EXHIBIT 11
EQUITY INTERMEDIARY COMPANY
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SALE AGREEMENT
Dated as of December 11, 2003
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Series A Cumulative Preferred Stock
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SALE AGREEMENT
Dated as of December 11, 2003
MetLife, Inc.
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Attention: Treasurer
Dear Sirs:
The undersigned, Equity Intermediary Company, a Missouri corporation (the
"Company"), hereby agrees with you as follows:
Section 1. Authorization of Issue of Shares. The Company has duly
authorized the issue of its Series A Cumulative Preferred Stock $1,000 par value
per share (the "Series A Preferred Shares"), consisting of 125,000 authorized
shares. The express terms and provisions of the Series A Preferred Shares,
including the preferences, privileges and voting and other special rights
thereof and the qualifications, limitations or restrictions thereon, are set
forth in a certificate setting forth resolutions of the Board of Directors of
the Company providing for the creation and designation of said Series A
Preferred Shares (said certificate being herein called the "Series A Certificate
of Designation") as filed in the office of the Secretary of State of the State
of Missouri on December 11, 2003. The Articles of Incorporation of the Company,
as supplemented by said Series A Certificate of Designation, are herein called
the "Articles of Incorporation".
Section 2. Sale. Subject to the terms and conditions herein set forth, the
Company hereby agrees to issue and sell to you, and, subject to such terms and
conditions and in reliance upon the representations and warranties of the
Company set forth herein, you agree to purchase from the Company 93,402 Series A
Preferred Shares in exchange for 2,532,600 shares of the Common Stock, $.01 par
value per share, of Reinsurance Group of America Incorporated ("RGA"), Missouri
corporation (the "RGA Shares").
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The closing (the "Closing") of the purchase and sale of such Series A
Preferred Shares shall take place on December 16, 2003 (the "Closing Date"), or
such other date as shall be mutually agreed on by the Company and you. It is
anticipated that, at the time of the Closing, another of your subsidiaries will
also transfer its shares of the common stock of RGA to the Company. At the
Closing, the Company will deliver to you one or more stock certificates
representing the aggregate number of Series A Preferred Shares purchased by you
at such Closing, against delivery to the Company by you of the RGA Shares. Such
certificates shall be registered in your name for the entire number of Series A
Preferred Shares purchased by you, unless prior to the Closing you designate a
nominee, in whose name such Series A Preferred Shares shall be registered. If,
at the Closing, the certificates representing such Series A Preferred Shares to
be purchased by you shall fail to be delivered or the conditions to such Closing
set forth in Section 4 shall not have been fulfilled to your satisfaction, you
shall, at your election, be relieved of all of your obligations under this
Agreement. The delivery of the RGA Shares shall be made either by (i) the
delivery to the Company of one or more stock certificates registered in your
name, accompanied by stock powers duly executed in blank, and/or (ii) free
delivery of the shares as a Depository Trust Company entry,together with any
other documentation reasonably necessary to effectuate the transfer of the RGA
Shares.
Section 3. Conditions to Sale. Your obligation to consummate the
transactions herein described is subject to the fulfillment to your reasonable
satisfaction of the following conditions:
Section 3.1. Certificate of Designation; Certificate of Incorporation. The
resolutions set forth in the Series A Certificate of Designation shall be in
full force and effect and there shall have been no change or amendment to the
Articles of Incorporation of the Company other than such as shall be
satisfactory in form and substance to you.
Section 3.2. Authorization of Sale. You shall have received a certified
copy of the resolutions of the Board of Directors of the Company, which
resolutions shall be satisfactory to you, and which shall authorize the
transactions herein described.
Section 3.3. Approvals. All approvals or filings required to be obtained
or made from or with the Secretary of State of the State of Missouri in
connection with the transactions herein contemplated shall have been obtained.
Section 3.4. Representations True. The representations and warranties in
Section 4 shall be true on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of the
Closing Date.
Section 3.5. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
reasonably satisfactory to you and you shall have received all such counterpart
original or certified or other copies of such documents as you may reasonably
request.
Section 4. Representations and Warranties.
