a release from all liability in
respect of such claim.
Section 7.4. Contribution. If the indemnification provided for in Sections
7.1 or 7.2 is unavailable to an indemnified party in respect of any Damages
referred to therein, then each indemnifying party thereunder shall contribute to
the amount paid or payable by such indemnified party as a result of such Damages
in such proportion as is appropriate to reflect the relative fault of and
relative benefit to the Company and Buyer in connection with the statements or
omissions that resulted in such Damages, as well as any other relevant equitable
considerations. The relative fault of the Company and Buyer 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 or by Buyer and the
parties' relative intent and knowledge. The parties hereto agree that it would
not be just and equitable if contribution pursuant to this Section 7.4 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in the immediately
preceding sentence. Notwithstanding anything herein to the contrary, Buyer shall
not be required to contribute any amount in excess of the amount by which the
net proceeds of the offering (before deducting expenses, if any) received by
Buyer exceeds the amount of any Damages that Buyer 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
ARTICLE VIII
SECURITIES ACT AND EXCHANGE ACT FILINGS
Section 8.1. Securities Act and Exchange Act Filings. The Company covenants
that it will promptly file all documents required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations promulgated by
the SEC thereunder, including, without limitation, pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, and it will take such further action as
Buyer reasonably may request, all to the extent required from time to time, so
that the Company will qualify for registration on Form S-3 and to enable Buyer
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, or (ii) any similar rule or regulation hereafter promulgated by
the SEC. Upon the request of Buyer, the Company will deliver to Buyer a written
statement as to whether it has complied with Rule 144's or any successor rule's
requirements.
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ARTICLE IX
MISCELLANEOUS
Section 9.1. Recapitalizations, Exchanges, etc. Notwithstanding anything to
the contrary that may be contained in this Agreement, the provisions of this
Agreement shall apply to the full extent set forth herein with respect to (i)
the shares of Company Common Stock, (ii) any and all shares of voting common
stock of the Company, into which the shares of Company Common Stock are
converted, exchanged or substituted in any recapitalization or other capital
reorganization by the Company and (iii) any and all equity securities of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in conversion of, in exchange for or in substitution of, the shares of Company
Common Stock, and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, recapitalizations and the like occurring
after the date hereof.
Section 9.2. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other party. Copies of executed counterparts
transmitted by telecopy, telefax or other electronic transmission service shall
be considered original executed counterparts for purposes of this Section,
provided receipt of copies of such counterparts is confirmed.
Section 9.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to the choice of law principles thereof, except for the validity of corporate
action by the parties hereto, which shall be governed by and construed in
accordance with the laws of the jurisdiction of incorporation or organization of
such party.
Section 9.4. Entire Agreement. This Agreement, and the certificates,
instruments and other documents delivered pursuant hereto, contain the entire
agreement between the parties hereto with respect to the subject matter hereof
and there are no agreements, understandings, representations or warranties
between the parties hereto other than those set forth or referred to herein.
This Agreement is not intended to confer upon any person not a party hereto any
rights or remedies hereunder.
Section 9.5. Notices. All notices and other communications hereunder shall
be sufficiently given for all purposes hereunder if in writing and delivered
personally, sent by documented overnight delivery service or, to the extent
receipt is confirmed, telecopy, telefax or other electronic transmission service
to the appropriate address or number as set forth below. If sent via overnight
delivery service, notice is deemed to have been received on the next succeeding
Business Day. Notices to the Company shall be addressed to:
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<PAGE> 13
Reinsurance Group of America, Incorporated
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63107-6039
Attention: Jack B. Lay, Executive Vice President
and Chief Financial Officer
Telecopy: 636-736-7839
with copies to:
Reinsurance Group of America Incorporated
c/o General American Life Insurance Company
700 Market Street
St. Louis, Missouri 63101
Attention: James E. Sherman, Esq.
Telecopy: 314-444-0510
Bryan Cave LLP
One Metropolitan Square
211 North Broadway
St. Louis, Missouri 63102-2750
Attention: R. Randall Wang, Esq.
Telecopy: 314-259-2020
Notices to Buyer shall be addressed to:
Metropolitan Life Insurance Company
One Madison Avenue
New York, New York 10010
Attention: William J. Wheeler, Treasurer
Telecopy: 212-578-0266
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Attention: Linda E. Ransom, Esq.
Telecopy: 212-259-6333
Either party may change the person, address and number to which notices are to
be sent by giving written notice of any such change in the manner provided
herein.
