UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): November 6, 2003
REINSURANCE GROUP OF AMERICA, INCORPORATED
(Exact Name of Registrant as Specified in its Charter)
MISSOURI 1-11848 43-1627032
(State or Other Jurisdiction of (Commission (IRS Employer
Incorporation) File Number) Identification Number)
1370 Timberlake Manor Parkway, Chesterfield, Missouri 63017
(Address of Principal Executive Office)
Registrant's telephone number, including area code: (636) 736-7000
ITEM 5. OTHER EVENTS
On November 6, 2003, RGA issued a press release announcing the pricing of
the offering of 10,500,000 shares of its common stock. RGA has granted the
underwriters a 30-day option to purchase up to 1,575,000 additional shares of
common stock. A copy of this press release is filed with this report as
Exhibit 99.1 and incorporated by reference herein.
In order to furnish certain exhibits for incorporation by reference into
the registration statement related to this offering, RGA is filing the
underwriting agreement relating to the offering and an opinion of RGA's counsel
regarding the validity of the shares.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
Exhibit No. Exhibit
1.1 Underwriting Agreement, dated November 6, 2003, by
and among RGA, Goldman, Sachs & Co. and Lehman
Brothers Inc. and each of the other underwriters
named in Schedule 1 thereto
5.1 Opinion of James E. Sherman, Esq.
23.1 Consent of James E. Sherman, Esq.
99.1 Press release of Reinsurance Group of America,
Incorporated dated November 6, 2003 announcing the
pricing of the offering of 10,500,000 shares of its
common stock.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
REINSURANCE GROUP OF AMERICA,
INCORPORATED
Date: November 7, 2003 By: /s/ Jack B. Lay
--------------------------------------
Jack B. Lay
Executive Vice President and Chief
Financial Officer
EXHIBIT INDEX
Exhibit No. Exhibit
- ----------- -------
1.1 Underwriting Agreement, dated November 6, 2003, by and among RGA, Goldman,
Sachs & Co. and Lehman Brothers Inc. and each of the other underwriters named
in Schedule 1 thereto
5.1 Opinion of James E. Sherman, Esq.
23.1 Consent of James E. Sherman, Esq. (included in Exhibit 5.1)
99.1 Press release of Reinsurance Group of America, Incorporated dated November 6,
2003 announcing the pricing of the offering of 10,500,000 shares of its
common stock.
EX 1.1
EXECUTION COPY
10,500,000 SHARES
REINSURANCE GROUP OF AMERICA, INCORPORATED
COMMON STOCK
UNDERWRITING AGREEMENT
November 6, 2003
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, New York 10019
As Representatives of the several
Underwriters named in Schedule 1
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 to sell an aggregate of 10,500,000 shares (the "FIRM
SHARES") of Common Stock, par value $0.01 per share, ("COMMON STOCK"), and to
grant the option described in Section 4(b) hereof to purchase all or any part of
1,575,000 additional shares of its Common Stock to cover over-allotments (the
"OPTION SHARES"), if any, to Lehman Brothers Inc. and Goldman, Sachs & Co.
(together, the "REPRESENTATIVES") and the other underwriters named in Schedule 1
hereto (collectively, the "UNDERWRITERS"). The Firm Shares and the Option Shares
are hereinafter called, collectively, the "SHARES" and the issue and sale of the
Shares to the Underwriters under this Agreement is hereinafter called the
"OFFERING." This is to confirm the agreement among the Company and the
Underwriters concerning the offer, issuance and sale of the Shares.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees with the Underwriters that:
(a) Registration statements on Form S-3 (File No.'s 333-108200,
333-108200-01 and 333-108200-02) (collectively, the "REGISTRATION STATEMENT")
setting forth information with respect to the Company and the Shares have (i)
been prepared by the Company in conformity in all material respects with the
requirements of the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission (the "COMMISSION")
thereunder (collectively, the "SECURITIES ACT"), (ii) been filed with the
Commission under the
Securities Act and (iii) become effective under the Securities Act. 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 the Registration Statement or the most recent
post-effective amendment thereto, if any, was, declared effective by the
Commission; "EFFECTIVE DATE" means the date of the Effective Time; "PRELIMINARY
PROSPECTUS" means each prospectus included in such 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 Representatives pursuant to Rule 424(a) of the
Securities Act relating to the Shares; the term "REGISTRATION STATEMENT"
includes such 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 Shares 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 of
the Securities Act; and "PROSPECTUS" means the prospectus and prospectus
supplement relating to the Shares in the form first used to confirm sales of
Shares. Reference made herein to any Preliminary Prospectus or to the Prospectus
shall be deemed to refer to and include any Incorporated Documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act,
as of the date of such Preliminary Prospectus or the Prospectus, as the case may
be, and any reference to any amendment or supplement to any Preliminary
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 such Preliminary Prospectus or the Prospectus, as the
case may be, and incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any 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 order preventing or
suspending the use of any Preliminary 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) 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; the Registration Statement and any amendment thereto does not
and will not, as of the applicable Effective Date, 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; and the
Prospectus does not and will not, as of the date hereof and any applicable
Delivery Date (as defined below), 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 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 or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Underwriters specifically for
inclusion therein as provided in Section 8(e).
2
(d) The documents incorporated by reference in the Prospectus (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 light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents are filed with Commission, will conform in all material respects to
the 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 light of the
circumstances in which they were made, not misleading.
(e) 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
the Prospectus which is not so described.
(f) There are no contracts, agreements or other documents which are
required to be described in 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 the
Prospectus or filed as exhibits to the Registration Statement or the
Incorporated Documents.
(g) Except as set forth in or contemplated by 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
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 (a "MATERIAL
LOSS"); 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 (a
"MATERIAL ADVERSE CHANGE"); and subsequent to the respective dates as of which
information is given in the Prospectus and up to the applicable Delivery Date,
except as set forth in the Prospectus, (i) 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 (ii) 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.
(h) 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 Limited 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 the
Prospectus and to own, lease and operate its
3
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, conditions (financial or
otherwise), affairs or prospects of the Company and its subsidiaries, taken as a
whole (a "MATERIAL ADVERSE EFFECT").
(i) The entities listed on Schedule 2 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 2 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.
(j) 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.
(k) The catastrophic coverage arrangements described in 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
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.
(l) The execution, delivery and performance by the Company of this
Agreement, the issuance of the Shares and the consummation 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
4
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
National Association of Securities Dealers, Inc. (the "NASD"). 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 this Agreement, the issuance of the Shares and the consummation
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 of any of the Shares and (iii) have
been obtained and made under the Securities Act, state or foreign securities or
Blue Sky laws and regulations or such as may be required by the NASD. No
consents or waivers from any other person are required for the execution,
delivery and performance by the Company of this Agreement, the issuance of the
Shares 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 Shares and (iii) have been obtained.
(m) 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 and (iii) no injunction, restraining
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 of any of the Shares or (z) in any manner draw into question the
validity of this Agreement or of the Shares.
(n) 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 (collectively, "ERISA"), or analogous foreign laws and
regulations, which would reasonably be expected to result in a Material Adverse
Effect.
(o) 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 the Prospectus as owned by it, free and clear of all liens,
charges, encumbrances and restrictions, except such as
5
are described in 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 the Prospectus, except where failure to hold such
Authorizations would not reasonably be expected to have a Material Adverse
Effect, (iv) have 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 could 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.
(p) 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.
(q) Neither the Company nor any of its subsidiaries is, or after the
application of the net proceeds from the sale of the Shares 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.
