400,000,000 AGGREGATE PRINCIPAL AMOUNT REINSURANCE GROUP OF AMERICA, INCORPORATED UNDERWRITING AGREEMENT
Exhibit 1.1
EXECUTION COPY
$400,000,000 AGGREGATE PRINCIPAL AMOUNT
REINSURANCE GROUP OF AMERICA, INCORPORATED
6.45% SENIOR NOTES DUE 2019
November 3, 2009
Barclays Capital Inc.
UBS Securities LLC
As Representatives of the several
Underwriters named in Schedule 1
UBS Securities LLC
As Representatives of the several
Underwriters named in Schedule 1
| c/o | Barclays Capital Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ UBS Securities LLC ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
Ladies and Gentlemen:
Reinsurance Group of America, Incorporated, a Missouri corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell $400,000,000 aggregate
principal amount of its 6.45% Senior Notes due 2019 (the “Securities”) to Barclays Capital Inc. and
UBS Securities LLC (the “Representatives”) and the other underwriters named in Schedule 1 hereto
(collectively, the “Underwriters”). The Securities will be issued pursuant to a Senior Indenture
dated as of December 19, 2001 (the “Original Indenture”), as supplemented by the Third Supplemental
Senior Indenture to be entered into (the “Supplemental Indenture” and, together with the Original
Indenture as so supplemented, the “Indenture”), in each case between the Company and The Bank of
New York Trust Company, N.A., as successor to The Bank of New York, as trustee (the “Trustee”).
This Agreement and the Indenture are referred to herein collectively as the “Transaction
Agreements”. This is to confirm the agreement among the Company and the Underwriters concerning the
offer, issuance and sale of the Securities.
1. Representations, Warranties and Agreements of the Company. The Company represents,
warrants and agrees with the Underwriters that, unless otherwise specified below, on and as of the
date hereof, to and including the Delivery Date (as defined below):
(a) The Company has filed with the Securities and Exchange Commission (the “Commission”) an
automatic shelf registration statement on Form S-3 (File Nos. 333-156052,
▇▇▇-▇▇▇▇▇▇-▇▇ and 333-156052-02) (the “Registration Statement”), which registration statement
became effective upon filing under Rule 462(e) of the Securities Act of 1933, as amended (the
“Securities Act”). Such registration statement covers the registration of the Securities (among
others) under the Securities Act and has (i) been prepared by the Company in conformity in all
material respects with the requirements of the Securities Act, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the Securities Act. The Registration
Statement is an “automatic shelf registration statement” as defined under Rule 405 of the
Securities Act that has been filed with the Commission not earlier than three years prior to the
date hereof. Copies of the Registration Statement and all exhibits thereto have been delivered by
the Company to you. As used in this Agreement, “Effective Time” means the date and the time as of
which each part of the registration statement on Form S-3 (File Nos. 333-156052, ▇▇▇-▇▇▇▇▇▇-▇▇ and
333-156052-02) (the “Latest Registration Statement”) or the most recent post-effective amendment
thereto, if any, became effective; “Effective Date” means the date of the Effective Time;
“Preliminary Prospectus” means each prospectus included in the Latest Registration Statement, or
amendments thereof, before it became effective under the Securities Act and any prospectus and
prospectus supplement filed with the Commission by the Company with the consent of the Underwriters
pursuant to Rule 424(a) of the Securities Act relating to the Securities; the term “Registration
Statement” means such Latest Registration Statement, as amended as of the Effective Time, including
the Incorporated Documents (as defined below) and all information contained in the final prospectus
relating to the Securities filed with the Commission pursuant to Rule 424(b) of the Securities Act
and deemed to be a part of such registration statement as of the Effective Time pursuant to Rule
430A or Rule 430B of the Securities Act; and “Prospectus” means the prospectus and prospectus
supplement relating to the Securities in the form first used to confirm sales of the Securities (or
in the form made available to the Underwriters by the Company to meet requests of purchasers)
pursuant to Rule 172 or Rule 173 of the Securities Act.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule
405 of the Securities Act (which does not include communications not deemed a prospectus pursuant
to Rule 134 of the Securities Act and historical issuer information meeting the requirements of
Rule 433(e)(2) of the Securities Act) and “Time of Sale Prospectus” means the Preliminary
Prospectus together with any free writing prospectuses, if any, each identified in Schedule 2
hereto, and any other free writing prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Time of Sale Prospectus (except for purposes of 7(a),
7(d), 7(e), 7(f) and 7(g), for which the term “Time of Sale Prospectus” shall not include the free
writing prospectus(es) identified in Item 2 of Schedule 2). Reference made herein to the
Preliminary Prospectus, any free writing prospectus, the Time of Sale Prospectus or the Prospectus
shall be deemed to refer to and include any documents incorporated by reference therein (with
respect only to the Prospectus and the Preliminary Prospectus, pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of the Preliminary Prospectus, any free writing
prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be (such documents, the
“Incorporated Documents”), and any reference to any amendment or supplement to the Preliminary
Prospectus, the Time of Sale Prospectus or the Prospectus shall be deemed to refer to and include
any document filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Exchange Act”) after the date of the
Preliminary Prospectus, the Prospectus, or the date hereof, as the case may be, and incorporated by
reference in the Preliminary Prospectus, the Prospectus, as the case may be; and any reference to
any amendment to the Registration Statement shall be deemed to include any
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annual report of the Company filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any notice of objection or any order preventing or
suspending the use of any of the Preliminary Prospectus, any free writing prospectus, the Time of
Sale Prospectus, the Prospectus or the Registration Statement.
(b) The conditions for use of Form S-3, as set forth in the General Instructions thereto, have
been satisfied or waived.
(c) (i) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will, when they become effective or are
filed with the Commission, as the case may be, conform in all material respects to the requirements
of the Securities Act (including Rule 415(a) of the Securities Act), the Trust Indenture Act of
1939, as amended, and the rules and regulations promulgated thereunder (“Trust Indenture Act”);
(ii) each part of the Registration Statement, as of its Effective Date and as of the date hereof,
and any amendment thereto, as of the date of any such amendment, did not, does not and will not, as
the case may be, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading; (iii) the
Time of Sale Prospectus, as of the date hereof and at the time of each sale (as such phrase is used
in Rule 159 under the Act) of the Securities in connection with the offering and as of the Delivery
Date, as then amended or supplemented by the Company, if applicable, does not and will 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 therein, in the light of the circumstances under which
they were made, not misleading; and (iv) the Prospectus, as of the date hereof and the Delivery
Date, as then supplemented by the Company, if applicable, does not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement, the Time of Sale Prospectus or
the Prospectus in reliance upon and in conformity with written information furnished to the Company
through the Underwriters expressly for use therein, which consists of the names and titles of the
Underwriters as set forth on the front cover page of the Prospectus, the selling concession figures
appearing in the third paragraph under the caption “Underwriting” in the Preliminary Prospectus and
the Prospectus (and any corresponding information in the Time of Sale Prospectus) and the
information contained in the second sentence of the sixth paragraph, the ninth paragraph (including
but not limited to the four bulleted items therein) and the tenth paragraph under the caption
“Underwriting” in the Preliminary Prospectus and the Prospectus, it being understood that thirteen
paragraphs appear within the “Underwriting” section.
(d) The Incorporated Documents, when they were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act and the Exchange Act,
as applicable; and none of the Incorporated Documents, when such documents were filed with the
Commission, contained any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Time of Sale Prospectus or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the
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requirements of the Exchange Act and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were made, not misleading.
(e) The Company meets the requirements to use free writing prospectuses in connection with the
offering of the Securities pursuant to Rules 164 and 433 of the Securities Act. Any free writing
prospectus that the Company is required to file with the Commission pursuant to Rule 433(d) of the
Securities Act has been, or will be, timely filed with the Commission in accordance with the
requirements of the Securities Act. Each issuer free writing prospectus (as defined in Rule
433(h)(1) under the Act) that the Company has filed, or is required to file, pursuant to Rule
433(d) of the Securities Act, or that was prepared by or on behalf of or used by the Company
complies or will comply in all material respects with the requirements of the Securities Act.
Except for the free writing prospectus(es), if any, identified in Schedule 2 hereto, the Company
has not prepared, used or referred to, and will not, without the Underwriters’ prior consent, not
to be unreasonably withheld or delayed, prepare, use or refer to, any free writing prospectus.
(f) No relationship, direct or indirect, exists between or among the Company on the one hand,
and the directors, officers, shareholders, customers or suppliers of the Company on the other hand,
which is required to be described in each of the Time of Sale Prospectus and the Prospectus which
is not so described.
(g) There are no contracts, agreements or other documents which are required to be described
in each of the Time of Sale Prospectus and the Prospectus or filed as exhibits to the Registration
Statement or the Incorporated Documents by the Securities Act or the Exchange Act, as the case may
be, which have not been described in each of the Time of Sale Prospectus and the Prospectus or
filed as exhibits to the Registration Statement or the Incorporated Documents.
(h) Except as set forth in or contemplated by each of the Time of Sale Prospectus and the
Prospectus, neither the Company nor any of its subsidiaries has sustained, since the date of the
latest audited financial statements included or incorporated by reference in the Time of Sale
Prospectus, any material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree; since such date, there has not been any material adverse
change in the capital stock, short-term debt or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, consolidated financial position,
shareholders’ equity, results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole; and subsequent to the respective dates as of which information is
given in the Time of Sale Prospectus and up to the Delivery Date, except as set forth in the Time
of Sale Prospectus, (A) neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations outside the ordinary course of business, direct or contingent, which are
material to the Company and its subsidiaries taken as a whole, nor entered into any material
transaction not in the ordinary course of business and (B) there have not been dividends or
distributions of any kind declared, paid or made by Company on any class of its capital stock,
except for regularly scheduled dividends.
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(i) Each of the Company and each of Reinsurance Company of Missouri, Incorporated, RGA
Reinsurance Company, RGA Reinsurance Company (Barbados) Ltd., RGA Life Reinsurance Company of
Canada and RGA Americas Reinsurance Company, Ltd. (the “Significant Subsidiaries”), which are the
Company’s only “significant subsidiaries” (as defined under Rule 405 of the Securities Act), has
been duly organized, is validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation, has all requisite corporate power and authority to carry
on its business as it is currently being conducted and in all material respects as described in
each of the Time of Sale Prospectus and the Prospectus and to own, lease and operate its
properties, and is duly qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to so register or qualify would not,
reasonably be expected, singly or in the aggregate, to result in a material adverse effect on the
properties, business, results of operations, condition (financial or otherwise), affairs or
prospects of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(j) The entities listed on Schedule 3 hereto are the only subsidiaries, direct or indirect, of
the Company. The Company owns, directly or indirectly through other subsidiaries, the percentage
indicated on Schedule 3 of the outstanding capital stock or other securities evidencing equity
ownership of such subsidiaries, free and clear of any security interest, claim, lien, limitation on
voting rights or encumbrance; and all of such securities have been duly authorized, validly issued,
are fully paid and nonassessable and were not issued in violation of any preemptive or similar
rights. There are no outstanding subscriptions, preemptive or other rights, warrants, calls,
commitments of sale or options to acquire, or instruments convertible into or exchangeable for, any
such shares of capital stock or other equity interest of such subsidiaries.
