EX. 1.1
4,500,000 UNITS
REINSURANCE GROUP OF AMERICA, INCORPORATED
RGA CAPITAL TRUST I
TRUST PREFERRED INCOME EQUITY REDEEMABLE SECURITIES(SM) ("PIERS"(SM)) UNITS(1)
UNDERWRITING AGREEMENT
December 12, 2001
LEHMAN BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
c/o Lehman Brothers Inc.
101 Hudson Street
Jersey City, New Jersey 07302
Ladies and Gentlemen:
Reinsurance Group of America, Incorporated, a Missouri corporation
(the "COMPANY"), and RGA Capital Trust I, a Delaware statutory business trust
(the "TRUST"), propose, subject to the terms and conditions stated herein, to
issue and to sell to Lehman Brothers Inc., Banc of America Securities LLC and
the other underwriters named in Schedule 1 hereto (collectively, the
"UNDERWRITERS") 4,500,000 Trust Preferred Income Equity Redeemable Securities
("PIERS") units (the "FIRM UNITS") pursuant to a Unit Agreement to be entered
into (the "UNIT AGREEMENT") among the Company, the Trust, The Bank of New York,
as unit agent (in such capacity, the "UNIT AGENT"), The Bank of New York, as
warrant agent (in such capacity, the "WARRANT AGENT"), and The Bank of New York,
as property trustee (in such capacity, the "PROPERTY TRUSTEE"). In addition, the
Company and the Trust propose to grant to the Underwriters an option (the
"OPTION") to purchase up to an additional 675,000 Units (the "OPTION UNITS" and,
together with the Firm Units, the "UNITS").
Each Unit will consist of a preferred security, liquidation preference
$50 per security, of the Trust (each, a "PREFERRED SECURITY") and a warrant
(each, a "WARRANT") of the Company to purchase at any time prior to the close of
business on December 15, 2050 shares (the "WARRANT SHARES") of common stock, par
value $0.01 per share, of the Company ("COMMON STOCK"), subject to antidilution
adjustments. Each Preferred Security will represent an undivided beneficial
ownership interest in the assets of the Trust, which assets will consist solely
of the 5.75% Junior Subordinated Deferrable Interest Debentures due 2050 of the
Company (the "DEBENTURES"). Certain payments on the Preferred Securities will be
guaranteed (the "GUARANTEE") by the Company pursuant to the Guarantee Agreement
(the "GUARANTEE
- --------
1 "Preferred Income Equity Redeemable Securities(SM)" and "PIERS(SM)" are
service marks owned by Lehman Brothers Inc.
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AGREEMENT") to be entered into between the Company and The Bank of New York, as
guarantee trustee (in such capacity, the "GUARANTEE TRUSTEE").
The Trust was formed on February 9, 2001 pursuant to a of trust
agreement dated as of February 8, 2001 (the "ORIGINAL TRUST AGREEMENT") executed
by the Company, as depositer, and The Bank of New York (Delaware), as Delaware
trustee (in such capacity, the "DELAWARE TRUSTEE"), and a certificate of trust
dated as of February 8, 2001 (the "TRUST CERTIFICATE") filed with the Secretary
of State of the State of Delaware. The Trust will be governed by, and the
Preferred Securities will be issued under, the Amended and Restated Trust
Agreement as amended by a first amendment thereto (together the "AMENDED AND
RESTATED TRUST AGREEMENT"), in each case, among the Company, the Property
Trustee, the Delaware Trustee and Greig Woodring, Jack B. Lay and Todd Larson,
as the initial administrative trustees (in such capacities, the "ADMINISTRATIVE
TRUSTEES") which will amend and restate the Original Trust Agreement.
The Trust will use the proceeds from the sale of the Preferred
Securities to purchase the Debentures to be issued pursuant to the Indenture
(the "ORIGINAL INDENTURE"), as supplemented by a Supplemental Indenture (the
"SUPPLEMENTAL INDENTURE" and, together with the Original Indenture, as so
supplemented, the "INDENTURE"), in each case, to be entered into between the
Company and The Bank of New York, as indenture trustee (in such capacity, the
"INDENTURE TRUSTEE"). The Trust will, if and to the extent it receives the
proceeds of a payment on the Debentures, distribute to the holders of the
Preferred Securities all payments so received.