(r) 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 the Prospectus. The Company had at September
30, 2003, an authorized and outstanding capitalization as set forth in the
Prospectus and, except with respect to warrants to purchase Common Stock issued
by the Company as part of the Trust Premium Income Equity Redeemable Securities
of the Company and RGA Capital Trust I (the "WARRANTS") or otherwise as
expressly set forth in the Prospectus, there are no outstanding preemptive or
other rights, warrants or options to acquire, or instruments convertible
6
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. There has been
no change in the authorized or outstanding capitalization of the Company since
the date indicated in the Prospectus, except with respect to (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.
(s) The Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus, including any
sales pursuant to Rule 144A under, or Regulations D or S of, the Securities Act
other than shares issued pursuant to employee benefit plans, qualified stock
options plans or other employee compensation plans or pursuant to outstanding
options, rights or warrants.
(t) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that:
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect thereto.
(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
applicable Delivery Date.
(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 execution, delivery and performance by the Company of this Agreement, the
issuance of the Shares and the consummation of the transactions contemplated
hereby and thereby, to violate Regulation G (12 C.F.R. Part 207), 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 certified the
financial statements and supporting schedules included or incorporated by
reference in the Prospectus are independent accountants 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 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
7
in 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 2002 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
Subsidiaries for the periods covered thereby.
(y) The Company and the Insurance Subsidiaries have made no material
changes in their insurance reserving practices since June 30, 2003, except where
such change in such insurance reserving practices would not reasonably be
expected to have a Material Adverse Effect.
(z) The Company's senior long-term debt is rated "A-" by A.M. Best
Company, Inc., "Baa1" by Moody's Investor Services and "A-" by Standard & Poor's
Rating Services, Inc.; (ii) RGA Reinsurance Company has a financial strength
rating of "A+" (Superior) from A.M. Best Company, Inc., "A1" from Moody's
Investor Services and "AA-" from Standard & Poor's Rating Services, Inc.; (iii)
RGA Life Reinsurance Company of Canada has a financial strength rating of "A+"
(Superior) from A.M. Best Company, Inc. and "AA-" from Standard & Poor's Rating
Services, Inc.; 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.
(aa) 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.
(bb) Except as described in the Prospectus, with respect to MetLife,
Inc., Metropolitan Life Insurance Company ("METLIFE") and General American Life
Insurance Company ("GENERAL AMERICAN"), 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 and MetLife, Inc., MetLife
and General American have executed agreements waiving their rights to require
registration of any securities of the Company held by MetLife, Inc. or MetLife
as a result of the transaction contemplated hereby.
(cc) The Shares have been duly authorized for issuance and sale by the
Company pursuant to this Agreement and, when duly issued and delivered pursuant
to the provisions of this Agreement against payment of the consideration
therefor in accordance with this Agreement, will be validly issued, free of
preemptive rights, fully paid and nonassessable.
8
(dd) Neither the Company, nor to its knowledge, any of its Affiliates
(as defined in Regulation C of the Securities Act, an "AFFILIATE"), has taken,
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 Shares to facilitate the sale
or resale of such Shares.
(ee) 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.
2. Purchase of the Shares by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the several
Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company the aggregate number of Firm Shares set forth opposite
that Underwriter's name in Schedule 1 hereto. The price of the Firm Shares shall
be $35.00 per share with regard to the Firm Shares being resold by the
Underwriters to parties other than MetLife, Inc. and its affiliates. The price
of the Firm Shares shall be $36.65 per share with regard to the Firm Shares
being resold by the Underwriters to MetLife, Inc. and its affiliates. The
Company shall not be obligated to deliver any of the Firm Shares to be delivered
on the First Delivery Date (as defined below) except upon payment for all the
Firm Shares to be purchased on the First Delivery Date as provided herein.
3. Offering of Shares by the Underwriters. The several Underwriters
propose to offer the Shares for sale upon the terms and conditions set forth in
the Prospectus.
4. Delivery of and Payment for the Shares. (a) Delivery of and
payment for the Firm Shares shall be made at the office of King & Spalding LLP,
1185 Avenue of the Americas, New York, New York 10036, 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 Shares 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 between the Underwriters and the
Company (such date and time of delivery of and payment for the Firm Shares, the
"FIRST DELIVERY DATE"). On the First Delivery Date, the Company shall deliver or
cause to be delivered certificates representing the Shares 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 Shares 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 First Delivery Date.
If the Representatives so elect, delivery of the Firm Shares
may be made by credit through full fast transfer to the accounts at The
Depository Trust Company designated by the Representatives.
(a) The Company hereby grants the Option to the Underwriters to
purchase the Option Shares at the same purchase price per share as the
Underwriters shall pay for the Firm Shares being resold by the Underwriters to
parties other than MetLife, Inc. and its affiliates. The Option may be exercised
in whole or in part from time to time at any time not more than 30 days
9
subsequent to the date of this Agreement upon notice in writing delivered by
facsimile by the Representatives, on behalf of themselves and the other
Underwriters to the Company setting forth the number of whole Option Shares as
to which the Underwriters are exercising the Option.
The date for the delivery of and payment for the Option
Shares, being herein referred to as an "OPTION DELIVERY DATE", which may be the
First Delivery Date (the First Delivery Date and the Option Delivery Date, if
any, being sometimes referred to as a "DELIVERY DATE"), shall be determined by
the Underwriters but shall not be later than five full business days after
written notice of election to purchase Option Shares is given. On the Option
Delivery Date, the Company shall deliver or cause to be delivered certificates
representing the Option Shares 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 Option Shares shall be registered in the name and in such
denominations as the Representatives shall request in writing not less than two
full business days prior to the Option Delivery Date.
If the Representatives so elect, delivery of the Option Shares
may be made by credit through full fast transfer to the accounts at The
Depository Trust Company designated by the Representatives.
5. Further Agreements of the Company. The Company further agrees:
(a) To prepare the Prospectus in a form approved by the Representatives
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 to the Prospectus
prior to any applicable Delivery Date 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 the Prospectus or any amended Prospectus has been filed 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 in connection with the offering or sale of
the Shares; 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 or the
Prospectus, of the suspension of the qualification of the Shares 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 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 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,
10
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 Prospectus and any amended or supplemented
Prospectus, and, if the delivery of a prospectus is required at any time after
the Effective Time in connection with the offering or sale of the Shares and if
at such time any events shall have occurred as a result of which the Prospectus
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 light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary to amend or supplement 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 Prospectus which will correct such
statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Representatives, be
required by the Securities Act or is requested by the Commission;
(e) For so long as the delivery of a prospectus is required in
connection with the initial offering or sale of the Shares, prior to filing with
the Commission any amendment to the Registration Statement or supplement to the
Prospectus or any Prospectus and any document incorporated by reference 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 Representatives to the filing;
(f) 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 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);
(g) Promptly from time to time, to take such action as the
Representatives may reasonably request to qualify the Shares for offering and
sale under the securities laws of such jurisdictions in the United States and
Canada 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 Shares; 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;
(h) 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
Shares (except after consultation with the Underwriters and as may be permitted
by under federal securities laws);
11
(i) To use its commercially reasonable efforts to list, subject to
official notice of issuance, the Shares on the New York Stock Exchange (the
"NYSE");
(j) To apply the net proceeds from the issuance of the Shares as set
forth under "Use of Proceeds" in the Prospectus;
(k) To take such steps as shall be necessary to ensure that the Company
and its subsidiaries shall not become an "investment company" as defined, and
subject to regulation, under the Investment Company Act; and
(l) For a period of 90 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 of the Shares or any other securities that are
substantially similar to the Shares or any securities convertible into or
exercisable or exchangeable for any of the Shares or such other securities (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 Shares or such other
securities, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of any of the Shares of the Company or such other
securities, in cash or otherwise without the prior written consent of the
Representatives, which shall not be unreasonably withheld or delayed, except
that the foregoing restrictions shall not apply to (A) the issuance by the
Company of shares of Common Stock or options or rights to acquire shares of
Common Stock pursuant to employee benefit plans existing on the date hereof,
including, without limitation, stock option and restricted stock plans existing
on, or upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date hereof, (B) the issuance of the Shares to be sold
hereunder, (C) the issuance or transfer of any of the Shares pursuant to
existing reservations, agreements and stock incentive plans, and (D) shares of
Common Stock issued in connection with acquisitions of unaffiliated entities or
assets or businesses from unaffiliated entities, provided that, such shares are
issued in a transaction in this clause (D) which is not registered under the
Securities Act and the acquiror of such shares enters into an agreement
substantially in the form of Schedule 3.1 hereto and (E) the issuance of shares
of Common Stock pursuant to the Warrants. In addition, the Company shall cause
each of MetLife, Inc., MetLife and Equity Intermediary Company which own,
directly or indirectly, any shares of capital stock of the Company to enter into
an agreement with the Underwriters, the form of which is contained in Schedules
3.1, 3.2 and 3.3 hereto, to the effect of the agreement of the Company contained
in this paragraph and deliver such agreements by the date hereof, and the
Company shall cause the executive officers and directors of the Company, each of
which are listed on Schedule 4 hereof, to enter into an agreement with the
Underwriters, the form of which is contained in Schedule 5 hereto, to the effect
of the agreement of the Company contained in this paragraph and deliver such
agreements by the date hereof.