(k) Neither the Company nor any of its subsidiaries is (i) in violation of its respective
charter or bylaws, (ii) is in default in the performance of any bond, debenture, note, indenture,
mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties is subject or (iii) is in violation of any law, statute,
rule, regulation, judgment or court decree applicable to the Company, any of its subsidiaries or
their assets or properties, except in the case of clauses (ii) and (iii) for any such violation or
default which does not or would not reasonably be expected to have a Material Adverse Effect.
(l) The catastrophic coverage arrangements described in each of the Time of Sale Prospectus
and the Prospectus are in full force and effect as of the date hereof and all other retrocessional
treaties and arrangements to which the Company or any of its Significant Subsidiaries is a party
and which have not terminated or expired by their terms are in full force and effect, and none of
the Company or any of its Significant Subsidiaries is in violation of or in default in the
performance, observance or fulfillment of, any obligation, agreement, covenant or condition
contained therein, except to the extent that any such violation or default would not reasonably be
expected to have a Material Adverse Effect; neither the Company nor any of its Significant
Subsidiaries has received any notice from any of the other parties to such treaties, contracts or
agreements that such other party intends not to perform such treaty, contract or agreement that
would reasonably be expected to have a Material Adverse Effect and, to the best knowledge of the
Company, the Company has no reason to believe that any of the other parties to
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such treaties or arrangements will be unable to perform such treaty or arrangement in any
respect that would reasonably be expected to have a Material Adverse Effect.
(m) The execution, delivery and performance by the Company of the Transaction Agreements, the
issuance and sale of the Securities and the consummation by the Company of the transactions
contemplated hereby and thereby will not violate or constitute a breach of any of the terms or
provisions of, or a default under (or an event that with notice or the lapse of time, or both,
would constitute a default), or require consent under, or result in the imposition of a lien or
encumbrance on any properties of the Company or any of its subsidiaries, or an acceleration of
indebtedness pursuant to, (i) the charter or bylaws (or equivalent organizational documents) of the
Company or any of its subsidiaries, (ii) any bond, debenture, note, indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any of its subsidiaries is a party
or by which any of them or their property is or may be bound, (iii) any statute, rule or regulation
applicable to the Company, any of its subsidiaries or any of their assets or properties or (iv) any
judgment, order or decree of any court or governmental agency or authority having jurisdiction over
the Company, any of its subsidiaries or their assets or properties, other than in the case of
clauses (ii) through (iv), any violation, breach, default, consent, imposition or acceleration that
would not reasonably be expected to have a Material Adverse Effect and except for such consents or
waivers as may have been obtained by the Company or such consents or filings as may be required
under the state or foreign securities or Blue Sky laws and regulations or as may be required by the
Financial Industry Regulatory Authority, Inc. (“FINRA”).
(n) No consent, approval, authorization or order of, or filing, registration, qualification,
license or permit of or with, any court or governmental agency, body or administrative agency is
required for the execution, delivery and performance by the Company of the Transaction Agreements,
the issuance and sale of the Securities and the consummation by the Company of the transactions
contemplated hereby and thereby, except such as (i) would not reasonably be expected to have a
Material Adverse Effect, (ii) would not prohibit or adversely affect the issuance and sale of any
of the Securities, or (iii) have been obtained and made or, with respect to a current report on
Form 8-K, a Prospectus and a free writing prospectus to be filed with the Commission in connection
with the issuance and sale of the Securities, will be made, under the Securities Act, or as may be
required under state or foreign securities or Blue Sky laws and regulations, such as may be
required by the FINRA or has been obtained from the State of Missouri Department of Insurance. No
consents or waivers from any other person are required for the execution, delivery and performance
by the Company of any of the Transaction Agreements, the issuance and sale of the Securities and
the consummation of the transactions contemplated hereby and thereby, other than such consents and
waivers as (i) would not reasonably be expected to have a Material Adverse Effect, (ii) would not
prohibit or adversely affect the issuance of any of the Securities and (iii) have been obtained.
(o) Except as set forth in or contemplated by the Prospectus, there is (i) no action, suit or
proceeding before or by any court, arbitrator or governmental agency, body or official, domestic
or, foreign, now pending or threatened or contemplated to which the Company or any of its
subsidiaries is or may be a party or to which the business or property of the Company or any of its
subsidiaries is or may be subject, (ii) no statute, rule, regulation or order that has been
enacted, adopted or issued by any governmental agency or that has been proposed by any governmental
body having jurisdiction over the Company or its subsidiaries and (iii) no injunction, restraining
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order or order of any nature by a federal or state court or foreign court of competent
jurisdiction to which the Company or any of its subsidiaries is or may be subject issued that, in
the case of clauses (i), (ii) and (iii) above, (x) would, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, (y) would interfere with or adversely affect the
issuance and sale of any of the Securities by the Company or (z) in any manner draw into question
the validity of any of the Transaction Agreements or of the Securities. The Time of Sale
Prospectus contains in all material respects the same description of the foregoing matters
contained in the Prospectus.
(p) None of the employees of the Company and its subsidiaries is represented by a union and,
to the best knowledge of the Company and its subsidiaries, no union organizing activities are
taking place. Neither the Company nor any of its subsidiaries has violated any federal, state or
local law or foreign law relating to discrimination in hiring, promotion or pay of employees, nor
any applicable wage or hour laws, nor any provision of the Employee Retirement Income Security Act
of 1974, as amended, and the rules and regulations thereunder, or analogous foreign laws and
regulations, which would reasonably be expected to result in a Material Adverse Effect.
(q) Each of the Company and its subsidiaries has (i) good and, in the case of real property,
merchantable title to all of the properties and assets described in each of the Time of Sale
Prospectus and the Prospectus as owned by it, free and clear of all liens, charges, encumbrances
and restrictions, except such as are described in each of the Time of Sale Prospectus and the
Prospectus, or as would not reasonably be expected to have a Material Adverse Effect, (ii) peaceful
and undisturbed possession under all leases to which it is party as lessee, (iii) all material
licenses, certificates, permits, authorizations, approvals, franchises and other rights from, and
has made all declarations and filings with, all federal, state and local governmental authorities
(including, without limitation, from the insurance regulatory agencies of the various jurisdictions
where it conducts business) and all courts and other governmental tribunals (each, an
“Authorization”) necessary to engage in the business currently conducted by it in the manner
described in each of the Time of Sale Prospectus and the Prospectus, except where failure to hold
such Authorizations would not reasonably be expected to have a Material Adverse Effect, (iv)
fulfilled and performed all obligations necessary to maintain each authorization and (v) no
knowledge of any threatened action, suit or proceeding or investigation that would reasonably be
expected to result in the revocation, termination or suspension of any Authorization, the
revocation, termination or suspension of which would reasonably be expected to have a Material
Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, all
such Authorizations are valid and in full force and effect and the Company and its subsidiaries are
in compliance in all material respects with the terms and conditions of all such Authorizations and
with the rules and regulations of the regulatory authorities having jurisdiction with respect
thereto. No insurance regulatory agency or body has issued any order or decree impairing,
restricting or prohibiting the payment of dividends by any subsidiary of the Company to its parent,
other than any such orders or decrees the issuance of which would not reasonably be expected to
have a Material Adverse Effect. Except as would not have a Material Adverse Effect, all leases to
which the Company or any of its subsidiaries is a party are valid and binding and no default by the
Company or any of its subsidiaries has occurred and is continuing thereunder, and, to the Company’s
knowledge, no material defaults by the landlord are existing under any such lease.
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(r) All tax returns required to be filed by the Company or any of its subsidiaries, in all
jurisdictions, have been so filed. All taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due or claimed to be due from such entities or that are due and
payable have been paid, other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without penalty or interest. The Company
does not know of any material proposed additional tax assessments against it or any of its
subsidiaries.
(s) Neither the Company nor any of its subsidiaries is, or after the application of the net
proceeds from the sale of the Securities will be, an “investment company” as defined, and subject
to regulation, under the Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “Investment Company Act”), or analogous foreign
laws and regulations.
(t) The authorized, issued and outstanding capital stock of the Company has been validly
authorized and issued, is fully paid and nonassessable and was not issued in violation of or
subject to any preemptive or similar rights; and such authorized capital stock conforms in all
material respects to the description thereof set forth in each of the Time of Sale Prospectus and
the Prospectus. The Company had at September 30, 2009, an authorized and outstanding capitalization
as set forth in the section headed “Capitalization” of the Time of Sale Prospectus and the
Prospectus, and, except with respect to warrants to purchase Common Stock, par value $0.01 per
share (“Common Stock”) issued by the Company as part of the Trust Preferred Income Equity
Redeemable Securities of the Company and RGA Capital Trust I (the “Warrants”) or otherwise as
expressly set forth in the Time of Sale Prospectus, since the date set forth in the Time of Sale
Prospectus, (A) there are no outstanding preemptive or other rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of capital stock or other
equity interest in the Company or any of its subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital stock of the
Company or any such subsidiary, any such convertible or exchangeable securities or any such rights,
warrants or options (except as contemplated by the terms of the 6.75% Junior Subordinated
Debentures due 2065 of the Company) and (B) there will have been no change in the authorized or
outstanding capitalization of the Company, except with respect to, in the case of each of clause
(A) and (B) above, (i) changes occurring in the ordinary course of business and (ii) changes in
outstanding Common Stock and options or rights to acquire Common Stock resulting from transactions
relating to the Company’s employee benefit, dividend reinvestment or stock purchase plans.
(u) The Company and each of its subsidiaries maintains insurance covering their properties,
personnel and business. Such insurance insures against such losses and risks as are adequate in
accordance with the Company’s perception of customary industry practice to protect the Company and
its subsidiaries and their businesses. Neither the Company nor any of its subsidiaries have
received notice from any insurer or agent of such insurer that substantial capital improvements or
other expenditures will have to be made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and will be outstanding and duly in force on the
Delivery Date.
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(v) Neither the Company nor any agent thereof acting on the behalf of the Company has taken,
and none of them will take, any action that might cause the Agreement or the issuance and sale of
the Securities to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
(w) Deloitte & Touche LLP (“Deloitte & Touche”), who has issued an unqualified opinion on the
financial statements and supporting schedules included or incorporated by reference in each of the
Time of Sale Prospectus and the Prospectus and has audited the Company’s internal control over
financial reporting and management’s assessment thereof, is an independent registered public
accounting firm as required by the Securities Act. The consolidated historical statements together
with the related schedules and notes fairly present, in all material respects, the consolidated
financial condition and results of operations of the Company and its subsidiaries at the respective
dates and for the respective periods indicated, in accordance with United States generally accepted
accounting principles consistently applied throughout such periods, except as stated therein. Other
financial and statistical information and data included or incorporated by reference in each of the
Time of Sale Prospectus and the Prospectus, historical and pro forma, are, in all material
respects, accurately presented and prepared on a basis consistent with such financial statements,
except as may otherwise be indicated therein, and the books and records of the Company and its
subsidiaries.
