1
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
=============================================================================
2
TABLE OF CONTENTS
Page
----
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
-i-
3
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
EXHIBITS
Exhibit A Registration Rights Agreement
Exhibit B Stockholders Agreement
Exhibit C-1 Opinion of ▇▇▇▇▇ ▇▇▇▇ LLP
C-2 Opinion of ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇.
C-3 Opinion of the General Counsel of the Company
-ii-
4
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
-iii-
5
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.
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).
-2-
7
"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.
-3-
8
"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 ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholder Services, L.L.C. (as
successor to ▇▇▇▇▇▇▇'▇ 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.
-4-
9
"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
-5-
10
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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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
-6-
11
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
-7-
12
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,
-8-
13
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
-9-
14
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.
-10-
15
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
-11-
16
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
-12-
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
-13-
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
-14-
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
-15-
20
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).
-16-
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
-17-
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.
-18-
23
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 ▇▇▇▇▇ ▇▇▇▇ LLP,
counsel for the Company, ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇., counsel for GenAmerica,
and the General Counsel of the Company, respectively.
-19-
24
(f) Counsel Fees. The fees of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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.
-20-
25
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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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.
-21-
26
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
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇, Executive Vice President and
Chief Financial Officer
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Reinsurance Group of America, Incorporated
c/o General American Life Insurance Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ LLP
One Metropolitan Square
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Telecopy: 314-259-2020
Notices to Buyer shall be addressed to:
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
-22-
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.
-23-
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/ ▇▇▇▇ ▇. ▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Executive Vice President and
Chief Financial Officer
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice-President & Treasurer
-24-