Section 9.6. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement may not be assigned by either party hereto
without the prior written consent of the other party, except that Buyer may
assign its rights hereunder to a Subsidiary or Affiliate of Buyer (and such
Subsidiary or Affiliate shall execute a Counterpart and deliver same to the
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<PAGE> 14
Company prior to or at the time of assignment) or in accordance with Section 9.7
without the consent of the Company.
Section 9.7. Transfer of Registration Rights. Provided that the Company is
given written notice by Buyer prior to or at the time of such transfer stating
the name and address of the transferee and identifying the securities with
respect to which the rights under this Agreement are being assigned, the
registration rights under this Agreement may be transferred with the transfer of
Registrable Securities. Notwithstanding the foregoing, if such transfer is
subject to covenants, agreements or other undertakings restricting
transferability thereof, the registration rights under this Agreement shall not
be transferred in connection with such transfer unless such transfer complies
with all such covenants, agreements and other undertakings. In all cases, such
registration rights shall not be transferred unless the transferee thereof
executes a Counterpart and delivers same to the Company. Upon a transfer in
compliance with this Section 9.7, all references in this Agreement to "Buyer"
shall be deemed to refer in addition to any transferee hereunder with respect to
such transferred Registrable Securities. Notwithstanding anything to the
contrary that may be contained in this Agreement, in the event that Buyer does
not transfer all of the Registrable Securities or transfers the Registrable
Securities to more than one transferee, the holders of the Registrable
Securities thereafter shall be entitled to take any action hereunder by majority
vote of all Registrable Securities or by majority vote of the Registrable
Securities which are the subject of such registration, as appropriate.
Section 9.8. Headings. The headings contained in this Agreement are
inserted for convenience of reference only and will not affect the meaning or
interpretation of this Agreement. All references in this Agreement to Sections,
Articles or Exhibits mean Sections or Articles of or Exhibits to this Agreement
unless otherwise stated.
Section 9.9. Amendments and Waivers. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Either
party hereto may waive compliance by the other party hereto with any term or
provision hereof on the part of such other party hereto to be performed or
complied with only by an instrument in writing. The waiver by any party hereto
of a breach of any term or provision hereof shall not be construed as a waiver
of any subsequent breach.
Section 9.10. Severability. Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
Section 9.11. No Inconsistent Agreements. The Company represents and
warrants that it has not granted to any person the right to request or require
the Company to register any securities issued by the Company other than pursuant
to this Agreement and that certain Registration Rights Agreement dated as of
April 15, 1993 between the Company and General American Life Insurance Company.
Except with the prior written consent of Buyer, the Company will not enter into
any agreement with respect to its securities that shall grant to any person
registration rights that in any way conflict with or are prior in right to the
rights provided under this Agreement.
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<PAGE> 15
Section 9.12. Confidentiality. Notwithstanding anything to the contrary in
this Agreement, Buyer may not use any Confidential Information received by it
from the Company pursuant to this Agreement in violation of the Exchange Act or
reproduce, disclose or disseminate such information to any person (other than
its directors, officers, employees, financial advisors, legal advisors,
accountants, consultants and other persons having a reasonable reason for
knowing the contents of such information and who agree for the benefit of the
Company (in writing, with respect to financial advisors, legal advisors,
accountants and consultants) to be bound hereby), unless such information is (i)
available to the public generally (other than by the recipient in violation of
any confidentiality agreement or obligation with the Company), (ii) available to
Buyer or such recipient on a non-confidential basis from a third party that is
not, to Buyer's or such recipient's knowledge, bound by any other
confidentiality agreement or obligation with the Company or (iii) required to be
disclosed by Buyer or such recipient by a governmental body or regulatory agency
or by law. "Confidential Information" shall mean only the following information:
(i) confidential or proprietary information of the Company supplied by or on
behalf of the Company which Buyer requested in writing to the Company pursuant
to this Agreement or the Stock Purchase Agreement and (ii) the fact that the
Company requested that Buyer suspend further sales pursuant to Section 2.3.
Notwithstanding anything to the contrary in this Agreement or the Stock Purchase
Agreement, Buyer and the Company agree that the Company shall not furnish to
Buyer any of its confidential or proprietary information, including without
limitation, in advance of the filing of any registration statement (including
the Shelf Registration Statement) or prospectus or any amendment or supplement
thereof, except upon receipt of a written request from Buyer.
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<PAGE> 16
IN WITNESS WHEREOF, this Agreement has been duly executed by or on behalf
of each of the parties hereto as of the date first above written.