(x) The 2008 statutory annual statements of each of RGA Reinsurance Company, a Missouri
insurance corporation, Reinsurance Company of Missouri Incorporated and RGA Life Reinsurance
Company of Canada (collectively, the “Insurance Subsidiaries”) and the statutory balance sheets and
income statements included in such statutory annual statements together with related schedules and
notes, have been prepared, in all material respects, in conformity with statutory accounting
principles or practices required or permitted by the appropriate Insurance Department of the
jurisdiction of domicile of each such subsidiary, and such statutory accounting practices have been
applied on a consistent basis throughout the periods involved, except as may otherwise be indicated
therein or in the notes thereto, and present fairly, in all material respects, the statutory
financial position of the Insurance Subsidiaries as of the dates thereof, and the statutory basis
results of operations of the Insurance Subsidiaries for the periods covered thereby.
(y) The Company and the Insurance Subsidiaries have made no material changes in their
insurance reserving practices since December 31, 2008, except where such change in such insurance
reserving practices would not reasonably be expected to have a Material Adverse Effect.
(z) (i) The Company’s senior long-term debt is rated “a-” by A.M. Best Company, Inc., “Baa1”
by ▇▇▇▇▇’▇ Investor Services (“Moody’s”) and “A-” by Standard & Poor’s Rating Services, Inc.
(“S&P”); (ii) RGA Reinsurance Company has a financial strength rating of “A+” (Superior) from A.M.
Best Company, Inc., “A1” from Moody’s and “AA-” from S&P; (iii) RGA Life Reinsurance Company of
Canada has a financial strength rating of “A+” (Superior) from A.M. Best Company, Inc. and “AA-”
from S&P; and (iv) the Company is not aware of any threatened or pending downgrading of the ratings
set forth in clauses (i), (ii) and (iii) above or any other claims-paying ability rating of the
Company or any Significant Subsidiaries, other than as set forth or described in the Time of Sale
Prospectus.
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(aa) Except as described in the Prospectus, with respect to MetLife, Inc., there are no
contracts, agreements or understandings between the Company, any of the subsidiaries of the Company
and any person granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company owned or to be
owned by such person. The Time of Sale Prospectus contains in all material respects the same
description of the foregoing matters contained in the Prospectus.
(bb) The Company has all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder; this Agreement has been duly authorized,
executed and delivered by the Company and assuming due authorization, execution and delivery by the
Underwriters, it will be a legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except (i) as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium, fraudulent transfer or similar laws now or
hereinafter in effect relating to or affecting creditors’ rights generally and by general
principles of equity, including without limitation, concepts of reasonableness, materiality, good
faith and fair dealing, (ii) that the remedies of specific performance and injunctive and other
forms of equitable relief are subject to general equitable principles, whether such enforcement is
sought at law or equity, (iii) that such enforcement may be subject to the discretion of the court
before which any proceedings therefore may be brought and (iv) except with respect to the rights of
indemnification and contribution hereunder, where enforcement hereof may be limited by federal or
state securities laws or the policies underlying such laws.
(cc) The Company has all necessary corporate power and authority to execute and deliver the
Indenture and to perform its obligations thereunder, as set forth below; the Indenture has been
duly authorized by the Company, is qualified under the Trust Indenture Act and conforms in all
material respects to the requirements of the Trust Indenture Act; when the Indenture is duly
executed and delivered by the Company, assuming due authorization, execution and delivery of the
Indenture by the Trustee, it will constitute a legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except (i) as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent transfer or
similar laws now or hereinafter in effect relating to or affecting creditors’ rights generally and
by general principles of equity, including without limitation, concepts of reasonableness,
materiality, good faith and fair dealing, (ii) that the remedies of specific performance and
injunctive and other forms of equitable relief are subject to general equitable principles, whether
such enforcement is sought at law or equity and (iii) that such enforcement may be subject to the
discretion of the court before which any proceedings therefore may be brought. The Indenture will
conform, when executed and delivered, in all material respects to the description thereof contained
in the Prospectus. The Time of Sale Prospectus contains in all material respects the same
description of the foregoing matters contained in the Prospectus.
(dd) The Securities have been duly authorized by the Company and when the Securities are
executed, authenticated and issued in accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, such Securities will constitute
legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except (i) as such enforcement may
be limited by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent
10
transfer or similar laws now or hereinafter in effect relating to or affecting creditors’
rights generally and by general principles of equity, including without limitation, concepts of
reasonableness, materiality, good faith and fair dealing, (ii) that the remedies of specific
performance and injunctive and other forms of equitable relief are subject to general equitable
principles, whether such enforcement is sought at law or equity and (iii) that such enforcement may
be subject to the discretion of the court before which any proceedings therefore may be brought.
The Securities will conform, when executed and delivered, in all material respects to the
description thereof contained in the Prospectus. The Time of Sale Prospectus contains in all
material respects the same description of the foregoing matters contained in the Prospectus.
(ee) Neither the Company, nor to its knowledge, any of its Affiliates (as defined in
Regulation C of the Securities Act, an “Affiliate”), has taken or will take, directly or
indirectly, any action designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the price of the
Securities to facilitate the sale or resale of such Securities.
(ff) No event has occurred nor has any circumstance arisen which, had the Securities been
issued on the date hereof, would constitute a default or an event of default under the Indenture as
summarized in each of the Time of Sale Prospectus and the Prospectus.
(gg) Each certificate signed by any officer of the Company and delivered to the Underwriters
or counsel for the Underwriters shall be deemed to be a representation and warranty by the Company
to the Underwriters as to the matters covered thereby.
(hh) (i) The Company maintains a system of internal control over financial reporting (as such
term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with United States generally accepted accounting principles. The Company’s
internal control over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting.
(ii) Since the date of the latest financial statements included or incorporated by
reference in each of the Time of Sale Prospectus and the Prospectus, there has been no
change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over
financial reporting.
(iii) The Company has established and maintains disclosure controls and procedures (as
such terms are defined in Rule 13a-15(e) of the Exchange Act) in accordance with the rules
and regulations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and the
Exchange Act. Such disclosure controls and procedures (a) are designed to provide
reasonable assurance that material information relating to the Company and its subsidiaries
is made known to the Company’s Chief Executive Officer and its Chief Financial Officer by
others within those entities. Such disclosure controls and procedures are effective to
provide such reasonable assurance.
11
2. Purchase of the Securities by the Underwriters. On the basis of the representations and
warranties made herein and subject to the terms and conditions herein set forth, the Company agrees
to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company the aggregate principal amount of Securities set forth
opposite their respective names in Schedule 1 hereto. The price of the Securities shall be 99.18%
of the principal amount thereof. The Company shall not be obligated to deliver any of the
Securities to be delivered on the Delivery Date, except upon payment for all the Securities to be
purchased on the Delivery Date as provided herein.
3. Offering of Securities by the Underwriters. The several Underwriters propose to offer the
Securities for sale upon the terms and conditions set forth in the Prospectus.
4. Delivery of and Payment for the Securities. (a) Delivery of and payment for the Securities
shall be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, at 10:00 a.m. (New York City time) on the third full business day (or on the fourth full
business day if the pricing of the Securities occurs after 4:30 p.m., New York City time, on the
date hereof) following the date of this Agreement, or at such other date or place as shall be
determined by agreement among the Underwriters and the Company (such date and time of delivery of
and payment for the Securities, the “Delivery Date”). On the Delivery Date, the Company shall
deliver or cause to be delivered certificates representing the Securities to the Underwriters for
the account of each Underwriter against payment to or upon the order of the Company of the purchase
price by wire transfer in immediately available funds. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a further condition of the obligation
of each Underwriter hereunder. Upon delivery, the Securities shall be registered in such names and
in such denominations as the Representatives shall request in writing not less than two full
business days prior to the Delivery Date.
The Company will deliver, against payment of the purchase price, the Securities in the form of
one or more permanent global certificates (the “Global Securities”), registered in the name of Cede
& Co., as nominee for The Depository Trust Company (“DTC”). The Global Securities will be made
available, at the request of the Underwriters, for checking at least 24 hours prior to the Delivery
Date.