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The Company represents and warrants that:
Section 4.1. Organization, Authority and Good Standing. The Company is a
duly organized and validly existing corporation in good standing under the laws
of Missouri and has full power and authority to own the properties and assets
and to carry on the business which it now owns and carries on. The Company is
duly qualified and in good standing as a foreign corporation in each
jurisdiction wherein the nature of the property owned or leased by it or the
nature of the business transacted by it makes such qualification necessary.
Section 4.2. Financial Statements. You have been furnished with copies of
the balance sheet and income statement of the Company at September 30, 2003 for
the fiscal period ended on said date, certified by the Company's Chief Financial
Officer.
Said financial statements, including the related schedules and notes, to
the Company's best knowledge and belief, are, in all material respects, complete
and correct and fairly present (a) the financial condition of the Company as at
the date of said statements and (b) the results of the operations of the Company
for the fiscal period ended on said date, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved.
Section 4.3. No Material Changes. Except as has been previously disclosed
to you, there has been no material and adverse change in the business,
operations, properties, prospects, assets or condition, financial or other, of
the Company subsequent to September 30, 2003.
Section 4.4. No Conflicts. Neither the execution and delivery of this
Agreement by the Company nor the consummation by the Company of the transactions
herein contemplated, nor compliance by the Company with the terms, conditions
and provisions hereof and of the Series A Certificate of Designation will
violate any provision of law or rule or regulation thereunder or any order,
injunction or decree of any court or other governmental body to which the
Company is a party or by which it is bound, or conflict with or result in a
breach of any of the terms, conditions or provisions of the Articles of
Incorporation or by-laws of the Company or any agreement to which the Company is
a party or by which it is bound. Any consent of the stockholders of the Company
required in connection with the execution and filing of the Series A Certificate
of Designation by the Company has been duly given and no other consent of the
stockholders is required in connection with the issuance of the Series A
Preferred Shares or the execution and delivery of this Agreement.
Section 4.5. Litigation. Except as previously disclosed to you in writing,
there are no actions, suits or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company , at law or in equity or
before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, or
before any arbitrator of any kind, which involve any of the transactions herein
contemplated or the likelihood of any material and adverse change in the
business, operations, properties, prospects, assets or condition, financial or
other, of the Company; and the Company is
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not in default or violation of any judgment, order, writ, injunction, decree or
award which would have a material and adverse effect on the business,
operations, properties, prospects, assets or condition, financial or other, of
the Company, or any statute, rule or regulation of any court, arbitrator or
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign.
Section 4.6. Restrictive Agreements. The Company is not a party to, or
bound by, any Instrument pursuant to which the Company's legal or contractual
right to declare or pay dividends on, to make any other distribution with
respect to, or to redeem or purchase any of, the Series A Preferred Shares (or
any equity security of the Company, ranking prior to, or on a parity with, the
Series A Preferred Shares as to (a) the payment of dividends, (b) the purchase,
redemption or other acquisition of any such shares or security by sinking fund
or otherwise, or (c) the distribution of assets upon liquidation, dissolution or
winding up) is (i) absolutely prohibited, or (ii) directly restricted by a
provision restricting payment of dividends thereon, the purchase, redemption or
other acquisition thereof, or the making of distributions with respect thereto,
or (iii) in any way indirectly restricted[, except as a consequence of the
Company's (1) incurring indebtedness for borrowed money or otherwise incurring
indebtedness or (2) failure to comply with or meet any financial or other
covenant contained in one or more Instruments and not of the character referred
to in the foregoing clause (ii).
Section 4.7. Capitalization. The Company's authorized stock presently
consists of 30,000 shares of Common Stock and 125,000 shares of Preferred Stock,
of which 125,000 shares have been designated "Series A Cumulative Preferred
Stock". All of the shares of Common Stock and such Preferred Stock have been
validly authorized. The outstanding shares of Common Stock are fully paid and
non-assessable. The Series A Cumulative Preferred Shares to be acquired pursuant
to this Agreement, when so acquired, will be validly issued and fully paid and
non-assessable.