REINSURANCE GROUP OF AMERICA, INCORPORATED
By: /s/ Jack B. Lay
-----------------------------------------
Name: Jack B. Lay
Title: Executive Vice President and
Chief Financial Officer
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ William J. Wheeler
-----------------------------------------
Name: William J. Wheeler
Title: Senior Vice-President & Treasurer
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<PAGE> 17
EXHIBIT A TO REGISTRATION RIGHTS AGREEMENT
COUNTERPART
THIS INSTRUMENT forms part of the Registration Rights Agreement (the
"Agreement"), dated as of November 23, 1999, by and between REINSURANCE GROUP OF
AMERICA, INCORPORATED, a Missouri corporation (the "Company"), and METROPOLITAN
LIFE INSURANCE COMPANY, a New York mutual life insurance company, which
Agreement permits execution (including by facsimile) by counterpart. The
undersigned hereby acknowledges having received a copy of the Agreement (which
is annexed hereto as Schedule I) and having read the Agreement in its entirety,
and for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound, hereby agrees that the
terms and conditions of the Agreement binding upon and inuring to the benefit of
Buyer shall be binding upon and inure to the benefit of the undersigned and its
successors and permitted assigns as if it were the original Buyer thereunder.
IN WITNESS WHEREOF, the undersigned has executed this instrument this ____
day of ______________, ____.
__________________________________
(Signature of Transferee)
__________________________________
(Name in Block Letters)
<PAGE> 1
EXHIBIT 99.4
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of November 23,
1999, by and among METROPOLITAN LIFE INSURANCE COMPANY, a New York mutual life
insurance company ("Buyer"), GENAMERICA CORPORATION, a Missouri corporation
("GenAmerica"), GENERAL AMERICAN LIFE INSURANCE COMPANY, a Missouri insurance
company and wholly-owned subsidiary of GenAmerica ("GALIC"), EQUITY INTERMEDIARY
COMPANY, a Missouri corporation and a wholly-owned subsidiary of GALIC ("EIM"),
and REINSURANCE GROUP OF AMERICA, INCORPORATED, a Missouri corporation 53.5% of
the outstanding common stock of which is owned by EIM (the "Company").
W I T N E S S E T H:
WHEREAS, the Company and Buyer have entered into a Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated as of November 23, 1999,
pursuant to which the Company shall sell to Buyer, and Buyer shall purchase from
the Company, shares of the Company's common stock, par value $0.01 per share
(the "Company Common Stock");
WHEREAS, GenAmerica, GALIC, EIM and the Company wish to execute and
deliver this Agreement in order to induce Buyer to purchase shares of Company
Common Stock under the Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the representations, warranties,
agreements and covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the following
respective meanings:
"Affiliate" shall mean, with respect to any person, any other person
who directly or indirectly controls, is controlled by or is under common control
with such person. The term "control", for the purposes of this definition, means
the power to direct or cause the direction of the management or policies of the
controlled person.
"Affiliated Stockholder" shall mean any Affiliate of GenAmerica, GALIC
or EIM who at such time is the record or beneficial owner of any Company Common
Stock.
"Board" shall have the meaning set forth in Section 4.1(a).
"Business Day" shall mean any day other than (i) a Saturday, (ii) a
Sunday or (iii) any other day on which banks are authorized or required to close
in New York, New York.
<PAGE> 2
"Buyer" shall have the meaning set forth in the first paragraph hereof
and, with respect to any successor or assign of Buyer that becomes such in
accordance with Section 6.7 hereof, such successor or assign.
"Buyer Affiliates" shall have the meaning set forth in Section 4.1(a).
"Company" shall have the meaning set forth in the first paragraph
hereof.
"Company Common Stock" shall have the meaning set forth in the
recitals hereto.
"Company Plans" shall have the meaning set forth in Section 3.11(b) of
the Stock Purchase Agreement.
"Company Preferred Stock" shall have the meaning set forth in Section
3.3(a) of the Stock Purchase Agreement.
"EIM" shall have the meaning set forth in the first paragraph hereof.
"Exempt Transfers" means (a) any transfers of Company Common Stock
made (i) in connection with a Public Offering or a public offering pursuant to a
registration statement on Form S-4 or any successor form or a tender offer on
Schedule 14D-1, 13E-3 or 13E-4 or any successor form, or (ii) pursuant to Rule
144 under the Securities Act, or (b) any bona fide pledges of Company Common
Stock to any financial institution.
"GALIC" shall have the meaning set forth in the first paragraph
hereof.
"GenAmerica" shall have the meaning set forth in the first paragraph
hereof.
"General American" shall mean General American Mutual Holding Company,
a Missouri mutual insurance holding company.
"General American Agreement" shall mean the Stock Purchase Agreement,
dated as of August 26, 1999, by and between General American and Buyer, as
amended from time to time.