5. Further Agreements.
5A. Further Agreements of the Company. The Company further agrees, for the benefit of each of
the Underwriters:
(a) To prepare the Prospectus in a form approved by the Underwriters which approval shall not
be unreasonably withheld or delayed, and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than Commission’s close of business on the second business day following
the execution and delivery of this Agreement or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any
supplement to the Registration Statement or the Prospectus prior to the Delivery Date or to the
Time of Sale Prospectus prior to its first use on the date hereof, except as permitted herein; to
advise the Underwriters, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any supplement to
12
the Time of Sale Prospectus or the Prospectus or any amended Time of Sale Prospectus or
Prospectus has been filed with the Commission and to furnish the Underwriters with copies thereof;
to file promptly all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required by applicable law in connection with the offering or sale of the Securities;
to advise the Underwriters, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of any Preliminary
Prospectus, the Time of Sale Prospectus or the Prospectus, of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Time of Sale Prospectus or the Prospectus or for
additional information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the
Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to
obtain its withdrawal;
(b) To furnish promptly to the Underwriters and to counsel for the Underwriters a signed or
facsimile signed copy of the Registration Statement as originally filed with the Commission, and
each amendment thereto filed with the Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Underwriters such number of the following documents as the
Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each case excluding exhibits)
and (ii) each Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus and any amended
or supplemented Preliminary Prospectus, Time of Sale Prospectus or Prospectus, and, if the delivery
of a prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
required at any time after the Effective Time in connection with the offering or sale of the
Securities and, if at such time, any events shall have occurred as a result of which the Time of
the Sale Prospectus or the Prospectus, as the case may be, as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made
when such Time of Sale Prospectus or Prospectus is delivered (or in lieu thereof the notice
referred to in Rule 173(a) of the Securities Act), not misleading, or, if for any other reason it
shall be necessary to amend or supplement the Time of Sale Prospectus or the Prospectus in order to
comply with the Securities Act, to notify the Underwriters and, upon their request, to prepare and
furnish without charge to the Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended or supplemented Time of Sale
Prospectus or Prospectus which will correct such statement or omission or effect such compliance;
(d) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to the Underwriters a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which the Underwriters
reasonably object, in each case, other than the free writing prospectus(es) identified on Schedule
2;
13
(e) To file promptly with the Commission any amendment to the Registration Statement, the Time
of Sale Prospectus or the Prospectus or any supplement to the Time of Sale Prospectus or the
Prospectus that may, in the reasonable judgment of the Company or the Underwriters, be required by
the Securities Act or is requested by the Commission;
(f) To furnish to the Underwriters a copy of each proposed free writing prospectus to be
prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any
proposed free writing prospectus to which the Underwriters reasonably object, in each case, other
than the free writing prospectus(es) identified on Schedule 2;
(g) To obtain the Underwriters’ consent, not to be unreasonably withheld or delayed, before
taking, or failing to take, any action that would cause the Company to be required to file a free
writing prospectus pursuant to Rule 433(d) of the Securities Act, other than the free writing
prospectus(es) listed in Schedule 2 hereto;
(h) Not to take any action that would result in an Underwriter being required to file with the
Commission pursuant to Rule 433(d) of the Securities Act a free writing prospectus prepared by or
on behalf of the Underwriter that the Underwriter otherwise would not have been required to file
thereunder;
(i) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a
time when the Prospectus is not yet available to prospective purchasers and (A) any event shall
occur or condition exist as a result of which it is necessary to amend or supplement the Time of
Sale Prospectus in writing in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, (B) if any event shall occur or condition
exist as a result of which the Time of Sale Prospectus conflicts with the information contained in
the Registration Statement or (C) if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, then
the Company shall, with respect to clause (A) , (B) or (C), as the case may be, forthwith prepare,
file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer
upon request, either amendments or supplements to the Time of Sale Prospectus so that statements in
the Time of Sale Prospectus as so amended or supplemented (X) will not, in the light of the
circumstances under which they are made, when conveyed to a prospective purchaser, be misleading,
(Y) so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with
the Registration Statement or (Z) so that the Time of Sale Prospectus as so amended or supplemented
otherwise complies with applicable law, as the case may be;
(j) For so long as the delivery of a prospectus (or in lieu of thereof the notice referred to
in Rule 173(a) of the Securities Act) is required in connection with the initial offering or sale
of the Securities, prior to filing with the Commission any amendment to the Registration Statement
or supplement to the Time of Sale Prospectus or the Prospectus and any document incorporated by
reference in the Time of Sale Prospectus or in the Prospectus pursuant to Rule 424 of the
Securities Act, to furnish a copy thereof to the Underwriters and counsel for the Underwriters and
obtain the consent of the Underwriters to such filing;
(k) As soon as practicable after the Effective Date, to make generally available to the
Company’s security holders and to deliver to the Underwriters an earnings statement of the
14
Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158 of the Securities Act);
(l) Promptly from time to time, to take such action as the Representatives may reasonably
request to qualify the Securities for offering and sale under the securities laws of such
jurisdictions in the United States as the Representatives may request and in such other
jurisdictions as the Company and the Representatives may mutually agree, and to comply with such
laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Securities; provided that, in
connection therewith, the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(m) Not to take, directly or indirectly, any action which is designed to stabilize or
manipulate, or which constitutes or which might reasonably be expected to cause or result in
stabilization or manipulation, of the price of any security of the Company in connection with the
initial offering of the Securities (except after consultation with the Underwriters and as may be
permitted by under federal securities laws);
(n) To use its best efforts to cause the Securities to be accepted for clearance and
settlement through the facilities of DTC;
(o) To execute and deliver the Supplemental Indenture in form and substance reasonably
satisfactory to the Underwriters;
(p) To apply the net proceeds from the issuance of the Securities as set forth under “Use of
Proceeds” in the Prospectus;
(q) To take such steps as shall be necessary to ensure that the Company and its Significant
Subsidiaries shall not become an “investment company” as defined, and subject to regulation, under
the Investment Company Act;
(r) To take all reasonable action necessary to enable the rating agencies identified in
Section 7(n) to provide their respective rating of the Securities; and
(s) For a period of 30 days after the date of the Prospectus not to (i) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any debt securities of the Company with a
maturity of three years or longer or any other securities that are substantially similar to the
Securities or any securities convertible into or exercisable or exchangeable for such debt
securities of the Company (ii) enter into any swap or other agreement that transfers, in whole or
in part, any of the economic consequences of ownership of any of the Securities or such other
securities, whether any such transaction described in clause (i) or (ii) above is to be settled by
delivery of such debt securities of the Company or such other securities, in cash or otherwise
without the prior written consent of the Underwriters, which shall not be unreasonably withheld or
delayed, except that the foregoing restrictions shall not apply to the issuance of the Securities
to be sold hereunder.
15
5.B Further Agreement of the Underwriters. Each Underwriter severally covenants with the
Company (1) not to take any action that would result in the Company being required to file with the
Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter
that otherwise would not be required to be filed by the Company thereunder, but for the action of
the Underwriter and (2) to comply with the selling restrictions relating to non-U.S. jurisdictions
set forth in paragraphs eleven, twelve and thirteen of the “Underwriting” section of the
Preliminary Prospectus and Prospectus.
6. Expenses. Whether or not the transactions contemplated by this Agreement are consummated
or this Agreement becomes effective or is terminated, the Company agrees to pay or cause to be
paid: (a) the costs incident to the issuance, sale and delivery of the Securities; (b) the costs
incident to the preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto, any Preliminary Prospectus and any Prospectus or
any amendment or supplement thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments thereof (including,
in each case, exhibits), any Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus
and any amendment or supplement to any Preliminary Prospectus, the Time of Sale Prospectus or the
Prospectus, in each case, as provided in this Agreement; (d) the costs of preparing and
distributing the terms of any agreement relating to the organization of the underwriting syndicate
and selling group to the members (such as an agreement among underwriters) thereof, by mail, telex
or other reasonable means of communication; (e) the costs, if any, of producing and distributing
the Transaction Agreements; (f) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions in the United States as provided in Section 5A(l) and
of preparing, photocopying and distributing a U.S. Blue Sky memorandum (including reasonable
related fees and expenses of counsel to the Underwriters in connection therewith); (g) the expenses
of the Company and the Underwriters in connection with the marketing and offering of the
Securities, including, if applicable, all reasonable costs and expenses incident to the preparation
of “road show” presentation or comparable marketing materials and the road show traveling expenses
of the Company in connection with the offering of the Securities; (h) all expenses and fees in
connection with any rating of the Securities; (i) the fees and expenses of the Company’s counsel,
transfer agents and independent accountants, the Trustee and the costs and charges of any registrar
and paying agent under the Indenture; and (j) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement; provided, however, that, except
as provided in this Section 6 and in Section 11, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel.
7. Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters
hereunder are subject to the accuracy, on the date hereof and on the Delivery Date, of the
representations and warranties of the Company contained herein, to the performance by the Company
of its obligations hereunder, and to the satisfaction of each of the following additional
conditions and agreements:
(a) The Prospectus, and any free writing prospectus that is required to be filed with the
Commission pursuant to Rule 433(d) of the Securities Act, shall have been timely filed with the
Commission in accordance with Section 5A(a) of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
16
proceeding for that purpose shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in the Registration Statement or
the Prospectus or otherwise shall have been complied with in all material respects.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the date
hereof or the Delivery Date, that, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters, any part of the Registration Statement or any amendment thereto, contained, as of its
Effective Date or as of the Delivery Date, an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading or that the Time of Sale Prospectus or the Prospectus or any supplement thereto,
contains and will contain, as of the date hereof and the Delivery Date, an untrue statement of a
material fact or omits and will omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and
validity of the Registration Statement, the Preliminary Prospectus, the Time of Sale Prospectus,
the Prospectus, the Transaction Agreements and the Securities, and all other legal matters relating
to the offering, issuance and sale of the Securities and the transactions contemplated hereby and
thereby shall be reasonably satisfactory in all material respects to counsel to the Underwriters.
(d) ▇▇▇▇▇ ▇▇▇▇ LLP, special counsel to the Company, shall have furnished to the Underwriters
its written opinion, addressed to the Underwriters and dated the Delivery Date, in form and
substance reasonably satisfactory to the Underwriters, substantially to the effect that:
(i) Such counsel has been advised that the Registration Statement was declared
effective under the Securities Act, and the Original Indenture was qualified under the Trust
Indenture Act as of the time and date specified in such opinion; each of the Preliminary
Prospectus, the free writing prospectus(es) identified in Item 1 of Schedule 2 and the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) and
Rule 433 of the Securities Act, as the case may be, specified in such opinion on the date
specified therein; and, based solely upon an oral acknowledgement by the staff of the
Commission, no stop order suspending the effectiveness of the Registration Statement has
been issued and, to the knowledge of such counsel, no proceeding for that purpose is pending
or threatened by the Commission.
(ii) The Registration Statement and the Prospectus (excluding any documents
incorporated by reference therein, as to which such counsel need express no opinion) and any
further amendments or supplements thereto made by the Company prior to the Delivery Date
(other than the financial statements and related notes and schedules and the other
financial, statistical and accounting data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no opinion), when they were filed
with the Commission appeared on their face to comply as to form in all material respects
with the applicable requirements of the Securities Act, and the Indenture conforms in all
material respects to the requirements of the Trust Indenture Act.
17
(iii) This Agreement has been duly authorized, executed and delivered by the Company.
(iv) The Supplemental Indenture has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery thereof by the Trustee,
constitutes a valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms.
(v) The Securities have been duly authorized for issuance by the Company and, assuming
due authorization, execution and delivery thereof by the Trustee, such Securities constitute
valid and binding obligations of the Company, enforceable against the Company in accordance
with their terms and entitled to the benefits provided by the Indenture.
(vi) The statements made in the Time of Sale Prospectus and the Prospectus Supplement
under the caption “Description of the notes” (including any statements referred to in the
applicable paragraphs of the “Description of the Debt Securities” section of the base
prospectus included in the Prospectus), insofar as such statements constitute summaries of
the Indenture and the Securities, are accurate in all material respects (except for
financial, statistical and accounting data included or incorporated by reference therein or
omitted therefrom as to which such counsel need express no opinion). The Securities conform
in all material respects to the description thereof in the Time of Sale Prospectus and the
Prospectus.
(vii) The statements made in the Time of Sale Prospectus and the Prospectus under the
caption “Material United States federal income tax consequences” insofar as such statements
constitute summaries of United States federal income tax law and regulations or matters of
law, are accurate in all material respects.
(viii) The execution and delivery by the Company of the Transaction Agreements, the
issuance and sale of the Securities by the Company and the consummation by the Company of
its obligations under the Transaction Agreements do not result in any violation by the
Company of any provision of applicable U.S. Federal or Missouri state statute, rule or
regulation that such counsel, based on its experience, recognizes as being applicable to the
Company in a transaction of this type, or, to such counsel’s knowledge, any order, writ,
judgment or decree of any Federal or Missouri state court or governmental authority or
regulatory body having jurisdiction over the Company or any of its subsidiaries or any of
their properties, except in each case for such violations that would not be reasonably
expected to result in a Material Adverse Effect.
(ix) No consent, approval, authorization or other action by, and no notice to or filing
with, any U.S. Federal or Missouri state governmental authority or regulatory body, pursuant
to any U.S. Federal or Missouri state statute, rule or regulation that such counsel, based
on its experience, recognizes as being applicable to the Company in a transaction of this
type, is required for the due execution, delivery and consummation by the Company of its
obligations under the Transaction Agreements and the issuance and sale of the Securities by
the Company, except such consents, approvals, authorizations or other actions which have
been obtained or made or, with respect to a current report on Form 8-K
18
and any free writing prospectus required to be filed with the Commission in connection
with the issuance and sale of the Securities, will be made, or except as may be required
under state securities or blue sky laws or the rules of the Financial Industry Regulatory
Authority, Inc. in connection with the purchase and distribution of the Securities by the
Underwriters, as to which such counsel need express no opinion.