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: (a) the costs incident to the issuance, sale and
delivery of the Shares and any taxes payable in that connection; (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
12
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, in each case, as provided in this Agreement; (d) the costs of
distributing the terms of any agreement relating to the organization of the
underwriting syndicate and selling group to the members thereof, by mail, telex
or other reasonable means of communication; (e) the fees and expenses of
qualifying the Shares under the securities laws of the several jurisdictions in
the United States as provided in Section 5(g) 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); (f) the
expenses of the Company and the Underwriters in connection with the marketing
and offering of the Shares, 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 Shares; (g) all expenses and fees in
connection with the application for supplemental listing of the Shares on the
NYSE, subject to official notice of issuance; (h) the fees and expenses of the
Company's counsel, transfer agents and independent accountants; and (i) 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 and any transfer
taxes on the Shares which they may sell.
7. Conditions of the Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the accuracy, when made and on each
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 shall have been timely filed with the Commission in
accordance with Section 5(a) of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no 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 applicable Delivery Date, that, in the opinion of King &
Spalding LLP, counsel to the Underwriters, the Registration Statement or any
amendment thereto, contained, as of the Effective 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
Prospectus or any supplement thereto, contains and will contain, as of the date
hereof and the applicable 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 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 Prospectus and the Shares, and all other legal matters relating
to the offering, issuance and sale of the Shares and the transactions
contemplated hereby and thereby shall be reasonably satisfactory in all material
respects to counsel to the Underwriters.
13
(d) Bryan Cave LLP, special counsel to the Company, shall have
furnished to the Underwriters its written opinion, addressed to the Underwriters
and dated such Delivery Date to the Underwriters, 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; the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the Securities Act 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) and any further
amendments or supplements thereto made by the Company prior to the
applicable Delivery Date (other than the financial statements and
related notes and schedules and the other financial, statistical and
accounting data included or incorporated therein or omitted therefrom,
as to which such counsel need express no opinion), when they were filed
with the Commission complied as to form in all material respects with
the requirements of the Securities Act.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The statements in the Prospectus under the caption
"Description of Common Stock" (including any statements under the
applicable caption "Description of Capital Stock of RGA" in the base
prospectus included in the Prospectus), insofar as such statements
constitute summaries of the terms of the Common Stock, are accurate in
all material respects (except for any financial, statistical or
accounting data included or incorporated therein or omitted therefrom,
as to which such counsel need express no opinion) and the Shares
conform in all material respects to the description thereof in the
Prospectus.
(v) The statements in the Prospectus under the caption
"Material United States Federal Tax Consequences to Non-U.S. Holders"
insofar as such statements constitute summaries of United States
federal tax law and regulations or matters of law, are accurate in all
material respects.
(vi) The execution and delivery by the Company of this
Agreement, the issuance of the Shares and the consummation by the
Company of its obligations thereunder do not result in any violation by
the Company of any U.S. federal or Missouri statute, rule or regulation
that such counsel, based on its experience, reasonably recognizes as
being applicable to the Company in a transaction of this type, or, to
such counsel's knowledge, any order of any U.S. federal or Missouri
court or governmental agency or 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.
(vii) The Shares have been duly authorized for issuance by the
Company and, upon the issuance and delivery of the Shares and the
receipt by the Company of all
14
consideration therefor in accordance with the terms of this Agreement,
such Shares will be validly issued, fully paid and nonassessable.
(viii) No consent, approval, authorization or other action by,
and no notice to or filing with, any U.S. federal or Missouri
governmental authority or regulatory body is required for the issuance
and sale of the Shares by the Company, except such consents, approvals,
authorizations or other actions which have been obtained or made or as
may be required under state securities or Blue Sky Laws or the rules of
the National Association of Securities Dealers, Inc. in connection with
the purchase and distribution of the Shares by the Underwriters, as to
which such counsel need express no opinion.
In addition, 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 recite that no opinion is
expressed with respect to, and that such counsel is not passing upon, and does
not assume responsibility for any matters relating to insurance laws, statutes,
rules, regulations or policies. 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 and 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 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 and 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 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, at the time
the Registration Statement became effective, the Registration Statement or the
Prospectus, as of its date (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 (and with respect to the Prospectus, in light of the
circumstances under which they were made), not misleading, or at the Closing
Date, the Registration Statement or Prospectus (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 (and with respect to the Prospectus, in light of the
circumstances under which they were made), not misleading.
(e) James E. Sherman, Esq., Executive Vice President, General Counsel
and Secretary of the Company, shall have furnished to the Underwriters his
written opinion, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Underwriters, substantially to
the effect that:
15
(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 the Prospectus, and is duly
qualified and in good standing as a foreign corporation authorized to
do business in each jurisdiction described in Schedule 6 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 2 hereto are the only
subsidiaries, direct or indirect, of the Company. Except as otherwise
set forth in the Prospectus, the Company owns, directly or indirectly
through other subsidiaries, the percentage indicated on Schedule 2 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 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 this
Agreement and to consummate the transactions contemplated hereby,
including, without limitation, the corporate power and authority to
issue, sell and deliver the Shares as provided herein.
(iv) Except as set forth in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of Common Stock
pursuant to the Company's articles of incorporation or by-laws or any
agreement or other instrument known to such counsel.
(v) The Company had an authorized capitalization as of
September 30, 2003, as set forth in the Prospectus and all issued
shares of capital stock of the Company (other than the Shares), have
been duly and validly authorized and issued by the Company and are
fully paid and non-assessable.
(vi) 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.
16
(vii) The execution and delivery by the Company of this
Agreement, the issuance of the Shares 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
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 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 NASD. 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
this Agreement, the issuance of the Shares 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 of the Shares, if at all, or (iii) may be required under state
or foreign securities or Blue Sky laws and regulations or such as may
be required by the NASD. No consents or waivers from any other person
are required the execution, delivery and performance by the Company of
this Agreement, the issuance of the Shares and the consummation 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 of the Shares, if at all, or (iii) have been obtained.
(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
17
Authorizations necessary to engage in the business currently conducted
by it in the manner described in 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 knowledge of such counsel and except as would not 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 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 could not reasonably be expected to
have a Material Adverse Effect.