"Offer" shall have the meaning set forth in Section 4.1(a).
"Offered Shares" shall have the meaning set forth in Section 4.1(a).
"person" shall mean an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
business trust, a joint venture, an unincorporated organization or a government
entity or any department, agency or political subdivision thereof.
"Prohibited Transfer" shall have the meaning set forth in Section 3.1.
"Proposed Transferee" shall have the meaning set forth in Section
4.1(a).
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<PAGE> 3
"Public Offering" means an offering of Company Common Stock to the
general public pursuant to a registration statement (other than a registration
statement on Form S-4 or S-8 or any similar or successor form or forms) filed
with and declared effective by the SEC under the Securities Act.
"Remaining Offered Shares" shall have the meaning set forth in Section
4.1(c).
"Rights Agreement" shall mean the Rights Agreement, dated as of May 4,
1993, between the Company and Chase Mellon Shareholder Services, L.L.C. (as
successor to Boatman's Trust Company), as amended.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"Selling Stockholder" shall have the meaning set forth in Section
4.1(a).
"Stock Purchase Agreement" shall have the meaning set forth in the
recitals hereto.
"Subsidiary" shall mean with respect to any person, any other person
of which such first person, directly or indirectly, owns or controls 50% or more
of the securities or other interests entitled to vote under ordinary
circumstances in the election of directors or others performing similar
functions with respect to such other person or to otherwise control such other
person.
"Tag-Along Notice" shall have the meaning set forth in Section 4.1(d).
"Tag-Along Right" shall have the meaning set forth in Section 4.1(b).
"Tag-Along Shares" shall have the meaning set forth in Section 4.1(b).
"Tag-Along Stockholder" shall have the meaning set forth in Section
4.1(b).
"transfer" means and includes any direct or indirect offer for sale,
sale, assignment, transfer, pledge, encumbrance, or other disposition of, or the
subjecting to a security interest of, any Company Common Stock or any
disposition of any Company Common Stock or of any interest therein which would
constitute a sale thereof within the meaning of the Securities Act.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 By the Company. The Company hereby represents and warrants
to Buyer that (i) Schedule 1 correctly and completely sets forth the Company's
capitalization as of the date hereof, indicating the authorized, issued and
outstanding capital stock of the Company and any securities which are
convertible into or exercisable or exchangeable for any capital stock
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<PAGE> 4
of the Company, and (ii) as of the date hereof, the Company is not a party to
any agreement with respect to the holding, voting, acquisition or disposition of
any securities described in the immediately preceding clause (i) except that
2,007,282 shares of Company Common Stock are reserved for issuance pursuant to
the Company Plans and 500,000 shares of Company Preferred Stock are reserved for
issuance pursuant to the Rights Agreement.
Section 2.2 By GenAmerica, GALIC and EIM. GenAmerica, GALIC and EIM
hereby represent and warrant to Buyer that (i) EIM is the sole record and
beneficial owner of 24,131,250 shares of Company Common Stock, (ii) except for
the General American Agreement (as such term is defined in the Stock Purchase
Agreement), such shares of Company Common Stock are not subject to any agreement
or understanding relating to or restricting voting or transfer thereof and (iii)
neither EIM nor any of its Affiliates is a record or beneficial owner of any
capital stock of the Company (or any securities which are convertible into or
exercisable or exchangeable for any capital stock of the Company) other than as
set forth in this Section 2.2.
ARTICLE III
RESTRICTIONS ON TRANSFERS
Section 3.1 Transferees Subject to Agreement. In the event of any
transfer of shares of Company Common Stock or rights to acquire shares of
Company Common Stock by EIM or any Affiliated Stockholder (other than pursuant
to the General American Agreement), the transferee shall hold such shares of
Company Common Stock or rights so acquired with all the rights conferred by, and
subject to all of the restrictions imposed by, this Agreement applicable to the
transferor of such shares of Company Common Stock or rights. In addition, any
transferee of any shares of Company Common Stock or rights shall, as a condition
of the consummation of such transfer, agree to be subject to this Agreement. Any
purported transfer of shares of Company Common Stock or rights in violation of
this Agreement (a "Prohibited Transfer") shall be null and void. The Company
shall not record any Prohibited Transfer on its books and shall not recognize
any equitable or other claim to, or any interest in, shares of Company Common
Stock or rights that are the subject of a Prohibited Transfer on the part of any
person other than the stockholder that attempted to transfer the shares of
Company Common Stock or rights in violation of this Agreement. The Company shall
refuse to record on its books any purported transfer of shares of Company Common
Stock by EIM or any Affiliated Stockholder unless Buyer's written consent to
such transfer has been obtained, which consent shall not be unreasonably
withheld.