The opinions described in paragraph numbers (iv) and (v) above may be subject to the effect of
applicable bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium,
arrangement and assignment for the benefit of creditors laws, and other similar laws relating to or
affecting the rights and remedies of creditors generally. The opinions may also be subject to the
effect of general principles of equity, whether applied by a court of law or equity, including, but
not limited to, principles (i) governing the availability of specific performance, injunctive
relief or other equitable remedies, (ii) affording equitable defenses (e.g., waiver, laches and
estoppel) against a party seeking enforcement, (iii) requiring good faith and fair dealing in the
performance and enforcement of a contract by the party seeking its enforcement, (iv) requiring
reasonableness in the performance and enforcement of an agreement by the party seeking its
enforcement, (v) requiring consideration of the materiality of a breach or the consequences of the
breach to the party seeking its enforcement, (vi) requiring consideration of the impracticability
or impossibility of performance at the time of attempted enforcement and (vii) affording defenses
based upon the unconscionability of the enforcing party’s conduct after the parties have entered
into the contract. Such opinions may also be subject to the effect of generally applicable rules
of law that (i) may, where less than all of a contract may be unenforceable, limit the
enforceability of the balance of the contract to circumstances in which the unenforceable portion
is not an essential part of the agreed exchange, and (ii) govern and afford judicial discretion
regarding the determination of damages and entitlement to attorneys’ fees and other costs. Such
opinions may also be subject to the qualification that the enforceability of any indemnification or
contribution provisions set forth in any documents or agreements referred to herein may be limited
by federal or state securities laws or by public policy.
In addition, the opinions of such counsel described in this paragraph (d) shall be rendered to
the Underwriters at the request of the Company and shall so state therein. Such opinions may
recite that no opinion is expressed with respect to, and that such counsel is not passing upon, and
does not assume responsibility for (i) any matters concerning The Depository Trust Company,
Euroclear Bank S.A. /NV, Clearstream Banking Société Anonyme or the policies, practices or
procedures of any of them, or (ii) any matters relating to insurance laws, statutes, rules or
regulations. In addition, such opinions may contain customary recitals, conditions and
qualifications.
In addition, such counsel shall state that, during the preparation of the Registration
Statement, the Time of Sale Prospectus and the Prospectus, it has participated in conferences with
officers and other representatives of the Company, representatives of Deloitte & Touche, the
Underwriters and their counsel, at which conferences the contents of the Registration Statement,
the Time of Sale Prospectus and the Prospectus and related matters were discussed, reviewed and
revised. On the basis of the information which was developed in the course thereof, but without
independent review or verification, although such counsel is not passing upon, and does not assume
responsibility for, the accuracy, completeness or fairness of such statements contained in the
Registration Statement, the Time of Sale Prospectus and the Prospectus (except as indicated
19
above), on the basis of the information which was developed in the course thereof, considered
in light of such counsel’s understanding of applicable law and experience such counsel has gained
through its practice thereunder, such counsel will advise the Underwriters that nothing has come to
such counsel’s attention which causes such counsel to believe that:
1. each part of the Registration Statement, as of the Effective Date and as of the date
hereof (except as to financial statements and related notes, financial, statistical and
accounting data and supporting schedules included or incorporated by reference therein or
omitted therefrom, as to which such counsel may express no belief), contained any untrue
statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, not misleading; or
2. the Time of Sale Prospectus, as of 3:00 p.m., New York City time, on the date hereof
(which you have informed us was the approximate time of the pricing of the offering of the
Securities) and, as amended or supplemented, if applicable, as of the Delivery Date, or the
Prospectus, as of its date and as of the Delivery Date, except as aforesaid, contained or
contains any untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(e) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Senior Vice President and Associate General Counsel of the
Company, shall have furnished to the Underwriters his written opinion, addressed to the
Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the
Underwriters, substantially to the effect that:
(i) Each of the Company and its Significant Subsidiaries which is incorporated in the
United States has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its respective jurisdiction of incorporation, has all requisite
corporate power and authority to own, lease and operate its properties and to conduct its
business in all material respects as it is currently being conducted and as described in
each of the Time of Sale Prospectus and the Prospectus, and is duly qualified and in good
standing as a foreign corporation authorized to do business in each jurisdiction described
in Schedule 4 in which the ownership, leasing and operation of its property and the conduct
of its business requires such qualification (except where the failure to be so qualified and
in good standing could not reasonably be expected to have a Material Adverse Effect).
(ii) The entities listed on Schedule 3 hereto are the only subsidiaries, direct or
indirect, of the Company. Except as otherwise set forth in each of the Time of Sale
Prospectus and the Prospectus, the Company owns, directly or indirectly through other
subsidiaries, the percentage indicated on Schedule 3 of the outstanding capital stock or
other securities evidencing equity ownership of such subsidiaries, free and clear of any
security interest and, to the knowledge of such counsel, any claim, lien, limitation on
voting rights or encumbrance; and all of such securities have been duly authorized, validly
issued, are fully paid and nonassessable and were not issued in violation of any preemptive
or similar rights. There are no outstanding subscriptions, rights, warrants, calls,
commitments of sale or options to acquire, or instruments convertible into or exchangeable
20
for, any such shares of capital stock or other equity interest of such subsidiaries
owned by the Company.
(iii) The Company has all requisite corporate power and authority to execute, deliver
and perform its obligations under the Transaction Agreements and to consummate the
transactions contemplated hereby and thereby, including, without limitation, the corporate
power and authority to issue, sell and deliver the Securities as provided herein.
(iv) The Company had an authorized capitalization as of September 30, 2009, as set
forth in the section headed “Capitalization” of each of the Time of Sale Prospectus and the
Prospectus.
(v) To the knowledge of such counsel, neither the Company nor any of its Significant
Subsidiaries which are incorporated in the United States is (i) in violation of its
respective charter or bylaws, (ii) is in default in the performance of any obligation,
agreement or condition contained in any material bond, debenture, note or any other evidence
of indebtedness or in any other instrument, indenture, mortgage, deed of trust,
retrocessional treaty or arrangement, or other material agreement to which it is a party or
by which it is bound or to which any of its properties is subject or (iii) is in violation
of any U.S. federal or Missouri law, statute, rule, regulation, judgment or court decree
applicable to the Company or its Significant Subsidiaries which are incorporated in the
United States, except in the case of clauses (ii) and (iii) for any such violation or
default which would not reasonably be expected to have a Material Adverse Effect.
(vi) The execution and delivery by the Company of the Transaction Agreements, the
issuance and sale of the Securities and the consummation by the Company of the transactions
contemplated hereby and thereby will not violate or constitute a breach of any of the terms
or provisions of, or a default under (or an event that with notice or the lapse of time, or
both, would constitute a default), or require consent under, or result in the imposition of
a lien or encumbrance on any properties of the Company or any of its Significant
Subsidiaries which are incorporated in the United States, or an acceleration of indebtedness
pursuant to, (i) the charter or bylaws of the Company or any of its Significant Subsidiaries
which are incorporated in the United States, (ii) any bond, debenture, note, indenture,
mortgage, deed of trust or other agreement or instrument known to such counsel to which the
Company or any of its Significant Subsidiaries which are incorporated in the United States
is a party or by which any of them or their property is or may be bound, (iii) any U.S.
federal or Missouri statute, rule or regulation reasonably recognized by such counsel as
applicable to the Company in transactions of this kind, or (iv) any judgment, order or
decree known to such counsel of any U.S. federal or Missouri court or governmental agency or
authority having jurisdiction over the Company, any of its Significant Subsidiaries which
are incorporated in the United States or their assets or properties, other than compliance
by the Company with securities and corporation laws, as applicable, as to which such counsel
need not express any opinion, except for any such violations, breaches or defaults which
would not reasonably be expected to have a Material Adverse Effect, and provided, that such
opinion may be subject to the qualification that the rights to indemnification or
contribution provided for herein may be violative of public policy underlying certain laws,
rules or regulations (including federal and state securities
21
laws, rules or regulations) and except for such consents as may have been obtained by
the Company or such consents or filings as may be required under state or foreign securities
or Blue Sky laws and regulations or such as may be required by the FINRA. No consent,
approval, authorization or order of, or filing, registration, qualification, license or
permit of or with, any governmental agency, body, administrative agency or, to the knowledge
of such counsel, any court, is required for the execution and delivery by the Company of the
Transaction Agreements, the issuance and sale of the Securities and the consummation by the
Company of the transactions contemplated hereby and thereby (other than compliance by the
Company with securities and corporation laws, as applicable, as to which such counsel need
not express any opinion), except such as (i) would not reasonably be expected to have a
Material Adverse Effect, (ii) would not prohibit or adversely affect the issuance and sale
of the Securities, or (iii) may be required under state or foreign securities or Blue Sky
laws and regulations or such as may be required by the FINRA. No consents or waivers from
any other person are required for the execution and delivery by the Company of the
Transaction Agreements, the issuance and sale of the Securities and the consummation by the
Company of the transactions contemplated hereby and thereby (other than compliance by the
Company with securities and corporation laws, as applicable, as to which such counsel need
not express any opinion), other than such consents and waivers as (i) would not reasonably
be expected to have a Material Adverse Effect, (ii) would not prohibit or adversely affect
the issuance and sale of the Securities, or (iii) have been obtained.
(vii) Except as otherwise disclosed in the Time of Sale Prospectus and the Prospectus,
to the best knowledge of such counsel, there is no litigation nor any governmental
proceedings, pending or threatened that would be required to be described in the Time of
Sale Prospectus and the Prospectus.
(viii) To the best knowledge of such counsel, the Company and each of its Significant
Subsidiaries which are incorporated in the United States has (i) all Authorizations
necessary to engage in the business currently conducted by it in the manner described in
each of the Time of Sale Prospectus and the Prospectus, except where failure to hold such
Authorizations would not reasonably be expected to have a Material Adverse Effect and (ii)
no reason to believe that any governmental body or agency is considering limiting,
suspending or revoking any such Authorization. To the best knowledge of such counsel and
except as would not reasonably be expected to have a Material Adverse Effect, all such
Authorizations are valid and in full force and effect and the Company and its Significant
Subsidiaries which are incorporated in the United States are in compliance in all material
respects with the terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities having jurisdiction with respect thereto. Except
as described in each of the Time of Sale Prospectus and the Prospectus, no insurance
regulatory agency or body has issued any order or decree impairing, restricting or
prohibiting the payment of dividends by any Significant Subsidiary which is incorporated in
the United States of the Company to its parent, other than any such orders or decrees the
issuance of which would not reasonably be expected to have a Material Adverse Effect.