(ix) Neither the Company nor any of its subsidiaries is, or
after the application of the net proceeds from the sale of the Shares
will 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 applicable 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 applicable 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 and the Prospectus at which conferences the contents of
the Registration Statement and the Prospectus were discussed, reviewed and
revised. Although such counsel is not passing upon, and does not assume
responsibility for, the accuracy, completeness or fairness of such statements
and has not made any independent investigation thereof (except as indicated
above), on the basis of the information which was developed in the course
thereof, such counsel will advise the Underwriters that such counsel has no
reason to believe that (i) the Registration Statement, on the Effective Date,
contained an untrue statement of material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (ii) the Prospectus as such Prospectus may have been amended
or supplemented, if applicable), at the time such Prospectus was circulated and
on the applicable Delivery Date, contained or contains an 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
18
statements therein, in the light of the circumstances under which they were
made, not misleading. Such counsel need not express any view as to the financial
statements, notes and schedules or any other financial, statistical or
accounting data included or incorporated by reference in or omitted from the
Registration Statement and the Prospectus.
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) Shibley Righton LLP shall have furnished to the Underwriters its
written opinion, as special Canadian counsel to the Company, addressed to the
Underwriters and dated the applicable Delivery Date, in form and substance
reasonably satisfactory to the Underwriters, substantially to the effect that:
(i) The Company's Canadian subsidiary has been duly
incorporated and is existing under the laws of its jurisdiction of
incorporation or continuance, as the case may be, 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 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 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
this Agreement, the issuance of the Shares 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 Canadian subsidiary, or an acceleration of indebtedness
pursuant to, (i) the constating documents of the Company's Canadian
subsidiary, (ii) any material bond, debenture, note, indenture,
mortgage, deed of trust or other agreement or instrument known to such
counsel to which the Company's Canadian subsidiary is a party or by
which it or its property is or may be bound, (iii) any material
statute, rule or regulation known to such counsel to be applicable to
the Company's Canadian subsidiary or any of their assets or properties,
or (iv) any material judgment, order or decree known to such counsel of
any Canadian court or governmental agency or authority having
jurisdiction over the Company's Canadian subsidiary or its assets or
properties. No consent, approval, authorization or order of, or filing,
registration, qualification, license or permit of or with, any Canadian
court or governmental agency, body or administrative agency is required
for the execution, delivery and performance by the Company of the
issuance and sale of the Shares.
(iii) To the best knowledge of such counsel, no action has
been taken and no Canadian statute, rule or regulation or order has
been enacted, adopted or issued by any Canadian governmental agency
that prevents the issuance of the Shares; no injunction, restraining
order or order of any nature by a Canadian court of competent
jurisdiction has been issued that prevents the issuance of the Shares
and to the best knowledge of such
19
counsel, no action, suit or proceeding is pending against or affecting
or threatened against, the Company's Canadian subsidiary before any
court or arbitrator or any governmental body, agency or official which,
if adversely determined, would prohibit, interfere with or adversely
affect the offer or issuance of the Shares or in any manner draw into
question the validity of the Shares.
(iv) To the best knowledge of such counsel, the Company's
Canadian subsidiary has (i) all Authorizations necessary to engage in
the business currently conducted by it in the manner described in 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 Canadian subsidiary is 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 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.
(g) Chancery Chambers 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 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 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
this Agreement, the issuance of the Shares 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
20
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 issuance and sale of the
Shares.
(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 of the Shares; no injunction, restraining
order or order of any nature by a Barbados court of competent
jurisdiction has been issued that prevents the issuance of the Shares
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 or marketability of the Shares or in any manner draw into
question the validity of this Agreement or of the Shares.
(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 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 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) King & Spalding LLP, shall have furnished to the Underwriters its
written opinion, as counsel to the Underwriters, addressed to the Underwriters
and dated the applicable Delivery Date, in form and substance reasonably
satisfactory to the Underwriters.
(i) By the date hereof and on the applicable 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 and the Prospectus.
(j) The Company shall have furnished to the Underwriters a certificate,
dated such Delivery Date, of its President or any Executive or Senior Vice
President and its principal
21
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 applicable 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 applicable Delivery Date; and the
conditions set forth in Section 7(a) 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 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 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 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 the
Prospectus and, except as set forth or contemplated in the Prospectus,
neither the Company nor any of its subsidiaries has entered into any
transaction or agreement (whether 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
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 Prospectus, as of the date hereof and
as of the applicable 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 (C) since the Effective Date, no event has occurred
which should have been set forth in a supplement or amendment to the
Registration Statement or the Prospectus.
(k) On or prior to the applicable 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 Shares 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 Shares as herein contemplated shall be reasonably satisfactory in
form and substance to the Underwriters and their counsel.
(l) The Shares shall have been duly issued and delivered by the
Company.
22
(m) The lock-up letter agreements, each substantially in the form of
Schedules 3.1, 3.2 and 3.3 from each of MetLife, Inc., Metropolitan Life
Insurance Company and Equity Intermediary Company, respectively, and the form of
Schedules 5.1 and 5.2 from the executive officers and directors of the Company
listed in Schedule 4 hereto and David B. Atkinson, respectively, relating to
sales and certain other dispositions of the Shares or certain other securities,
delivered to the Underwriters on or before the date hereof, shall have been in
full force and effect since the date hereof and continue to be in full force and
effect as of such Delivery Date.
(n) 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 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 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 the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the Shares being
delivered on the applicable Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(o) 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, or by
A.M. Best Company, Inc. and (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.
(p) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq National Market or the over-the-counter market, or trading in any
securities of the Company on any exchange shall have been suspended, the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States, or there shall have been a declaration
of a national emergency or war by the United States, or (iv) there shall have
occurred any other calamity or crisis or any change in general domestic or
international economic, political or financial conditions, including, without
limitation, as a result of the effect of international conditions on the
financial markets in the United States shall be such, as to make it in the
reasonable judgment of the Representatives, impracticable or inadvisable to
proceed with the public offering or delivery of the Shares being
23
delivered on such Delivery Date on the terms and in the manner contemplated in
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 (h)
above) shall state that they may be relied upon by King & Spalding LLP as to
matters of law (other than New York and federal law) in rendering the opinion
referred to in (h) above.
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 Shares), 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) Preliminary Prospectus, the Registration
Statement, the Prospectus or in any amendment or supplement thereto or (B) any
blue sky application or other document prepared or 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 Shares
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 any Preliminary Prospectus,
the Registration Statement, 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 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 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 specifically for inclusion therein which information
consists solely of the information set forth in Section 8(e); and provided
further, that the Company shall not be liable to indemnify any Underwriter or
any person who controls such Underwriter on account of any such loss, liability,
claim, damage or expense arising out of any such defect or alleged defect in any
Preliminary Prospectus if a copy of the Prospectus (exclusive of the
Incorporated Documents), as amended or supplemented, shall not have been given
or sent by such Underwriter with or prior to the written confirmation of the
sale involved to the extent that (i) the Prospectus, as amended or supplemented,
would have cured
24
such defect or alleged defect and (ii) sufficient quantities of the Prospectus,
as amended or supplemented, were made available to such Underwriter to allow it
to deliver such Prospectus on a timely basis. 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 any Preliminary Prospectus, the
Registration Statement 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 any Preliminary Prospectus, the Registration Statement 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 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 specifically for inclusion therein and described in Section
8(e), and shall reimburse the Company and any such director, officer, 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) or 8(b) 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 have the right to employ separate counsel to represent
jointly 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
25
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.