Section 3.2 Exceptions to Transfer Restrictions. The prohibitions of
Section 3.1 shall not apply to any Exempt Transfers.
Section 3.3 Restrictive Legends. Each certificate representing shares
of Company Common Stock now or hereafter owned (whether beneficially or of
record) by EIM or any Affiliated Stockholder shall bear a legend substantially
in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO, AND ARE
TRANSFERABLE ONLY UPON COMPLIANCE WITH, THE PROVISIONS OF THE
STOCKHOLDERS AGREEMENT DATED AS OF NOVEMBER 23, 1999 AMONG
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REINSURANCE GROUP OF AMERICA, INCORPORATED AND CERTAIN OF ITS
STOCKHOLDERS. A COPY OF THE ABOVE-REFERENCED AGREEMENT IS ON FILE AT
THE OFFICE OF REINSURANCE GROUP OF AMERICA, INCORPORATED.
Whenever any such shares cease to be subject to this Agreement, the holder
thereof shall be entitled to receive from the Company, without expense, upon
surrender to the Company of the certificates representing such shares, a new
certificate in such holder's name representing such shares of like tenor but
without a legend of the character set forth above.
ARTICLE IV
TAG-ALONG RIGHT
Section 4.1 Tag-Along Right.
(a) Except for Exempt Transfers and without limiting anything
contained in Article III, if at any time and from time to time EIM and/or any
Affiliated Stockholder (collectively, the "Selling Stockholder") proposes to
transfer, in any transaction or series of related transactions, a number of
shares of Company Common Stock and/or rights to acquire (pursuant to conversion,
exchange or other exercise) a number of shares of Company Common Stock
(collectively, the "Offered Shares") equal to no less than five percent (5%) of
the shares then collectively owned (whether beneficially or of record) by such
Selling Stockholder and its Affiliates (counting the Offered Shares issuable
upon the exercise of any right to acquire same as outstanding for purposes of
this Article IV) pursuant to a bona fide, arm's-length offer from a bona fide
third party (the "Proposed Transferee"), the Selling Stockholder shall submit a
notice (an "Offer") to Buyer and its Affiliates who own (whether beneficially or
of record) any shares of Company Common Stock ("Buyer Affiliates"). The Offer
shall disclose (i) the identity of the Selling Stockholder and the Proposed
Transferee, (ii) the total number of Offered Shares proposed to be transferred,
(iii) the total number of shares of Company Common Stock owned by such Selling
Stockholder, (iv) the terms and conditions of the proposed transfer of the
Offered Shares to the Proposed Transferee, including the price per share to be
paid, (v) the terms and conditions of payment offered by the Proposed Transferee
and, in the case of consideration in whole or in part other than cash, the fair
market value thereof as determined promptly and in good faith by the Selling
Stockholder as of the date of the Offer, (vi) the address of the Selling
Stockholder, (vii) that the Proposed Transferee has been informed of the
Tag-Along Right provided for in this Article IV, and (viii) any other material
facts relating to the proposed sale of the Offered Shares to the Proposed
Transferee.
(b) Buyer and the Buyer Affiliates (collectively, the "Tag-Along
Stockholder") shall have the irrevocable right (the "Tag-Along Right") to
require the Selling Stockholder to cause the Proposed Transferee to purchase
from such Tag-Along Stockholder that number of shares of Company Common Stock
held by such Tag-Along Stockholder as is equal to the product of the Offered
Shares multiplied by a fraction, the numerator of which is the number of shares
of Company Common Stock owned (whether beneficially or of record) by such
Tag-Along Stockholder and the denominator of which is the sum of the number of
shares of Company Common Stock owned (whether beneficially or of record) by the
Selling Stockholder
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and all Tag-Along Stockholders who are exercising their Tag-Along Rights (the
"Tag-Along Shares").
(c) The transfer of the Offered Shares (as reduced by the Tag-Along
Shares, the "Remaining Offered Shares") and the Tag-Along Shares shall be for
the same consideration (except as may be determined pursuant to Section 4.1(e)
below) and otherwise on the same terms and conditions (including, without
limitation, seller representations (except any representations specific to a
particular seller), provided that the aggregate liability of the Tag-Along
Stockholder for breaches of representations, warranties and covenants and
agreements contained in the definitive documents relating to such transfer shall
not exceed the sales proceeds received by the Tag-Along Stockholder in such
transfer) for all holders as set forth in the Offer (counting as part of such
consideration any price associated with the exercise of any rights to acquire
Remaining Offered Shares).