22
(ix) The Company is not and after the application of the net proceeds from the sale of
the Securities will not be, an “investment company” as defined, and subject to regulation
under, the Investment Company Act.
(x) The Incorporated Documents or any further amendment or supplement thereto made by
the Company prior to the Delivery Date (other than the financial statements, notes and
schedules or any other financial, statistical or accounting data included or incorporated by
reference in or omitted from the Incorporated Documents, as to which such counsel need
express no opinion), when they were filed with the Commission and as of the date hereof and
the Delivery Date, complied and comply, as the case may be, as to form in all material
respects with the requirements of the Exchange Act.
(xi) To the best of such counsel’s knowledge, there are no contracts or other documents
which are required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act which have not been described or filed as
exhibits to the Registration Statement.
In addition, such counsel shall state that he has, or members of his staff have, participated
in conferences with other officers and other representatives of the Company, representatives of
Deloitte & Touche, the Underwriters and their counsel in connection with the preparation of the
Registration Statement, the Time of Sale Prospectus and the Prospectus at which conferences the
contents of the Registration Statement, the Time of Sale Prospectus and the Prospectus were
discussed, reviewed and revised. On the basis of the information which was developed in the course
thereof, but without independent review or verification, although such counsel is not passing upon,
and does not assume responsibility for, the accuracy, completeness or fairness of such statements
contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus (except as
indicated above), on the basis of the information which was developed in the course thereof,
considered in light of such counsel’s understanding of applicable law but without independent
verification, such counsel will advise the Underwriters that nothing has come to such counsel’s
attention which causes such counsel to believe that:
1. each part of the Registration Statement, as of the Effective Date and as of the date
hereof (except as to financial statements and related notes, financial, statistical and
accounting data and supporting schedules included or incorporated by reference therein or
omitted therefrom, as to which such counsel may express no belief), contained any untrue
statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, not misleading; or
2. the Time of Sale Prospectus, as of 3:00 p.m., New York City time, on the date hereof
(which you have informed us was the approximate time of the pricing of the offering of the
Securities) and, as amended or supplemented, if applicable, as of the Delivery Date, or the
Prospectus, as of its date and as of the Delivery Date, except as aforesaid, contained or
contains any untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
23
The opinions of such counsel described in this paragraph shall be rendered to the Underwriters
at the request of the Company and shall so state therein. Such opinions may contain customary
recitals, conditions and qualifications.
(f) Stikeman Elliott LLP shall have furnished to the Underwriters its written opinion, as
special Ontario, Canada counsel to the Company, addressed to the Underwriters and dated the
Delivery Date, in form and substance reasonably satisfactory to the Underwriters, substantially to
the effect that:
(i) The Company’s Canadian subsidiary, RGA Life Reinsurance Company of Canada is a
company amalgamated and existing under the laws of Canada and has full power and authority
to conduct its reinsurance business as described in the Time of Sale Prospectus and the
Prospectus.
(ii) The execution and delivery of and performance by the Company of the Transaction
Agreements, the issuance and sale of the Securities and the consummation of the transactions
contemplated hereby and thereby do not constitute or result in a violation or breach of or a
default under (i) the Letters Patent or By-laws (as such terms are defined in such counsel’s
opinion), (ii) the laws of general application of the Jurisdiction (as such term is defined
in such counsel’s opinion), or (iii) to such counsel’s knowledge, any judgment, order or
decree of any court, agency, tribunal, arbitrator or other authority to which the Company’s
Canadian subsidiary is subject.
(iii) No authorization, consent or approval of, or filing, registration, qualification
or recording with any governmental agency or body having jurisdiction in the Jurisdiction
(as such term is defined in such opinion) is required in connection with the execution and
delivery of or performance by the Company of the Transaction Agreements, the issuance and
sale of the Securities and the consummation of the transactions contemplated hereby and
thereby.
The opinions of such counsel described in this paragraph shall be rendered to the Underwriters
at the request of the Company and shall so state therein. Such opinions may contain customary
recitals, conditions and qualifications.
(g) Chancery ▇▇▇▇▇▇▇▇ shall have furnished to the Underwriters its written opinion, as special
Barbados counsel to the Company addressed to the Underwriters and dated such Delivery Date, in form
and substance reasonably satisfactory to the Underwriters, substantially to the effect that:
(i) Each of the Company’s Barbados subsidiaries has been duly incorporated and is
validly existing under the laws of its respective jurisdiction of incorporation, has all
requisite corporate power and authority to own, lease and operate its properties and to
conduct its business as it is currently being conducted and as described in each of the Time
of Sale Prospectus and the Prospectus and is duly qualified and in good standing as a
foreign corporation authorized to do business in each jurisdiction in which the ownership,
leasing and operation of its property and the conduct of its business requires such
24
qualification (except where the failure to be so qualified and in good standing could
not reasonably be expected to have a Material Adverse Effect).
(ii) The execution, delivery and performance by the Company of the Transaction
Agreements, the issuance and sale of the Securities and the consummation of the transactions
contemplated hereby and thereby will not violate, conflict with or constitute a breach of
any of the terms or provisions of, or a default under (or an event that with notice or the
lapse of time, or both, would constitute a default), or require consent under, or result in
the imposition of a lien or encumbrance on any properties of the Company’s Barbados
subsidiaries, or an acceleration of indebtedness pursuant to, (i) the constating documents
of any of the Company’s Barbados subsidiaries, (ii) any material bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or instrument known to such counsel to
which any of the Company’s Barbados subsidiaries is a party or by which any of them or their
property is or may be bound, (iii) any material statute, rule or regulation known to such
counsel to be applicable to any of the Company’s Barbados subsidiaries or any of their
assets or properties, or (iv) any material judgment, order or decree of any Barbados court
or governmental agency or authority having jurisdiction over any of the Company’s Barbados
subsidiaries or their assets or properties. No consent, approval, authorization or order of,
or filing, registration, qualification, license or permit of or with, any Barbados court or
governmental agency, body or administrative agency is required for the execution, delivery
and performance by the Company of the Transaction Agreements, the issuance and sale of the
Securities and the consummation of the transactions contemplated hereby or thereby.
(iii) To the best knowledge of such counsel, no action has been taken and no Barbados
statute, rule or regulation or order has been enacted, adopted or issued by any Barbados
governmental agency that prevents the issuance and sale of the Securities; no injunction,
restraining order or order of any nature by a Barbados court of competent jurisdiction has
been issued that prevents the issuance and sale of the Securities, and to the best knowledge
of such counsel, no action, suit or proceeding is pending against or affecting or threatened
against, any of the Company’s Barbados subsidiaries before any court or arbitrator or any
governmental body, agency or official which, if adversely determined, would prohibit,
interfere with or adversely affect the issuance, sale or marketability of the Securities or
in any manner draw into question the validity of the Transaction Agreements or of the
Securities.
(iv) To the best knowledge of such counsel, each of the Company’s Barbados subsidiaries
has (i) all Authorizations necessary to engage in the business currently conducted by it in
the manner described in each of the Time of Sale Prospectus and the Prospectus, except where
failure to hold such Authorizations would not have a Material Adverse Effect and (ii) no
reason to believe that any governmental body or agency is considering limiting, suspending
or revoking any such Authorization. To the best of such counsel’s knowledge, all such
Authorizations are valid and in full force and effect and the Company’s Barbados
subsidiaries are in compliance in all material respects with the terms and conditions of all
such Authorizations and with the rules and regulations of the regulatory authorities having
jurisdiction with respect thereto. To the best of such counsel’s knowledge, no insurance
regulatory agency or body has issued any order or
25
decree impairing, restricting or prohibiting the payment of dividends by any subsidiary
of the Company to its parent.
The opinions of such counsel described in this paragraph shall be rendered to the Underwriters
at the request of the Company and shall so state therein. Such opinions may contain customary
recitals, conditions and qualifications.
(h) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have furnished to the Underwriters its written
opinion, as counsel to the Underwriters, addressed to the Underwriters and dated the Delivery Date,
in form and substance reasonably satisfactory to the Underwriters.
(i) By the date hereof and on the Delivery Date, Deloitte & Touche shall have furnished to the
Underwriters its letters, in form and substance reasonably satisfactory to the Underwriters,
containing statements and information of the type customarily included in accountants’ initial and
bring-down “comfort letters” to underwriters with respect to the financial statements and certain
financial information contained and incorporated by reference in the Registration Statement, the
Time of Sale Prospectus and the Prospectus.
(j) The Company shall have furnished to the Underwriters a certificate, dated the Delivery
Date, of its President or any Executive or Senior Vice President and its principal financial or
accounting officer stating, in the name of and in their capacity as officers of the Company, that:
(i) The representations, warranties and agreements of the Company in Section 1 are true
and correct in all material respects as of the date hereof and the Delivery Date; the
Company has complied with, in all material respects, all of its agreements contained herein
to be performed prior to or on the Delivery Date; and the conditions set forth in Section 7
have been fulfilled.
(ii) (A) Neither the Company nor any of its subsidiaries has sustained since the date
of the latest audited financial statements included or incorporated by reference in each of
the Time of Sale Prospectus and the Prospectus any material loss or interference with its
business from (I) any governmental or regulatory action, notice, order or decree of a
regulatory authority or (II) fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court, in each case, otherwise than as
set forth in each of the Time of Sale Prospectus and the Prospectus; (B) since such date
there has not been any material change in the capital stock, short-term debt or long-term
debt of the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders’ equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in each of the Time of Sale Prospectus and the Prospectus; and (C) the Company
has not declared or paid any dividend on its capital stock, except for dividends declared in
the ordinary course of business and consistent with past practice, otherwise than as set
forth in each of the Time of Sale Prospectus and the Prospectus and, except as set forth or
contemplated in each of the Time of Sale Prospectus and the Prospectus, neither the Company
nor any of its subsidiaries has entered into any transaction or agreement (whether
26
or not in the ordinary course of business) material to the Company and its subsidiaries
taken as a whole.
(iii) They have carefully examined the Registration Statement, the Time of Sale
Prospectus and the Prospectus and, in their opinion (A) the Registration Statement, as of
the Effective Date, did not include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, (B) the Time of Sale Prospectus, as of the date hereof and, as
amended or supplemented, if applicable, as of the Delivery Date, did not include any untrue
statement of a material fact and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (C) the Prospectus, as of the date hereof and as of
the Delivery Date, did not include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading and
(D) since the Effective Date, no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement, the Time of Sale Prospectus or the
Prospectus.
(k) The Indenture, in form and substance reasonably satisfactory to the Company and the
Underwriters, shall have been duly executed and delivered by the Company and the Trustee, and the
Securities shall have been duly executed and delivered by the Company and duly authenticated by the
Trustee.
(l) On or prior to the Delivery Date, counsel to the Underwriters shall have been furnished
with such documents as they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated and related proceedings or in order
to evidence the accuracy and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and their counsel.