(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) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, 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
Shares, 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 Shares 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 Shares purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the offering
of the Shares 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
26
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 Shares underwritten by it and distributed
to the public was 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.
(e) The Underwriters severally confirm and the Company acknowledges
that the statements with respect to the offering of the Shares by the
Underwriters set forth in the last paragraph on the cover page and the fourth,
tenth, eleventh, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth and
nineteenth paragraphs under the caption "Underwriting" in the Prospectus are
correct and constitute the only information concerning such Underwriters
furnished in writing to the Company through the Representatives by or on behalf
of the Underwriters specifically for inclusion in the Prospectus and the
Underwriters severally confirm that such statements are accurate and complete.
9. Defaulting Underwriters. If, on any Delivery Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
remaining nondefaulting Underwriters shall be obligated to purchase the number
of Shares which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of the Shares set
forth opposite the name of each remaining non-defaulting Underwriter in Schedule
1 hereto bears to the aggregate number of Shares 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 Shares on such Delivery Date if the total number of
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 10% of the total aggregate number of the Shares to
be purchased on the applicable Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the aggregate
number of the Shares which it agreed to purchase on the applicable 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 number of Shares to be purchased on such Delivery Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase on such Delivery Date the aggregate number of Shares which the
defaulting Underwriters agreed but failed to purchase, this Agreement (or with
respect to the Option Delivery Date, the obligation of the Underwriters to
purchase the Option Shares) shall terminate without liability on the part of any
non-defaulting Underwriter and the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11. As used in this Agreement, the
27
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 Shares 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 Shares
of a defaulting or withdrawing Underwriter, either the Representatives or the
Company may postpone the applicable 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 Shares if, prior to that time, any of
the events described in Sections 7(n), 7(o) or 7(p) shall have occurred or if
the Underwriters shall decline to purchase the Shares for any reason permitted
under this Agreement.
11. Reimbursement of Underwriters Expenses. If (a) the Company shall
fail to tender the Shares 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(p))or
(b) the Underwriters shall decline to purchase the Shares 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(p)), 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 Shares, and upon demand the Company shall pay 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. 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:
Goldman, Sachs & Co., 85 Broad Street, New York, New York,
10004, Attention: Registration Department (Fax No.: 212-357-5505), with
a copy to the General Counsel's Office, 85 Broad Street, New York, New
York, 10004;
Lehman Brothers Inc., 745 Seventh Avenue, New York, New York,
10019, Attention: Equity Syndicate Department (Fax No.: 201-5245980),
with a copy to the General Counsel's Office, 745 Seventh Avenue, New
York, New York, 10019; and
28
with a copy to King & Spalding LLP, 1185 Avenue of the
Americas, New York New York 10036, Attention: Alex Gendzier, Esq. (Fax
No.: 212-556-2222); and
(b) if to the Company, to 1370 Timberlake Manor Parkway,
Chesterfield, Missouri 63017, Attention: Jack B. Lay, Executive Vice
President and Chief Financial Officer (Fax No.: 636-736-7839), with a
copy to James E. Sherman, Esq., Executive Vice President, General
Counsel and Secretary, at the same address (Fax No.: 636-736-7886); and
with a copy to Bryan Cave LLP, One Metropolitan Square, 211
North Broadway, Suite 3600, St. Louis, Missouri 63102, Attention: R.
Randall Wang, Esq. (Fax No.: 314259-2020);
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 on behalf of the
Underwriters.
13. 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 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
14. 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 Shares 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.
15. Definition of the term "Business Day." For purposes of this
Agreement, "business day" means any day on which the NYSE is open for trading.
16. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
29
17. 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.
18. 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.]
30
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/ Jack B. Lay
---------------------------------------
Name: Jack B. Lay
Title: Executive Vice President and
Chief Financial Officer
Accepted and agreed by:
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
For Themselves and as Representatives
of the Several Underwriters
By Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
----------------------------------------------
Goldman, Sachs & Co.
By Lehman Brothers Inc.
By: /s/ Joseph C. Castle
----------------------------------------------
Authorized Representative
SCHEDULE 1
NUMBER OF FIRM
SHARES TO BE
UNDERWRITER PURCHASED
- ----------- ---------
Goldman, Sachs & Co. ...................................................................... 3,412,500
Lehman Brothers Inc. ...................................................................... 3,412,500
Bear, Stearns & Co. Inc. .................................................................. 1,050,000
Keefe, Bruyette & Woods, Inc. ............................................................. 787,500
A.G. Edwards & Sons, Inc. ................................................................. 459,375
Banc of America Securities LLC............................................................. 459,375
Deutsche Bank Securities Inc. ............................................................. 459,375
BNY Capital Markets, Inc. ................................................................. 459,375
----------
Total .............................................................................. 10,500,000
==========
SCHEDULE 2
LIST OF SUBSIDIARIES AND AFFILIATES OF
REINSURANCE GROUP OF AMERICA, INCORPORATED
AS OF NOVEMBER 6, 2003
Reinsurance Group of America, Incorporated: subsidiary, of which approximately
48.3% is owned by Equity Intermediary, 9.6% is owned by MetLife, and the balance
by the public.
General American Argentina Seguros de Vida S.A.: Argentinean subsidiary
100% owned by RGA, engaged in business as a life, annuity, disability
and survivorship insurer.
RGA Argentina S.A.: Argentinian subsidiary 100% owned by RGA.
Reinsurance Company of Missouri, Incorporated: 100% wholly owned
subsidiary formed for the purpose of owning RGA Reinsurance Company.
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,
formed to issue PIERS securities in December 2001.
RGA International Reinsurance Company Limited (Ireland): 100% owned by
Reinsurance Group of America, Incorporated. Reinsurance company to be
used eventually for most International Division business not written in
United Kingdom, Australian and South African subsidiaries.
RGA Reinsurance Company: 100% wholly owned subsidiary
engaged in the reinsurance business.
Fairfield Management Group, Inc.: 100% owned
subsidiary.
Reinsurance Partners. Inc.: 100%
wholly-owned subsidiary of Fairfield
Management Group, Inc., engaged in business
as a reinsurance brokerage company.
Great Rivers Reinsurance Management, Inc.:
100% wholly-owned subsidiary of Fairfield
Management Group, Inc., acting as a
reinsurance manager.
RGA (U.K.) Underwriting Agency Limited: 100%
wholly-owned by Fairfield Management Group,
Inc.
RGA Reinsurance Company (Barbados) Ltd.: 100% subsidiary of Reinsurance
Group of America, Incorporated formed to engage in the exempt insurance
business.
RGA Financial Group. L.L.C.: 80% owned by RGA Reinsurance
Company (Barbados) Ltd. and 20% owned by RGA Reinsurance
Company. Formed to market and manage financial reinsurance
business to be assumed by RGA Reinsurance Company.
Triad Re. Ltd.: Reinsurance Group of America, Incorporated owns 100% of
all outstanding and issued shares of the Company's preferred stock.
Reinsurance Group of America, Inc. owns 66.67% of all outstanding and
issued shares of the Company's common stock. Schmitt-Sussman
Enterprises, Inc. owns 33.33% of all outstanding and issued shares of
the Company's common stock.
RGA Americas Reinsurance Company. Ltd: Reinsurance Group of America,
Incorporated owns 100% of this company.
RGA International Ltd.: a Canadian corporation 100% wholly-owned by
Reinsurance Group of America, existing to hold Canadian reinsurance
operations.
RGA Life Reinsurance Company of Canada Limited: a Canadian
corporation 100% wholly-owned by RGA Canada Management Inc.
RGA Holdings Limited: 100% owned by Reinsurance Group of America,
Incorporated, 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: 100%, company is a corporate member of a
Lloyd's life syndicate.