(d) The Tag-Along Right shall be exercised by a Tag-Along Stockholder
by notifying the Selling Stockholder and the Company in writing (the "Tag-Along
Notice") within twenty (20) days of its receipt of the Offer of its intention to
sell its Tag-Along Shares. The Tag-Along Notice shall state the number of shares
of Company Common Stock that such Tag-Along Stockholder proposes to include in
such transfer to the Proposed Transferee, which number shall not exceed the
maximum number of shares of Company Common Stock which such Tag-Along
Stockholder would be entitled to include if all Tag-Along Stockholders elected
to participate in the transfer to the fullest extent possible, determined in
accordance with Section 4.1(b). Failure by any Tag-Along Stockholder to deliver
a Tag-Along Notice by the end of such twenty (20) day period shall be deemed to
constitute the election of such Tag-Along Stockholder not to exercise its
Tag-Along Rights.
(e) In the event that the consideration proposed to be paid for the
Offered Shares by the Proposed Transferee shall include any consideration other
than cash, and the Offer includes a fair market value of such non-cash
consideration that the Tag-Along Stockholder objects to, the Tag-Along Notice
shall set forth such objection. If the Selling Stockholder and holders
representing a majority-in-interest of the Tag-Along Stockholders cannot agree
on a valuation within five (5) Business Days following the twenty (20) day
period following the date the Offer was made, then the dispute shall be referred
to a nationally-recognized investment banking firm selected jointly by the
Selling Stockholder and holders representing a majority-in-interest of the
Tag-Along Stockholders. If the Selling Stockholder and holders representing a
majority-in-interest of the Tag-Along Stockholders cannot agree on the selection
of an investment banking firm, then the Selling Stockholder and holders
representing a majority-in-interest of the Tag-Along Stockholders shall each
select one such firm and such firms shall designate a mutually acceptable
investment banking firm with a nationwide reputation to determine the aggregate
value of all consideration proposed to be paid by the Proposed Transferee for
the Offered Shares. The expenses of such investment banking firms shall be paid
one-half by each of the Selling Stockholder and the Tag-Along Stockholders (each
of whom shall pay their pro rata portion of such expenses based upon the number
of Tag-Along Shares that such Tag-Along Stockholder requested to sell). All
determinations made pursuant to this Section 4.1(e) shall be final, conclusive
and binding on the Selling Stockholder and the Tag-Along Stockholders.
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(f) Within forty-five (45) days of the delivery of the Offer to the
Tag-Along Stockholders, the Selling Stockholder shall deliver to each Tag-Along
Stockholder who validly exercises its Tag-Along Right, a notice setting forth
the number of shares of Company Common Stock that such Tag-Along Stockholder
will be entitled to sell to the Proposed Transferee pursuant to this Section
4.1, and the delivery instructions and procedures required to effectuate the
transfer. In the event that any Tag-Along Stockholders do not choose to
participate in the transfer to the fullest extent possible, the Selling
Stockholder shall have the right to include shares of Company Common Stock that
Tag-Along Stockholders would have been entitled to include but did not elect to
include, to the extent that the Selling Stockholder owns the number of such
shares of Company Common Stock.
(g) If the Proposed Transferee does not purchase shares of Company
Common Stock from the Tag-Along Stockholders who exercise their respective
Tag-Along Rights at the same price and on the same terms and conditions as the
Proposed Transferee purchases from the Selling Stockholder, then the Selling
Stockholder shall not be permitted to transfer any shares of Company Common
Stock to the Proposed Transferee in the proposed transfer. The Selling
Stockholder and the Tag-Along Stockholders who validly exercise their respective
Tag-Along Rights shall have the right, for a one hundred twenty (120) day period
following the delivery of the Offer, to transfer to the Proposed Transferee the
shares of Company Common Stock proposed to be transferred on terms and
conditions no more favorable to the Selling Stockholder and such Tag-Along
Stockholders than those stated in the Offer. Any shares of Company Common Stock
that continue to be held by the Selling Stockholder or any such Tag-Along
Stockholders after the earlier of the consummation of the proposed transfer or
the expiration of such one hundred twenty (120) day period shall again be
subject to the provisions of this Section 4.1.