(m) Neither the Company nor any of its subsidiaries (i) shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Time of Sale
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in each of the Time of Sale
Prospectus and the Prospectus or (ii) since such date there shall not have been any change in the
capital stock, short term debt or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the general affairs,
management, financial position, prospects, stockholders’ equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated in each of the Time of
Sale Prospectus and the Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is, in the judgment of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of the Securities being
delivered on the Delivery Date on the terms and in the manner contemplated in the Time of Sale
Prospectus and the Prospectus.
27
(n) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have
occurred in the rating accorded the Company’s or any Significant Subsidiary’s debt securities or
financial strength by any “nationally recognized statistical rating organization”, as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the Securities Act, (ii) no such
organization shall have publicly announced or privately communicated to the Company or any
Significant Subsidiary that it has under surveillance or review, with possible negative
implications, its rating of any of the Company’s or any Significant Subsidiary’s debt securities or
financial strength, other than as specifically set forth in Section 1(y) of this Agreement or as
set forth or contemplated in each of the Time of Sale Prospectus and the Prospectus, and (iii) the
Securities shall have continued to be rated (x) Baa1 by ▇▇▇▇▇’▇, Investor Service, Inc., (y) A- by
Standard & Poor’s Corporate Ratings Services, and (x) a- by A.M. Best Company, Inc.
(o) On or after the date hereof there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the
New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by
either federal or New York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United States of a national
emergency or war; or (v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the judgment of the Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Securities on the terms and
in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel to the Underwriters. No opinion shall state that
it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written
policy or other document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991). All opinions (other than the opinion
referred to in 7(h) above) shall state that they may be relied upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP as to matters of law (other than New York and federal law).
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter, its officers and employees
and each person, if any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of the Securities), to which that Underwriter, officer, employee or controlling
person may become subject, under the Securities Act or otherwise insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any (A) the Registration Statement, the Time of
Sale Prospectus, any free writing prospectus that the Company has filed or is required to file with
the Commission pursuant to Rule 433(d) of the Securities Act, the Prospectus or in any amendment or
supplement thereto or (B) any blue sky application or other document prepared or
28
executed by the Company (or based upon any written information furnished by the Company) filed
in any jurisdiction specifically for the purpose of qualifying any or all of the Securities under
the securities laws of any state or other jurisdiction (such application, document or information
being hereinafter called a “Blue Sky Application”) or (ii) the omission or alleged omission to
state in the Registration Statement, the Time of Sale Prospectus, any free writing prospectus that
the Company has filed or is required to file with the Commission pursuant to Rule 433(d) of the
Securities Act, the Prospectus or in any amendment or supplement thereto, or in any Blue Sky
Application, any material fact required to be stated therein or necessary to make the statements
therein (and with respect to the Time of Sale Prospectus, the Prospectus or any such issuer free
writing prospectus, in the light of the circumstances under which such statements are made) not
misleading; and shall reimburse each Underwriter and each such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Time of Sale Prospectus, any free writing
prospectus that the Company has filed or is required to file with the Commission pursuant to Rule
433(d) of the Securities Act, or the Prospectus, or in any such amendment or supplement, in
reliance upon and in conformity with the written information concerning that Underwriter furnished
to the Company through the Representatives by or on behalf of any Underwriter concerning that
Underwriter expressly for inclusion therein (which consists of the information specified in Section
1(c)). The foregoing indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or to any officer, employee or controlling person of that
Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless, the
Company, its officers and employees, each of its directors, and each person, if any, who controls
the Company within the meaning of the Securities Act from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the Company, or any such
director, officer, employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Time of Sale Prospectus, any free writing prospectus that the Company
has filed or is required to file with the Commission pursuant to Rule 433(d) of the Securities Act,
or the Prospectus or in any amendment or supplement thereto, or in any Blue Sky Application or (ii)
the omission or alleged omission to state in the Registration Statement, the Time of Sale
Prospectus, any free writing prospectus that the Company has filed or is required to file with the
Commission pursuant to Rule 433(d) of the Securities Act, or the Prospectus or in any amendment or
supplement thereto or in any Blue Sky Application, any material fact required to be stated therein
or necessary to make the statements therein (and with respect to the Time of Sale Prospectus, the
Prospectus or any such free writing prospectus, in the light of the circumstances under which such
statements are made) not misleading, but in each case only to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with the written information furnished to the Company through the Representatives by or
on behalf of that Underwriter expressly for inclusion therein (which consists of the information
specified in Section 1(c)), and shall reimburse the Company and any such director, officer,
29
employee or controlling person promptly upon demand for any legal or other expenses reasonably
incurred by the Company or any such director, officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim
or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it may have under
Section 8(a), 8(b) or 8(c) except to the extent it has been materially prejudiced by such failure
and, provided, further, that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than under this Section 8. If any
such claim or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party under this Section 8
for any legal or other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; provided, however, that the
Underwriters shall each have the right to employ separate counsel to represent the Underwriters and
their respective officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the Underwriters against
the Company under this Section 8 if, in the reasonable judgment of counsel to such Underwriters it
is advisable for such Underwriters, officers, employees and controlling persons to be jointly
represented by separate counsel, due to the availability of one or more legal defenses to them
which are different from or additional to those available to the indemnifying party, and in that
event the reasonable fees and expenses of such separate counsel shall be paid by the Company;
provided further, that the Company shall not be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to one local counsel in each relevant jurisdiction) at any
time for all such indemnified parties. No indemnifying party shall, (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii)
be liable for any settlement of any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by reason of such settlement
or judgment.
30
(d) If the indemnification provided for in this Section 8 shall for any reason be unavailable
or insufficient to hold harmless an indemnified party under Section 8(a), 8(b) or 8(c) in respect
of any loss, claim, damage or liability, or any action in respect thereof, referred to therein,
other than to the extent that such indemnification is unavailable or insufficient due to a failure
to provide prompt notice in accordance with Section 8(c), then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the offering of the
Securities, or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) but also the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or omissions or alleged statements or
alleged omissions that resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses) received by the Company on
the one hand, and the total underwriting discounts and commissions realized or received by the
Underwriters with respect to the Securities purchased under this Agreement, on the other hand, bear
to the total gross proceeds from the offering of the Securities under this Agreement, in each case,
as set forth in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if the amount of contributions pursuant
to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation, which does not take
into account the equitable considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for purposes of this
Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the provisions
of this Section 8(d), no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute as
provided in this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
9. Defaulting Underwriters. If, on the Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the principal amount of Securities which the defaulting Underwriter
agreed but failed to purchase on the Delivery Date in the respective proportions which the
31
principal amount of the Securities set forth opposite the name of each remaining
non-defaulting Underwriter in Schedule 1 hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining non-defaulting Underwriters in
Schedule 1 hereto; provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Securities on the Delivery Date if the total principal amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 10% of the total aggregate principal amount of the Securities to be purchased on the
Delivery Date, and any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the aggregate principal amount of the Securities which it agreed to purchase on the
Delivery Date pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, the total aggregate principal amount of
Securities to be purchased on the Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to purchase on the Delivery Date the
total aggregate principal amount of Securities which the defaulting Underwriters agreed but failed
to purchase on the Delivery Date, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter and the Company, except that the Company will continue to be
severally liable for the payment of expenses to the extent set forth in Sections 6 and 11. As used
in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to this Section
9, purchases Securities which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company for damages caused by its default. If other underwriters are obligated or agree to
purchase the Securities of a defaulting or withdrawing Underwriter, either the Representatives or
the Company may postpone the Delivery Date for up to seven full business days in order to effect
any changes that, in the opinion of counsel to the Company or counsel to the Underwriters, may be
necessary in the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be terminated by the
Underwriters by notice given to and received by the Company prior to delivery of and payment for
the Securities if, prior to that time, any of the events described in Sections 7(m), 7(n) or 7(o)
shall have occurred or if the Underwriters shall decline to purchase the Securities for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters Expenses. If (a) the Company shall fail to tender the
Securities for delivery to the Underwriters by reason of any failure, refusal or inability on the
part of the Company to perform any agreement on its part to be performed, or because any other
condition of the Underwriters’ obligations hereunder required to be fulfilled by the Company
(including, without limitation, with respect to the transactions) is not fulfilled (other than as a
result of the condition described in Section 7(o)) or (b) the Underwriters shall decline to
purchase the Securities for any reason permitted under this Agreement (including the termination of
this Agreement pursuant to Section 10) (other than as a result of the condition described in
Section 7(o)), the Company shall reimburse the Underwriters for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the Underwriters in connection
with this Agreement and the proposed purchase of the Securities, and upon demand the Company shall
pay
32
the full amount thereof to the Underwriters. If this Agreement is terminated pursuant to
Section 9 by reason of the default of one or more Underwriters, the Company shall not be obligated
to reimburse any defaulting Underwriter on account of those expenses.
12. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Securities, represents the entire agreement between the Company and
the Underwriters with respect to the preparation of any Preliminary Prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the
Securities.
(b) The Company acknowledges that in connection with the offering of the Securities: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and (iii) the Underwriters may have interests that differ
from those of the Company. The Company waives to the full extent permitted by applicable law any
claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in
connection with the offering of the Securities.
13. Notices, etc. Notices given pursuant to any provision of this Agreement shall be given in
writing and shall be addressed as follows:
(a) if to the Underwriters, to: c/o Barclays Capital Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Syndicate Registration (Fax No.: ▇▇▇-▇▇▇-▇▇▇▇) and UBS Securities LLC, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Fixed Income Syndicate (Fax No.:
▇▇▇-▇▇▇-▇▇▇▇); and
with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq. (Fax No.: ▇▇▇-▇▇▇-▇▇▇▇); and
(b) if to the Company, to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇, Senior Executive Vice President and Chief Financial Officer (Fax No.:
▇▇▇-▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Senior Vice President and Associate General
Counsel and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. Executive Vice President, General Counsel and Secretary, at the
same address (Fax No.: ▇▇▇-▇▇▇-▇▇▇▇); and
with a copy to ▇▇▇▇▇ ▇▇▇▇ LLP, One Metropolitan Square, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇, Esq. (Fax No.: ▇▇▇-▇▇▇-▇▇▇▇) and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq. (Fax No.: ▇▇▇-▇▇▇-▇▇▇▇);
provided, however, that any notice to an Underwriter pursuant to Section 8(c) shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its
acceptance telex to the Representatives, which address will be supplied to any other party hereto
by the Representatives upon request. Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the Underwriters by the
Representatives.
33
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those persons, except that (A)
the representations, warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the officers, directors and employees of
the Underwriters and the person or persons, if any, who control any Underwriter within the meaning
of Section 15 of the Securities Act and (B) any indemnity agreement of the Underwriters contained
in this Agreement shall be deemed to be for the benefit of directors, trustees, officers and
employees of the Company, and any person controlling the Company within the meaning of Section 15
of the Securities Act. Nothing contained in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 14, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision contained herein.
15. Survival. The respective indemnities, representations, warranties and agreements of the
Company and the Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any of them or any person
controlling any of them.
16. Definition of the term “Business Day.” For purposes of this Agreement, “business day”
means any day on which the New York Stock Exchange is open for trading.
17. Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
18. Counterparts. This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts shall each be deemed to be an original but
all such counterparts shall together constitute one and the same instrument.
19. Headings. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
The rest of this page has been left blank intentionally; the signature page follows.
34
If the foregoing correctly sets forth the agreement between the Company and the Underwriters,
please indicate your acceptance in the space provided for that purpose below.
| Very truly yours, REINSURANCE GROUP OF AMERICA, INCORPORATED |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Executive Vice President – Corporate Finance and Treasurer |
|||
Accepted and agreed by:
BARCLAYS CAPITAL INC.
UBS SECURITIES LLC
UBS SECURITIES LLC
For Themselves and as Representatives
of the Several Underwriters
of the Several Underwriters
| BARCLAYS CAPITAL INC. |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| UBS SECURITIES LLC |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇ | |||
| Title: | Executive Director Debt Capital Markets |
|||
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Director Debt Capital Markets |
|||
Schedule 1
| Aggregate Principal | ||||
| Amount of Securities | ||||
| Underwriter | to be Purchased | |||
Barclays Capital Inc. |
$ | 140,000,000.00 | ||
UBS Securities LLC |
140,000,000.00 | |||
Calyon Securities (USA) Inc. |
20,000,000.00 | |||
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. |
20,000,000.00 | |||
▇▇▇▇▇▇▇ and Partners Securities LLC |
20,000,000.00 | |||
SG Americas Securities, LLC |
20,000,000.00 | |||
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc |
20,000,000.00 | |||
Sterne, Agee & ▇▇▇▇▇, Inc. |
20,000,000.00 | |||
Total |
$ | 400,000,000.00 | ||
S-2-2
Schedule 2
1. Form of Issuer Free Writing Prospectus Term Sheet
Issuer Free Writing Prospectus, dated November 3, 2009
Filed pursuant to Rule 433(d) under the Securities Act of 1933
Supplementing the Preliminary Prospectus Supplement, dated November 3, 2009
Registration Statement Nos. 333-156052, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇
Filed pursuant to Rule 433(d) under the Securities Act of 1933
Supplementing the Preliminary Prospectus Supplement, dated November 3, 2009
Registration Statement Nos. 333-156052, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇
Reinsurance Group of America, Incorporated
$400,000,000 6.45% SENIOR NOTES DUE 2019
FINAL TERMS AND CONDITIONS
FINAL TERMS AND CONDITIONS
Issuer: |
Reinsurance Group of America, Incorporated | |
Size: |
$400,000,000 | |
Maturity Date: |
November 15, 2019 | |
Coupon: |
6.45% | |
Public Offering Price: |
99.83% of face amount | |
Underwriting Discount: |
0.650% | |
Yield to Maturity: |
6.473% | |
Benchmark Treasury: |
3.625% due August 15, 2019 | |
Spread to Benchmark Treasury: |
300 basis points | |
Benchmark Treasury Yield: |
3.473% | |
Selling Concession: |
40 basis points | |
Reallowance: |
25 basis points | |
Interest Payment Dates: |
November 15 and May 15, commencing May 15, 2010 | |
Make-whole call: |
At any time at a discount rate of Treasury plus 45 basis points | |
Settlement Date: |
November 6, 2009 | |
CUSIP/ISIN: |
▇▇▇▇▇▇▇▇▇/US759351AG40 | |
Ratings (▇▇▇▇▇’▇/S&P/A.M. Best)*: |
Baa1/A-/a- | |
Joint Bookrunners: |
Barclays Capital Inc. and UBS Securities LLC | |
Co-Managers: |
Calyon Securities (USA) Inc., ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc., ▇▇▇▇▇▇▇ | |
| and Partners Securities LLC, SG Americas Securities, LLC, ▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇ & Associates, Inc. and Sterne, Agee & ▇▇▇▇▇, Inc. |
Allocations:
| Principal Amount | ||||
Barclays Capital Inc. |
$ | 140,000,000 | ||
UBS Securities LLC |
140,000,000 | |||
Calyon Securities (USA) Inc. |
20,000,000 | |||
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. |
20,000,000 | |||
▇▇▇▇▇▇▇ and Partners Securities LLC |
20,000,000 | |||
SG Americas Securities, LLC |
20,000,000 | |||
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. |
20,000,000 | |||
Sterne, Agee & ▇▇▇▇▇, Inc. |
20,000,000 | |||
Total |
$ | 400,000,000 | ||
| * | An explanation of the significance of ratings may be obtained from the rating agencies. Generally, rating agencies base their ratings on such material and information, and such of their own investigations, studies and assumptions, as |
| they deem appropriate. The rating of the notes should be evaluated independently from similar ratings of other securities. A credit rating of a security is not a recommendation to buy, sell or hold securities and may be subject to review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency. |
The issuer has filed a registration statement (including a prospectus, which consists of a
preliminary prospectus supplement dated November 3, 2009 and an attached prospectus dated December
10, 2008) with the SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents the issuer has filed
with the SEC for more complete information about the issuer and this offering. You may get these
documents for free by visiting ▇▇▇▇▇ on the SEC’s Website at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the
issuer, any underwriter or any dealer participating in the offering will arrange to send you the
prospectus if you request it by calling Barclays Capital Inc. toll-free at ▇▇▇-▇▇▇-▇▇▇▇, or by
calling UBS Securities LLC toll-free at ▇▇▇-▇▇▇-▇▇▇▇, Ext. 561-3884.
2. Road Show, as posted on Bloomberg on November 3, 2009, with restricted access.
Schedule 3
LIST OF SUBSIDIARIES OF
REINSURANCE GROUP OF AMERICA, INCORPORATED
REINSURANCE GROUP OF AMERICA, INCORPORATED
As of the date of this Agreement
Reinsurance Group of America, Incorporated: subsidiary, of which approximately 52.5% of this
company’s stock is owned by General American Life Insurance Company, and the balance is held by the
public.
RGA Technology Partners, Inc.: 100% owned subsidiary, formed to develop and market
technology solutions for the insurance industry.
RGA Capital Trust I, a Delaware statutory trust: 100% owned subsidiary (trust common
securities), formed to issue PIERS securities in December 2001.
RGA Global Reinsurance Company, Ltd., a Bermuda corporation, 100% owned by Reinsurance Group
of America, Incorporated, formed to write non-U.S. based reinsurance for countries outside
North America.
General American Argentina Seguros de Vida S.A.: Argentinean subsidiary 95% owned by RGA
and 5% owned by RGA Reinsurance Company (Barbados) Ltd., engaged in business as a life,
annuity, disability and survivorship insurer.
Reinsurance Company of Missouri, Incorporated: 100% owned subsidiary formed for the purpose
of owning RGA Reinsurance Company.
Parkway Reinsurance Company: 100% owned subsidiary to function as a special purpose
reinsurance captive in Missouri.
Timberlake Financial, L.L.C.: 100% owned subsidiary to function as a holding company
for a special purpose insurance subsidiary, Timberlake Reinsurance Company II, and to issue
one or more series of notes for the purpose of financing the operations of Timberlake
Reinsurance Company II.
Timberlake Reinsurance Company II: 100% owned subsidiary owned to function as a
special purpose financial captive incorporated in the State of South Carolina.
RGA Reinsurance Company: subsidiary engaged in the reinsurance business.
S-3-1
Reinsurance Partners, Inc.: wholly-owned subsidiary of Fairfield
Management Group, Inc., engaged in business as a reinsurance
brokerage company.
RGA Reinsurance Company (Barbados) Ltd.: 100% owned subsidiary of Reinsurance Group of
America, Incorporated formed to engage in the exempt insurance business.
RGA Financial Group, L.L.C.: 55% owned by RGA Reinsurance Company (Barbados) Ltd.
and 45% owned by Reinsurance Group of America, Incorporated. Formed to market and
manage financial reinsurance business to be assumed by RGA Reinsurance Company.
RGA Worldwide Reinsurance Company, Ltd. (f/k/a Triad Re, Ltd.): Reinsurance Group of
America, Incorporated owns 100% of all outstanding and issued shares of the Company’s
preferred stock and 100% of all outstanding and issued shares of the Company’s common stock.
RGA Atlantic Reinsurance Company, Ltd. – Reinsurance Group of America, Incorporated owns
100% of this company formed in Barbados as an exempt insurance company.
RGA Americas Reinsurance Company, Ltd.: Reinsurance Group of America, Incorporated owns
100% of this company formed as a Reinsurance Company.
RGA Life Reinsurance Company of Canada: a Canadian corporation wholly-owned by Reinsurance
Group of America, Incorporated formed for the Purpose of a Reinsurer.
RGA International Corporation (Nova Scotia ULC): a Nova Scotia unlimited liability company
100% owned by Reinsurance Group of America, Incorporated (100 common shares). Formed for
the purpose of a general business holding company; marketing for RGA International line of
business.
RGA Holdings Limited (U.K.): holding company formed in the United Kingdom to own three
operating companies: RGA UK Services Limited, RGA Capital Limited and RGA Reinsurance (UK)
Limited.
RGA Capital Limited (U.K.): company is a corporate member of a Lloyd’s life
syndicate 429.
RGA Reinsurance (UK) Limited: company to act as reinsurer.
RGA UK Services Limited (Formerly RGA Managing Agency Limited): active company;
Provision of management services to RGA group companies.
RGA Services India Private Limited: 99% owned by Reinsurance Group of America,
Incorporated. 1% owned by RGA Holdings Limited (UK). Formed for the purpose of providing
administrative and support services and development of information technology and software
products.
S-3-2
RGA International Reinsurance Company Limited (Ireland): 100% owned by Reinsurance Group of
America, Incorporated. Reinsurance company to be used for International Division business
not written in Australian and South African subsidiaries.
RGA Australian Holdings Pty Limited: holding company formed to own RGA Reinsurance Company
of Australia Limited.
S-3-2
RGA Reinsurance Company of Australia Limited: 100% owned by RGA Australian Holdings
Pty Limited. Formed to reinsure the life, health and accident business of
non-affiliated Australian insurance companies.
RGA Asia Pacific Pty Limited.: 100% owned by RGA Australian Holdings Pty Limited.
Formed to operate division matters.
RGA South African Holdings (Pty) Ltd.: 100% owned by Reinsurance Group of America,
Incorporated formed for the purpose of holding RGA Reinsurance Company of South Africa
Limited.
RGA Reinsurance Company of South Africa Limited: 100% owned by RGA South African
Holdings (Pty) Ltd. — Reinsurance company.
Malaysian Life Reinsurance Group Berhad: 30% owned by Reinsurance Group of America,
Incorporated. Formed for the purpose to carry on the business of reinsurance of life,
accident and health insurance and related products.
RGA Services (Singapore) Pty. Ltd. – 100% owned by Reinsurance Group of America,
Incorporated formed for the purpose of a service company.
S-3-3
Schedule 4
JURISDICTIONS OF FOREIGN QUALIFICATION
RGA Reinsurance Company:
Alabama
California
Colorado
Florida
Virginia
RGA Life Reinsurance Company of Canada:
British Columbia
S-4