RGA Reinsurance (UK) Limited: 100%, company to act as
reinsurer.
RGA UK Services Limited: 100%, (Formerly RGA Managing Agency
Limited): inactive company.
RGA Australian Holdings Pty Limited: 100% owned by Reinsurance Group of
America, Incorporated, holding company formed to own RGA Reinsurance
Company of Australia Limited.
RGA Asia Pacific Pty Limited: 100% formed to operate division matters.
RGA Reinsurance Company of Australia Limited: 100%, formed to
reinsure the life, health and accident business of
non-affiliated Australian insurance companies.
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.
Regal Atlantic Company (Bermuda) Ltd.: 100% owned by Reinsurance Group
of America, Incorporated.
Malaysian Life Reinsurance Group Berhad: 30% owned by Reinsurance Group
of America, Incorporated.
RGA Sigma Reinsurance SPC (Cayman Islands): 100% owned by Reinsurance
Group of America, Incorporated
SCHEDULE 3.1
FORM OF LOCK-UP AGREEMENT
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York, 10004
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, New York, 10019
As Representatives of the several
Underwriters named in Schedule 1
Dear Ladies and Gentlemen:
The undersigned understands that you propose to enter into a
Underwriting Agreement (the "UNDERWRITING AGREEMENT") providing for the purchase
by you and such other firms as underwriters (the "UNDERWRITERS") of 10,500,000
shares of Common Stock, par value $0.01 per share (the "SHARES") (or up to
12,075,000 Shares to the extent the underwriters exercise their option to
purchase additional Shares) of Reinsurance Group of America, Incorporated, a
Missouri corporation (the "COMPANY"), and that the Underwriters propose to
reoffer the Shares to the public (the "OFFERING").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, for a period of 90 days after the date of the
Prospectus not to, and not to permit any subsidiary (other than the Company
pursuant to the Underwriting Agreement) 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 Common Stock or any other securities that are substantially similar to the
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or such other securities or (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 Common Stock or such other securities, whether any
such transaction described in clause (i) or (ii) above is to be settled by
delivery of any of the Common Stock or such other securities, in cash or
otherwise without the prior written consent of the Representatives, which
consent shall not be unreasonably withheld or delayed, provided that the
foregoing shall not apply to any transaction on behalf of any separate or
managed account or any transaction by any subsidiary of the undersigned acting
as broker-dealer, investment advisor, trustee or other fiduciary in the ordinary
course of its business.
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of Common Stock if such
transfer would constitute a violation or breach of this Agreement.
It is understood that, if the Company notifies you that it
does not intend to proceed with the Offering, if the Underwriting Agreement does
not become effective by November 30, 2003, or if the Underwriting Agreement
(other than the provisions thereof which survive termination) shall terminate or
be terminated prior to payment for and delivery of the Common Stock, the
undersigned will be released from the obligations under this Agreement and this
Agreement shall be void and without effect.
The undersigned understands that the Company and the
Underwriters will proceed with the Offering in reliance on this Agreement.
Whether or not the Offering actually occurs depends on a number of factors,
including market conditions. Any Offering will only be made pursuant to a
Underwriting Agreement, the terms of which are subject to negotiation between
the Company and the Underwriters.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into this Agreement and that,
upon request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
METLIFE, INC.
By:
---------------------------------------
Name:
Title:
Dated: November __, 2003
SCHEDULE 3.2
FORM OF LOCK-UP AGREEMENT
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York, 10004
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, New York, 10019
As Representatives of the several
Underwriters named in Schedule 1
Dear Ladies and Gentlemen:
The undersigned understands that you propose to enter into a
Underwriting Agreement (the "UNDERWRITING AGREEMENT") providing for the purchase
by you and such other firms as underwriters (the "UNDERWRITERS") of 10,500,000
shares of Common Stock, par value $0.01 per share (the "SHARES") (or up to
12,075,000 Shares to the extent the underwriters exercise their option to
purchase additional Shares) of Reinsurance Group of America, Incorporated, a
Missouri corporation (the "COMPANY"), and that the Underwriters propose to
reoffer the Shares to the public (the "OFFERING").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, for a period of 90 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 Common Stock or any other
securities that are substantially similar to the Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or such other
securities or (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
Common Stock or such other securities, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of any of the Common Stock
or such other securities, in cash or otherwise without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld or
delayed, provided that the foregoing shall not apply to any transaction by the
undersigned or any subsidiary of the undersigned on behalf of any separate or
managed account or any transaction by the undersigned or any subsidiary of the
undersigned acting as broker-dealer, investment advisor, trustee or other
fiduciary in the ordinary course of its business.
In furtherance of the foregoing, the Company and its Transfer Agent
hereby authorized to decline to make any transfer of Common Stock if such
transfer would constitute a violation or breach of this Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective by November 30, 2003, or if the Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be
terminated prior to payment for and delivery of the Common Stock, the
undersigned will be released from the obligations under this Agreement and this
Agreement shall be void and without effect.
The undersigned understands that the Company and the Underwriters will
proceed with the Offering in reliance on this Agreement. Whether or not the
Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to a Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the
Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that, upon request,
the undersigned will execute any additional documents necessary in connection
with the enforcement hereof. Any obligations of the undersigned shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
Very truly yours,
METROPOLITAN LIFE INSURANCE COMPANY
By:
---------------------------------------
Name:
Title:
Dated: November __, 2003
SCHEDULE 3.3
FORM OF LOCK-UP AGREEMENT
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York, 10004
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, New York, 10019
As Representatives of the several
Underwriters named in Schedule 1
Dear Ladies and Gentlemen:
The undersigned understands that you propose to enter into a
Underwriting Agreement (the "UNDERWRITING AGREEMENT") providing for the purchase
by you and such other firms as underwriters (the "UNDERWRITERS") of 10,500,000
shares of Common Stock, par value $0.01 per share (the "SHARES") (or up to
12,075,000 Shares to the extent the underwriters exercise their option to
purchase additional Shares) of Reinsurance Group of America, Incorporated, a
Missouri corporation (the "COMPANY"), and that the Underwriters propose to
reoffer the Shares to the public (the "OFFERING").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, for a period of 90 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 Common Stock or any other
securities that are substantially similar to the Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or such other
securities or (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
Common Stock or such other securities, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of any of the Common Stock
or such other securities, in cash or otherwise without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld or
delayed.
In furtherance of the foregoing, the Company and its Transfer Agent
hereby authorized to decline to make any transfer of Common Stock if such
transfer would constitute a violation or breach of this Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective by November 30, 2003, or if the Underwriting Agreement (other
than the provisions thereof which
survive termination) shall terminate or be terminated prior to payment for and
delivery of the Common Stock, the undersigned will be released from the
obligations under this Agreement and this Agreement shall be void and without
effect.