The Company will issue the Warrants pursuant to a Warrant Agreement
(the "WARRANT AGREEMENT") to be entered into between the Company and the Warrant
Agent. Under certain circumstances, the Preferred Securities may be remarketed
pursuant to a Remarketing Agreement (the "REMARKETING AGREEMENT") to be entered
into among the Company, the Trust and Lehman Brothers Inc., as remarketing agent
(in such capacity, the "REMARKETING AGENT").
This Agreement, the Unit Agreement, the Amended and Restated Trust
Agreement, the Warrant Agreement, the Guarantee Agreement, the Indenture and the
Remarketing Agreement are referred to herein collectively as the "TRANSACTION
AGREEMENTS". The Units, the Preferred Securities, the Warrants, the Guarantee,
the Debentures and the Warrant Shares are referred to herein collectively as the
"SECURITIES" and the Securities, other than the Warrant Shares, are referred to
herein collectively as the "UNIT SECURITIES."
This is to confirm the agreement among the Company, the Trust and the
Underwriters concerning the offer, issuance and sale of the Units.
1. Representations, Warranties and Agreements of the Company and the
Trust. Each of the Company and the Trust (with respect to the Trust and the
Preferred Securities), jointly and severally, represent, warrant and agree with,
the Underwriters that:
(a) Registration statements on Form S-3 (File No.'s 333-74104,
333-74104-01 and 333-74104-02), which also constitute Post-Effective Amendment
No. 2 to Registration Statement No.'s 333-55304, 333-55304-01 and 333-55304-02)
setting forth information with
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respect to the Company, the Trust and the Securities 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 such
Registration Statements 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 Statements (collectively, the
"REGISTRATION STATEMENT") on Form S-3 (File No.'s 333-74104, 333-74104-01,
333-74104-02, and 333-55304, 333-55304-01 and 333-55304-02), 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 Lehman Brothers Inc. pursuant to Rule 424(a) of the
Securities Act relating to the Units; the term "REGISTRATION STATEMENT" includes
such Registration Statements, as amended as of the Effective Time, including the
Incorporated Documents and all information contained in the final prospectus
relating to the Units 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 Units in the form
first used to confirm sales of Units. 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
(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
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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).
(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
5
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.
and RGA Life Reinsurance Company of Canada Limited (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 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
6
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 and the
Trust of the Transaction Agreements, as the case may be, the issuance and sale
of the Unit Securities by Company and the Trust, as applicable, the issuance of
the Warrant Shares by the Company upon due exercise of the Warrants and the
consummation by the Company and the Trust, as applicable, 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 of the Company or any of its
subsidiaries, (ii) any bond, debenture, note, indenture, mortgage, deed of trust
or other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which any of them or their property is or may be bound, (iii)
any statute, rule or regulation applicable to the Company, any of its
subsidiaries or any of their assets or properties or (iv) any judgment, order or
decree of any court or governmental agency or authority having jurisdiction over
the Company, any of its subsidiaries or their assets or properties, other than
in the case of clauses (ii) through (iv), any violation, breach, default,
consent, imposition or acceleration that would not reasonably be expected to
have a Material Adverse Effect and except for such consents or waivers as may
have been obtained by the Company or such consents or filings as may be required
under the state or foreign securities or Blue Sky laws and regulations or as may
be required by the 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 and the Trust of the
Transaction Agreements, as applicable, the issuance and sale of the Unit
Securities by the Company, the issuance of the Warrant Shares by the Company
upon due exercise of the Warrants, and the consummation by the Company and the
Trust, as applicable, 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
Securities 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 and the Trust of the
Transaction Agreements, as applicable, the issuance and sale of the Unit
Securities by the Company and the Trust, as applicable, the issuance of the
Warrant Shares by the Company upon due exercise of the Warrants and the
consummation by the Company of the transactions contemplated hereby and thereby,
as applicable, other than such consents and waivers as (i) would not reasonably
be expected to have a Material Adverse Effect, (ii) would not prohibit or
adversely affect the issuance of any of the Securities and (iii) have been
obtained.
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(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 Securities or (z) in any manner draw into question the
validity of any of the Transaction Agreements or any of the Securities.
(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 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
8
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 Units and the planned sale
of the $200 million aggregate principal amount Senior Notes of the Company (the
"SENIOR NOTES") 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, 2001, an authorized and outstanding capitalization as set forth in
the Prospectus and, except with respect to 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 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 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
9
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
(t) 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.