Section 4.8. Governmental Action. All approvals or filings required to be
obtained or made from or with the Secretary of State of the State of Missouri in
connection with the transactions herein contemplated have been obtained and no
additional notice to, or action of, or filing with, any governmental or public
body or authority is required to authorize, or is otherwise required in
connection with, the execution, delivery and performance of this Agreement and
the consummation of the transactions herein contemplated.
Section 4.9. Offering of Series A Preferred Shares. Neither the Company
nor any agent acting on its behalf has, either directly or indirectly, sold or
offered for sale or disposed of, or attempted or offered to dispose of, the
Series A Preferred Shares or any part thereof, or any similar securities of the
Company, to, or has solicited any offers to buy any thereof from or has
otherwise approached or negotiated in respect thereof with, any Person or
Persons other than you; and the Company agrees that neither it nor any agent
acting on its behalf will sell or offer for sale or dispose of, or attempt or
offer to dispose of, any thereof to, or solicit any offers to buy any thereof
from, or otherwise approach or negotiate in respect thereof with, any Person or
Persons so as thereby to bring the issuance of the Series A Preferred Shares
within the provisions of Section 5 of the Securities Act of 1933, as amended.
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Section 4.10. Corporate Acts and Proceedings. This Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action by the Company. This Agreement has been duly
executed and delivered by the Company and is the Company's legal, valid and
binding obligation, enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws. All corporate action
necessary for the authorization, creation, issuance, and delivery of the Series
A Preferred Shares has been taken on the part of the Company.
Section 5. Your Representation. This Agreement is made with you in
reliance upon your representation to the Company (which, by your acceptance
hereof, you confirm) that you are acquiring the Series A Preferred Shares for
your own account for the purpose of investment and not with a view to, or for
sale in connection with, the distribution thereof nor with any present intention
of distributing or selling such Series A Preferred Shares.
Section 6. Covenants. The Company covenants and agrees that so long as you
hold any Series A Preferred Shares:
Section 6.1. Restrictive Agreements. Without the consent of the holders of
all of the outstanding Series A Preferred Shares, the Company will not become a
party to, or bound by, any Instrument pursuant to which the Company's legal or
contractual right to declare or pay dividends on, to make any other distribution
with respect to, or to redeem or purchase any of, the Series A Preferred Shares
(or any equity security of the Company, ranking prior to, or on a parity with,
the Series A Preferred Shares as to (a) the payment of dividends, (b) the
purchase, redemption or other acquisition of any such shares or security by
sinking fund or otherwise, or (c) the distribution of assets upon liquidation,
dissolution or winding up) would be (i) absolutely prohibited, or (ii) directly
restricted by a provision restricting payment of dividends thereon, the
purchase, redemption or other acquisition thereof, or the making of
distributions with respect thereto or (iii) in any way indirectly restricted,
except as a consequence of the Company's (1) incurring indebtedness for borrowed
money or otherwise incurring indebtedness or (2) failure to comply with or meet
any financial or other covenant contained in one or more Instruments and not of
the character referred to in the foregoing clause (ii).
Section 6.2. Financial Statements; Inspection. (a) The Company will
deliver to you, upon request, so long as you (or a nominee designated by you)
shall hold any of the Series A Preferred Shares:
(i) within one hundred and twenty (120) days after the close of each
of the Company's fiscal years, a certificate of the Company's Chief Financial
Officer to the effect that the unaudited balance sheet as of the end of such
fiscal year and income statement for the fiscal year then ended present fairly
the financial position as of that date and the results of operations for the
fiscal year then ended, and are prepared in conformity with generally accepted
accounting principles; and
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(ii) within sixty (60) days after the close of each quarterly period
(except the last) of each of the Company's fiscal years, the unaudited balance
sheet and income statement of the Company for the period from the beginning of
such fiscal year to the end of such quarter, setting forth in comparative form
the corresponding figures as of the end of and for the corresponding period of
the preceding fiscal year, and prepared in conformity with generally accepted
accounting principles; and
(iii) concurrently with the statements described in the preceding
clauses, the written statement of a responsible officer of the Company familiar
with the financial statements of the Company that such officer has no knowledge
of any default by the Company in the fulfillment of any of the terms, covenants,
provisions or conditions of this Agreement, the Series A Preferred Shares or the
Series A Certificate of Designation (or any other provision of the Certificate
of Incorporation relating to the Series A Preferred Shares), or if such officer
shall have obtained knowledge of any such default such officer shall disclose in
such statement the default or defaults and the nature thereof.