The undersigned understands that the Company and the Underwriters will
proceed with the Offering in reliance on this Agreement. Whether or not the
Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to a Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the
Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that, upon request,
the undersigned will execute any additional documents necessary in connection
with the enforcement hereof. Any obligations of the undersigned shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
Very truly yours,
EQUITY INTERMEDIARY COMPANY
By:
------------------------------------
Name:
Title:
Dated: November __, 2003
SCHEDULE 4
LIST OF PARTIES TO PROVIDE LOCK-UP LETTER AGREEMENTS
Directors:
J. Cliff Eason
Stuart I. Greenbaum
William A. Peck
A. Greig Woodring
Stewart G. Nagler
Joseph A. Reali
Alan C. Henderson
Lisa M. Weber
[Leland C. Launer does not beneficially own any shares]
Officers: (all of the officers that are Section 16 reporting persons)
--------
David B. Atkinson
Todd C. Larson
Jack B. Lay
Paul A. Schuster
James Sherman
Graham S. Watson
SCHEDULE 5.1
FORM OF LOCK-UP AGREEMENT
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York, 10004
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, New York, 10019
As Representatives of the several
Underwriters named in Schedule 1
Dear Ladies and Gentlemen:
The undersigned understands that you propose to enter into a
Underwriting Agreement (the "UNDERWRITING AGREEMENT") providing for the purchase
by you and such other firms as underwriters (the "UNDERWRITERS") of 10,500,000
shares of Common Stock, par value $0.01 per share (the "SHARES") (or up to
12,075,000 Shares to the extent the underwriters exercise their option to
purchase additional Shares) of Reinsurance Group of America, Incorporated, a
Missouri corporation (the "COMPANY"), and that the Underwriters propose to
reoffer the Shares to certain eligible purchasers (the "OFFERING").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, for a period of 90 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 Common Stock or any other
securities that are substantially similar to the Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or such other
securities or (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
Common Stock or such other securities, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of any of the Common Stock
or such other securities, in cash or otherwise without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld or
delayed.
Notwithstanding the foregoing, the undersigned may transfer any Common
Stock or securities convertible into or exchangeable or exercisable for Common
Stock either (i) during the undersigned's lifetime to his or her immediate
family or to a trust if the beneficiaries of such trust are exclusively the
undersigned and/or a member or members of his or her immediate family or (ii)
upon death by will or intestacy; provided, however, that prior to any such
transfer each transferee shall execute an agreement substantially identical to
this agreement and which shall be satisfactory to the Representatives, pursuant
to which each transferee shall agree to
receive and hold such Common Stock, or securities convertible into or
exchangeable or exercisable for Common Stock, subject to the provisions hereof,
and there shall be no further transfer except in accordance with the provisions
hereof. For purposes of this paragraph, "immediate family" shall mean spouse,
lineal descendant, father, mother, brother, sister or domestic partner of the
transferor, whether by law or otherwise, or any grandparent, mother-in-law,
father-in-law, daughter-in-law, brother-in-law, stepchild, grandchild or
step-grandchild, uncle, aunt, niece or nephew of the transferor, and which shall
include adoptive relationships.
In addition, notwithstanding the foregoing, the undersigned may pledge
any such Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock in connection with a bona fide loan transaction in
which the pledgee acknowledges in writing the undersigned's obligations
hereunder and which pledge does not permit the pledgee, directly or indirectly,
to make any offer, sale, transfer or other disposition of such Common Stock or
securities convertible into or exchangeable or exercisable for Common Stock
during such 90-day period.
Further, notwithstanding the foregoing, if the undersigned has, prior
the date hereof, (x) pledged, encumbered, contracted to sell or otherwise agreed
to dispose of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or (y) entered into a trading plan for purposes of
complying with Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934,
nothing in this Agreement shall be deemed to prohibit the undersigned from
disposing of such Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock pursuant to the terms of any such pre-existing
legal obligation or trading plan.
Further, the undersigned may exercise any options or warrants to
purchase Common Stock of the Company, provided that the Common Stock issued upon
exercise shall remain subject to this Agreement.
In furtherance of the foregoing, the Company and the Transfer Agent are
hereby authorized to decline to make any transfer of Common Stock if such
transfer would constitute a violation or breach of this Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective by November 30, 2003, or if the Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be
terminated prior to payment for and delivery of the Common Stock, the
undersigned will be released from the obligations under this Agreement and this
Agreement shall be void and without effect.
The undersigned understands that the Company and the Underwriters will
proceed with the Offering in reliance on this Agreement. Whether or not the
Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to a Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the
Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that, upon request,
the undersigned will execute any additional documents necessary in connection
with the enforcement hereof. Any obligations of the undersigned shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
Very truly yours,
[NAME]
_________________________________________
Name:
Title:
Dated: November __, 2003
SCHEDULE 5.2
FORM OF LOCK-UP AGREEMENT
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York, 10004
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, New York, 10019
As Representatives of the several
Underwriters named in Schedule 1
Dear Ladies and Gentlemen:
The undersigned understands that you propose to enter into a
Underwriting Agreement (the "UNDERWRITING AGREEMENT") providing for the purchase
by you and such other firms as underwriters (the "UNDERWRITERS") of 10,500,000
shares of Common Stock, par value $0.01 per share (the "SHARES") (or up to
12,075,000 Shares to the extent the underwriters exercise their option to
purchase additional Shares) of Reinsurance Group of America, Incorporated, a
Missouri corporation (the "COMPANY"), and that the Underwriters propose to
reoffer the Shares to certain eligible purchasers (the "OFFERING").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, for a period of 90 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 Common Stock or any other
securities that are substantially similar to the Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or such other
securities or (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
Common Stock or such other securities, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of any of the Common Stock
or such other securities, in cash or otherwise without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld or
delayed.
Notwithstanding the foregoing, the undersigned may transfer any Common
Stock or securities convertible into or exchangeable or exercisable for Common
Stock either (i) during the undersigned's lifetime to his or her immediate
family or to a trust if the beneficiaries of such trust are exclusively the
undersigned and/or a member or members of his or her immediate family or (ii)
upon death by will or intestacy; provided, however, that prior to any such
transfer each transferee shall execute an agreement substantially identical to
this agreement and which shall be satisfactory to the Representatives, pursuant
to which each transferee shall agree to
receive and hold such Common Stock, or securities convertible into or
exchangeable or exercisable for Common Stock, subject to the provisions hereof,
and there shall be no further transfer except in accordance with the provisions
hereof. For purposes of this paragraph, "immediate family" shall mean spouse,
lineal descendant, father, mother, brother, sister or domestic partner of the
transferor, whether by law or otherwise, or any grandparent, mother-in-law,
father-in-law, daughter-in-law, brother-in-law, stepchild, grandchild or
step-grandchild, uncle, aunt, niece or nephew of the transferor, and which shall
include adoptive relationships.
In addition, notwithstanding the foregoing, the undersigned may pledge
any such Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock in connection with a bona fide loan transaction in
which the pledgee acknowledges in writing the undersigned's obligations
hereunder and which pledge does not permit the pledgee, directly or indirectly,
to make any offer, sale, transfer or other disposition of such Common Stock or
securities convertible into or exchangeable or exercisable for Common Stock
during such 90-day period.
Further, notwithstanding the foregoing, if the undersigned has, prior
the date hereof, (x) pledged, encumbered, contracted to sell or otherwise agreed
to dispose of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or (y) entered into a trading plan for purposes of
complying with Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934,
nothing in this Agreement shall be deemed to prohibit the undersigned from
disposing of such Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock pursuant to the terms of any such pre-existing
legal obligation or trading plan.
Further, the undersigned may exercise any options or warrants to
purchase Common Stock of the Company, provided that the Common Stock issued upon
exercise shall remain subject to this Agreement; notwithstanding the foregoing,
the undersigned may exercise up to 53,000 options to purchase Common Stock of
the Company which are expiring in December 2003 and sell the Common Stock issued
upon exercise without restriction.
In furtherance of the foregoing, the Company and the Transfer Agent are
hereby authorized to decline to make any transfer of Common Stock if such
transfer would constitute a violation or breach of this Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective by November 30, 2003, or if the Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be
terminated prior to payment for and delivery of the Common Stock, the
undersigned will be released from the obligations under this Agreement and this
Agreement shall be void and without effect.