(u) 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 and the Trust of the
Transaction Agreements, as applicable, the issuance and sale of the Unit
Securities by the Company and the Trust, as applicable, the exercise of the
Warrants, the issuance of the Warrant Shares by the Company upon due exercise of
the Warrants and the consummation by the Company and the Trust, as applicable,
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.
(v) Deloitte & Touche LLP ("DELOITTE & TOUCHE") and KPMG Peat Marwick
LLP ("KPMG") who have 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 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.
(w) The 2000 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,
10
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.
(x) The Company and the Insurance Subsidiaries have made no material
changes in their insurance reserving practices since December 31, 2000, except
where such change in such insurance reserving practices would not reasonably be
expected to have a Material Adverse Effect.
(y) The Company is not aware of any threatened or pending downgrading
of RGA Reinsurance Company's "A+" or any other Significant Subsidiaries'
claims-paying ability rating from A.M. Best Company, Inc. or financial strength
rating of "AA" and "A1" from Standard & Poor's Rating Services, Inc. and Moody's
Investor Services, respectively.
(z) Except as described in the Prospectus, with respect to MetLife (as
defined below) 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 and General American have executed agreements waiving their
rights to require registration of any securities of the Company held by MetLife
as a result of the transaction contemplated hereby.
(aa) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of the
State of Delaware, 12 Del. C. ss. 3801 et seq. (the "DELAWARE BUSINESS TRUST
ACT"), with the power and authority (trust and other) to own property and
conduct its business as described in the Prospectus, and has conducted and will
conduct no business other than the transactions contemplated by the Prospectus.
(bb) Each of the Administrative Trustees is either an officer or
employee of the Company or one of its subsidiaries and has been duly authorized
by the Company or such subsidiary to serve in such capacity and to execute and
deliver the Amended and Restated Trust Agreement.
(cc) The Trust is not a party to or bound by any agreement or
instrument other than the Transaction Agreements to which it is a party and the
agreements and instruments contemplated by the Amended and Restated Trust
Agreement and described in the Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions contemplated by the
Transaction Agreements to which it is a party and described in the Prospectus;
and the Trust is not a party to or subject to any action, suit or proceeding of
any nature.
(dd) Each of the Company and the Trust has all requisite corporate and
trust power and authority, as applicable, to execute, issue and deliver the
Transaction Agreements and the Securities and to perform its respective
obligations thereunder; each Transaction Agreement to which the Company and the
Trust is a party has been duly authorized by the Company or the
11
Trust, as applicable, and each Transaction Agreement, when duly executed and
delivered by the Company and the Trust, and assuming due authorization,
execution and delivery thereof by the other parties thereto, will constitute a
valid and binding agreement of the Company and the Trust, as applicable,
enforceable against the Company and the Trust, as applicable, in accordance with
its terms, except (i) as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium, fraudulent transfer or
similar laws now or hereinafter in effect relating to or affecting creditors'
rights generally and by general principles of equity, including, without
limitation, concepts of reasonableness, materiality, good faith and fair
dealing, (ii) that the remedies of specific performance and injunctive and other
forms of equitable relief are subject to general equitable principles, whether
such enforcement is sought at law or in equity, (iii) that such enforcement may
be subject to the discretion of the court before which any proceedings therefore
may be brought and (iv) with respect to the rights of indemnification and
contribution under this Agreement and the Remarketing Agreement, which
enforcement thereof may be limited by federal or state securities laws or the
policies underlying such laws (such exceptions, collectively, the "STANDARD
QUALIFICATIONS"). Each of the Transaction Agreements conforms or will conform,
as the case may be, when executed and delivered in all material respects to the
description thereof contained in the Prospectus. The Indenture, the Amended and
Restated Trust Agreement and the Guarantee Agreement shall have been qualified
under the Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder (such exceptions, collectively, the "TRUST
INDENTURE Act"); and the Indenture, the Amended and Restated Trust Agreement and
the Guarantee Agreement conform in all material respects to the requirements of
the Trust Indenture Act.