Section 4.2 Costs. All reasonable costs and expenses incurred by any
seller in connection with a transfer under Section 4.1, including, without
limitation, all reasonable attorneys' fees, costs and disbursements and any
reasonable finders' fees or brokerage commissions, shall be allocated pro rata
among the stockholders transferring shares of Company Common Stock in such
transfer, with each bearing that portion of such costs and expenses equal to the
aggregate of such costs and expenses multiplied by a fraction, the numerator of
which is the amount of the gross proceeds received by such stockholder from such
transfer, and the denominator of which is the total amount of the gross proceeds
received by all stockholders from such transfer. Such costs and expenses shall
include the fees of no more than one counsel for Buyer, and no more than one
counsel for GenAmerica, GALIC and EIM collectively.
ARTICLE V
CERTAIN COVENANTS
Section 5.1 Actions Requiring Consent of Buyer. For so long as Buyer
and its Affiliates collectively continue to own (whether beneficially or of
record) shares of Company Common Stock representing at least 5% of the shares of
Company Common Stock outstanding as of the date hereof, the Company shall not
undertake the following actions without the prior written consent of Buyer which
shall not be unreasonably withheld or delayed: (i) enter into, or waive or
materially modify any provision of, any registration rights agreement except for
such of the foregoing as which would not be reasonably likely to materially
adversely affect the rights of
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Buyer or its Affiliates hereunder, in Buyer's reasonable determination, or (ii)
directly or indirectly redeem or repurchase any shares of Company Common Stock
owned by EIM or any Affiliated Stockholder unless such redemption or repurchase
is available to all shareholders of the Company for the same consideration and
on the same terms and conditions, including without limitation any open market
repurchase program, or, in the case of an Affiliated Stockholder who is an
individual, unless such redemption or repurchase is in connection with an
employee or director benefit plan in the ordinary course of business.
Section 5.2 Further Assurances. Each party hereto shall do and perform
or cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
Section 5.3 Additional Remedies. In case any one or more of the
covenants and/or agreements set forth in this Agreement shall have been breached
by any party hereto, the party or parties entitled to the benefit of such
covenants or agreements may proceed to protect and enforce their rights either
by proceeding in equity and/or by action at law, including, but not limited to,
an action for damages as a result of any breach; and/or an action for specific
performance of any such covenant or agreement contained in this Agreement,
and/or a temporary or permanent injunction, in any case without showing any
actual damage and without establishing, in the case of an equitable proceeding,
that the remedy at law is inadequate and without the need to post any bond or
other undertaking as a condition to obtaining preliminary injunctive relief. The
rights, powers and remedies of the parties under this Agreement are cumulative
and not exclusive of any other right, power or remedy which such parties may
have under any other agreement or law. No single or partial assertion or
exercise of any right, power or remedy of a party hereunder shall preclude any
other or further assertion or exercise thereof.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Termination. This Agreement shall terminate upon the
earlier to occur of (i) the sale of all of Buyer's shares of Company Common
Stock pursuant to a Public Offering effectuated pursuant to the Registration
Rights Agreement or pursuant to Rule 144 under the Securities Act, (ii) at the
time when Buyer, its Affiliates and any person who purchases shares of Company
Common Stock from Buyer in accordance with Section 6.7(ii) hereof own in the
aggregate fewer than 478,469 shares of Company Common Stock purchased pursuant
to the Stock Purchase Agreement (and Buyer, its Affiliates or such persons agree
to deliver to the Company, within 30 days after receipt of a written request
from the Company, a written certification of its respective ownership of such
shares of Company Common Stock, but the Company shall not make such request (a)
earlier than June 30, 2000 or (b) within 180 days after the date of any other
such request), or (iii) the completion of Buyer's purchase of all of the
outstanding shares of capital stock of GenAmerica from General American pursuant
to the General American Agreement.
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Section 6.2 Share Calculations. Unless otherwise specified, all share
calculations made pursuant to this Agreement shall be determined on a primary
(i.e., undiluted) basis.
Section 6.3 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each party hereto and delivered to the other parties. Copies of executed
counterparts transmitted by telecopy, telefax or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Section, provided receipt of copies of such counterparts is confirmed.
Section 6.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to the choice of law principles thereof, except for the validity of corporate
action of the parties hereto, which shall be governed by and construed in
accordance with the laws of the jurisdiction of incorporation or organization of
such party.
Section 6.5 Entire Agreement; Amendment; Waiver. This Agreement, and
the certificates, instruments and other documents delivered pursuant hereto,
contain the entire agreement among the parties hereto with respect to the
subject matter hereof and there are no agreements, understandings,
representations or warranties among the parties hereto other than those set
forth or referred to herein. This Agreement is not intended to confer upon any
person not a party hereto any rights or remedies hereunder.