The undersigned understands that the Company and the Underwriters will
proceed with the Offering in reliance on this Agreement. Whether or not the
Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to a Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the
Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that, upon request,
the undersigned will execute any additional documents necessary in connection
with the enforcement hereof. Any obligations of the undersigned shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
Very truly yours,
DAVID B. ATKINSON
______________________________________________
Name: David B. Atkinson
Title: Executive Vice President and
Chief Operating Officer
Dated: November __, 2003
SCHEDULE 6
JURISDICTIONS OF FOREIGN QUALIFICATION
RGA Reinsurance Company
Alabama
California
Colorado
Florida
Virginia
RGA Life Reinsurance Company of Canada
British Columbia
Alberta
Saskatchewan
Manitoba
Ontario
Quebec
[Note: the other entities (Reinsurance Group of America, Incorporated,
Reinsurance Company of Missouri, Incorporated, and RGA Reinsurance Company
(Barbados) Ltd.) are not qualified in any foreign jurisdictions.]
EXHIBIT 5.1
[RGA letterhead]
November 6, 2003
Board of Directors
Reinsurance Group of America, Incorporated
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017
Ladies and Gentlemen:
I am Executive Vice President, General Counsel and Secretary for
Reinsurance Group of America, Incorporated, a Missouri corporation (the
"Company"). I am furnishing this letter in connection with the Company's filing
of a Registration Statement on Form S-3 (File Nos. 333-108200, 333-108200-01 and
333-108200-02) (together, the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), for the registration of an aggregate
of $800,000,000 of debt securities, preferred stock, depositary shares, common
stock, purchase contracts, warrants and units of the Company, as well as the
prospectus supplement dated November 6, 2003 and accompanying prospectus dated
October 16, 2003 filed pursuant to Rule 424(b) under the Securities Act (the
"Prospectus") covering an aggregate of 10,500,000 shares of common stock, par
value $0.01 per share (the "Common Shares"), including up to 1,575,000 shares
which may be sold at the underwriters' option.
In connection therewith, I have examined:
(1) the Registration Statement;
(2) the Prospectus;
(3) the Underwriting Agreement, dated November 6, 2003, by and among RGA,
Goldman, Sachs & Co. and Lehman Brothers Inc. and each of the other
underwriters named in Schedule 1 thereto (the "Agreement");
(4) the Second Restated Articles of Incorporation of the Company, as
amended; and
(5) the Bylaws of the Company.
I have also examined originals or copies, certified or otherwise
identified to my satisfaction, of such corporate records, agreements and
instruments of the Company, certificates of public officials and officers of the
Company, and such other documents, records and instruments, and I have made such
legal and factual inquiries as I have deemed necessary or appropriate as a basis
for me to render the opinions hereinafter expressed. In my examination of the
foregoing, I have assumed the genuineness of all signatures, the legal
competence and capacity of natural persons, the authenticity of documents
submitted to me as originals and the conformity with authentic original
documents of all documents submitted to me as copies. When relevant facts were
not independently established, I have relied without independent investigation
as to matters of fact upon statements of governmental officials and certificates
and statements of appropriate representatives of the Company.
In connection herewith, I have assumed that, other than with respect to
the Company, all of the documents referred to in this opinion have been duly
authorized by, have been duly executed and delivered by, and constitute the
valid, binding and enforceable obligations of, all of the parties to such
documents, all of the signatories to such documents have been duly authorized
and all such parties are duly organized and validly existing and have the power
and authority (corporate or other) to execute, deliver and perform such
documents.
Reinsurance Group of America, Incorporated
November 6, 2003
Page 2
Based upon the foregoing and in reliance thereon, and subject to the
assumptions, comments, qualifications, limitations and exceptions set forth
herein, I am of the opinion that:
1. Based solely on a recently dated good standing certificate from the
Secretary of State of the State of Missouri, the Company is validly existing as
a corporation, in good standing under the laws of the State of Missouri.
2. The Common Shares have been duly authorized for issuance and upon
the issuance and delivery of the Common Shares and the receipt by the Company of
all consideration therefor in accordance with the terms of the Agreement, the
Common Shares will be validly issued, fully paid and nonassessable.
The opinions herein reflect only the application of applicable Missouri
law. The opinions expressed herein are based upon the law in effect (and
published or otherwise generally available) on the date hereof, and I assume no
obligation to revise or supplement these opinions should such law be changed by
legislative action, judicial decision or otherwise. In rendering the opinions, I
have not considered, and hereby disclaim any opinion as to, the application or
impact of any laws, cases, decisions, rules or regulations of any other
jurisdiction, court or administrative agency.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Current Report on Form 8-K and to the use of my name under the caption "Legal
Matters" in the Prospectus included in the Registration Statement on Form S-3
(File Nos. 333-108200, 333-108200-01 and 333-108200-02) filed by the Company
with the Securities and Exchange Commission on August 25, 2003, as amended by
Pre-Effective Amendment No. 1, filed on October 10, 2003, and by Pre-Effective
Amendment No. 3, filed on October 16, 2003.
Very truly yours,
/s/ James E. Sherman
James E. Sherman, Esq.
Executive Vice President, General Counsel and Secretary
Reinsurance Group of America, Incorporated
EXHIBIT 99.1
For further information, contact
Jack B. Lay
Executive Vice President and
Chief Financial Officer
(636) 736-7439
FOR IMMEDIATE RELEASE
REINSURANCE GROUP OF AMERICA, INCORPORATED ANNOUNCES
THE PRICING OF ITS COMMON STOCK OFFERING
ST. LOUIS, November 6, 2003 -- Reinsurance Group of America, Incorporated
(NYSE:RGA) today announced the pricing of its previously announced offering of
10,500,000 newly issued shares of its common stock at $36.65 per share. RGA's
majority shareholder, MetLife, Inc., has indicated that it and its affiliates
are interested in purchasing 3,000,000 shares of common stock in this offering
at the public offering price, for a total purchase price of approximately $110.0
million. The company has granted the underwriters a 30-day option to purchase up
to an additional 1,575,000 shares at the public offering price. All of the
shares are being offered by RGA. The company expects to use the net proceeds
from the offering for general corporate purposes, including funding its
reinsurance operations. The offering is scheduled to be completed on November
13, 2003.
The joint book-running managers for this offering are Goldman, Sachs & Co. and
Lehman Brothers. A copy of the prospectus supplement and prospectus relating to
this offering may be obtained from (i) Goldman, Sachs & Co., Prospectus
Department at 85 Broad St., New York, N.Y. 10004, or by phone at (212) 902-1171
or (ii) Lehman Brothers Inc., Prospectus Department, c/o ADP Financial Services,
Integrated Distribution Services, 1155 Long Island Avenue, Edgewood, N.Y. 11717,
or by phone or fax at 631-254-7106 or 631-254-7268, respectively.
A shelf registration statement relating to these securities has been filed with
the Securities and Exchange Commission and became effective on October 16, 2003.
The offering will only be made pursuant to a prospectus supplement and
accompanying prospectus. This press release shall not constitute an offer to
sell or the solicitation of an offer to buy any securities of RGA, nor shall
there be any sale of these securities in any state in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state.
- more -
Add One
ABOUT RGA
Reinsurance Group of America, Incorporated, through its subsidiaries, RGA
Reinsurance Company and RGA Life Reinsurance Company of Canada, is among the
largest providers of life reinsurance in North America. In addition to its North
American operations, Reinsurance Group of America, Incorporated has subsidiary
companies or offices in Australia, Barbados, Hong Kong, India, Ireland, Japan,
Mexico, South Africa, South Korea, Spain, Taiwan, and the United Kingdom.
Worldwide, the company has approximately $893 billion of life reinsurance in
force, and assets of $10.5 billion as of September 30, 2003. MetLife, Inc. is
the beneficial owner of approximately 59 percent of RGA's outstanding shares
prior to the offering.
# # #