(b) Inspection. The Company will permit you, so long as you (or a
nominee designated by you) shall hold any of the Series A Preferred Shares, to
visit and inspect any of its properties, its books of account, and to discuss
the affairs, finances and accounts of the Company with the officers thereof, all
at such reasonable times and as often as you may reasonably request.
Section 6.3. Maintenance of Company Office; Register. The Company will
maintain an office or agency at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (or such other place in the United States of America as the Company may
designate in writing to the registered holders of the Series A Preferred Shares)
where notices, presentations and demands to or upon the Company in respect of
this Agreement or the Series A Preferred Shares may be given or made.
Section 6.4. Exchange of Stock Certificates. Upon surrender by you of any
certificate representing Series A Preferred Shares for exchange at the office of
the Company or its agent referred to in Section 6.3, the Company at its expense
(other than for transfer taxes) will issue in exchange therefor one or more new
certificates, in such denomination or denominations as may be requested, for the
same aggregate number of Series A Preferred Shares represented by the
certificate so surrendered and registered as you may request.
Section 6.5. Loss, Theft, Destruction or Mutilation of Stock Certificates.
Upon receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of any certificate representing any of the Series A
Preferred Shares held by you, and (in case of loss, theft or destruction) of
indemnity satisfactory to it, and upon surrender and cancellation of such
certificate, if mutilated, the Company at its expense will make and deliver to
you in lieu of such certificate a new certificate of like tenor and for an equal
number of Series A Preferred Shares. Your unsecured agreement of indemnity shall
constitute indemnity satisfactory to the Company for the purposes of this
Section 6.5.
Section 6.6. Payment. Notwithstanding any provision to the contrary
contained in any certificate evidencing any of the Series A Preferred Shares or
in the Series A Certificate of
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Designation, the Company will pay all amounts payable to you in respect of the
dividends on the Series A Preferred Shares then held by you in funds immediately
available to such account as you may from time to time designate to the Company
in writing, each such payment being accompanied by sufficient information to
identify the source and application thereof, and all without any presentment of
any certificate evidencing any of the Series A Preferred Shares held by you and
without any notation of such payment being made on said certificate.
Section 7. Definitions. For all purposes of this Agreement, unless the
context otherwise requires:
"Instrument" means any contract, indenture, charter or by-law provision,
authorizing resolution or other agreement or any note, debenture, bond or other
security or instrument, or an amendment to any of the foregoing.
"Person" shall mean an individual, a corporation, a partnership, a limited
liability company, a trust, an unincorporated organization or a government or
any agency or political subdivision thereof.
Section 8. Miscellaneous.
Section 8.1. Notices. Any notice or communication hereunder or with
respect hereto shall be in writing and, if to you, mailed by first class mail,
postage prepaid, or delivered to you, addressed as this Agreement is addressed,
or, if to the Company, mailed by first class mail, postage prepaid, or delivered
to the Company, at its office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Treasurer, or addressed to either party at any other address
in the United States of America that such party may hereafter designate by
written notice to the other party. Any notice so addressed and mailed by
registered or certified mail shall be deemed to be given three business days
after being so mailed.
Section 8.2. Law Governing. This Agreement shall be construed in
accordance with and governed by the laws of the State of Missouri.
Section 8.3. Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement.
Section 8.4. Amendments. This Agreement may not be amended except with the
written consent of both parties hereto.
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If the foregoing is satisfactory to you, please sign the form of
acceptance on the enclosed counterpart of this letter and forward the same to
the Company, whereupon this letter will become a binding agreement between you
and the Company.
Very truly yours,
EQUITY INTERMEDIARY COMPANY
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
The foregoing Agreement is hereby accepted as of the date first above written.
METLIFE, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice-President and Treasurer
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