Section 6.6 Notices. All notices and other communications hereunder shall be
sufficiently given for all purposes hereunder if in writing and delivered
personally, sent by documented overnight delivery service or, to the extent
receipt is confirmed, telecopy, telefax or other electronic transmission service
to the appropriate address or number as set forth below. Notices to the Company
shall be addressed to:
Reinsurance Group of America, Incorporated
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63107-6039
Attention: Jack B. Lay, Executive Vice President and
Chief Financial Officer
Telecopy: 636-736-7839
with copies to:
Reinsurance Group of America, Incorporated
c/o General American Life Insurance Company
700 Market Street
St. Louis, Missouri 63101
Attention: James E. Sherman
Telecopy: 314-444-0510
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Bryan Cave LLP
One Metropolitan Square
211 North Broadway
St. Louis, Missouri 63102-2750
Attention: R. Randall Wang, Esq.
Telecopy: 314-259-2020
Notices to Buyer or any of its Affiliates shall be addressed
to:
Metropolitan Life Insurance Company
One Madison Avenue
New York, New York 10010
Attention: William Wheeler, Treasurer
Telecopy: 212-578-0266
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Attention: Linda E. Ransom, Esq.
Telecopy: 212-259-6333
Notices to GenAmerica, GALIC and EIM shall be addressed to:
General American Life Insurance Company
700 Market Street
St. Louis, Missouri 63101-1887
Attention: Robert Banstetter
Telecopy: 314-444-0510
with a copy to:
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019-4513
Attention: Alexander M. Dye, Esq.
Telecopy: 212-424-8500
Each party may change the person, address and number to which notices
are to be sent by giving written notice of any such change in the manner
provided herein.
Section 6.7 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by any
party hereto without the prior written consent of the other parties, except that
Buyer may assign its rights hereunder without the consent of the other parties
hereto to (i) a Subsidiary or Affiliate of Buyer or (ii) a person who purchases
shares of Company Common Stock from Buyer other than in a Public Offering or
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other than pursuant to Rule 144 under the Securities Act, and who assumes the
obligations of Buyer hereunder pursuant to an agreement delivered to the Company
in form and substance reasonably satisfactory to the Company.
Section 6.8 Headings. The headings contained in this Agreement are
inserted for convenience of reference only and will not affect the meaning or
interpretation of this Agreement. All references to Sections, Articles or
Schedules contained herein mean Sections or Articles of or Schedules to this
Agreement unless otherwise stated.
Section 6.9 Amendments and Waivers. This Agreement may not be modified
or amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Each
party hereto may waive compliance by any other party hereto with any term or
provision hereof on the part of such other party hereto to be performed or
complied with only by an instrument in writing. The waiver by any party hereto
of a breach of any term or provision hereof shall not be construed as a waiver
of any subsequent breach.
Section 6.10 Severability. Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
Section 6.11 Registration Rights Agreement. GALIC acknowledges that it
is the Holder of a majority of the outstanding Registrable Securities (as
"Holder" and "Registrable Securities" are defined in the Registration Rights
Agreement dated as of April 15, 1993 between the Company and GALIC (the "GALIC
Registration Rights Agreement")), and GALIC hereby (i) consents to the Company's
execution and delivery of and performance under the Registration Rights
Agreement dated as of November 23, 1999 between the Company and Buyer (the
"Buyer Registration Rights Agreement") and (ii) waives any breaches at any time
under the GALIC Registration Rights Agreement resulting from the Company's
execution and delivery of or performance under the Buyer Registration Rights
Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by or on
behalf of each of the parties hereto as of the date first above written.
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ William J. Wheeler
-----------------------------------------------
Name: William J. Wheeler
Title: Senior Vice-President & Treasurer
GENAMERICA CORPORATION
By: /s/ Robert J. Banstetter
-----------------------------------------------
Name:
Title:
GENERAL AMERICAN LIFE INSURANCE
COMPANY
By: /s/ Robert J. Banstetter
-----------------------------------------------
Name:
Title:
EQUITY INTERMEDIARY COMPANY
By: /s/ Mathew P. McCauley
-----------------------------------------------
Name:
Title:
REINSURANCE GROUP OF AMERICA, INCORPORATED
By: /s/ Jack B. Lay
-----------------------------------------------
Name:
Title:
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SCHEDULE 1
CAPITALIZATION OF THE COMPANY
75,000,000 shares of Company Common Stock authorized, with 45,151,264 shares of
Company Common Stock issued and outstanding and 1,117,320 shares of Company
Common Stock held by the Company in its treasury.
10,000,000 shares of Preferred Stock, par value $0.01 per share, authorized,
with no shares of Preferred Stock of the Company issued and outstanding.
Options to purchase 1,704,922 shares of Company Common Stock.