(ee) Each of the Company and the Trust has all requisite corporate and
trust power and authority, as applicable, to execute, issue and deliver the
Units and to perform its obligations thereunder; the Units have been duly
authorized for issuance and sale by the Company and the Trust pursuant to this
Agreement, the Unit Agreement, the Amended and Restated Trust Agreement and the
Warrant Agreement (collectively, the "UNIT DOCUMENTS") and, when duly issued,
authenticated and delivered pursuant to the provisions of the Unit Agreements
against payment of the consideration thereof in accordance with this Agreement,
the Units will be valid and binding obligations of the Company and the Trust,
enforceable against the Company and the Trust and entitled to the benefits of
the Unit Documents, except for the Standard Qualifications.
(ff) The Preferred Securities have been duly authorized for issuance
and sale by the Trust pursuant to this Agreement, the Unit Documents and the
Amended and Restated Trust Agreement and, when duly issued, authenticated and
delivered pursuant to the provisions of this Agreement, the Unit Documents and
the Amended and Restated Trust Agreement against payment of the consideration
thereof in accordance with this Agreement, the Preferred Securities will be duly
and validly issued, fully paid and nonassessable interests in the Trust.
(gg) The Warrants have been duly authorized for issuance and sale by
the Company pursuant to this Agreement, the Unit Agreement, and the Warrant
Agreement and, when duly issued, countersigned and delivered pursuant to the
provisions of this Agreement, the Unit Agreement and the Warrant Agreement
against payment of the consideration therefor in
12
accordance with this Agreement and the Warrant Agreement, the Warrants will be
valid and binding obligations of the Company, enforceable against the Company
and entitled to the benefits of the Warrant Agreement, except for the Standard
Qualifications.
(hh) The Debentures have been duly authorized for issuance and sale by
the Company pursuant to this Agreement and the Indenture and, when duly issued,
authenticated and delivered pursuant to the provisions of this Agreement and the
Indenture, against payment of the consideration therefor in accordance with this
Agreement, the Debentures will be valid and binding obligations of the Company,
enforceable against the Company and entitled to the benefits of the Indenture,
except for the Standard Qualifications.
(ii) The Warrant Shares have been duly authorized and reserved for
issuance by the Company upon exercise of the Warrants, and the Warrant Shares,
when duly issued and delivered upon such exercise in accordance with the terms
of the Warrant Agreement and, assuming payment for such Warrant Shares in the
manner contemplated by the Unit Agreement and Warrant Agreement, will be validly
issued, free of preemptive rights, fully paid and nonassessable.
(jj) 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 Securities to facilitate the
sale or resale of such securities.
(kk) No event has occurred nor has any circumstance arisen which, had
the Securities been issued on the date hereof, would constitute a default or an
event of default under the Indenture, the Amended and Restated Trust Agreement
or the Guarantee Agreement.
(ll) 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 Unit Securities by the Underwriters. On the basis
of the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, each of the Company and the Trust agree to sell
to the several Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase from the Company and the Trust the Firm Units set
forth opposite that Underwriter's name in Schedule 1 hereto. The price of the
Firm Units shall be 97.0% of the stated amount thereof. The Company shall not be
obligated to deliver any of the Securities to be delivered on the Delivery Date
except upon payment for all the Securities to be purchased on the Delivery Date
as provided herein.
3. Offering of Units by the Underwriters. The several Underwriters
propose to offer the Units for sale upon the terms and conditions set forth in
the Prospectus.
4. Delivery of and Payment for the Unit Securities. (a) Delivery of
and payment for the Firm Units shall be made at the office of Simpson
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Thacher & Bartlett, 425 Lexington Avenue, New York, New York 10017, 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 Units 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 and payment for the Firm Units, the
"FIRST DELIVERY DATE"). On the First Delivery Date, the Company shall deliver or
cause to be delivered certificates representing the Units 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 Units shall be registered in such
names and in such denominations as Lehman Brothers Inc. shall request in writing
not less than two full business days prior to the First Delivery Date.
(a) The Company and the Trust hereby grant the Option to the
Underwriters to purchase the Option Units at the same purchase price as the
Underwriters shall pay for the Firm Units. The Option may be exercised in whole
or in part from time to time at any time not more than 30 days subsequent to the
date of this Agreement upon notice in writing delivered by facsimile by the
Lehman Brothers Inc., on behalf of itself and the other Underwriters to the
Company setting forth the number of whole Option Units as to which the
Underwriters are exercising the Option.
The date for the delivery of and payment for the Option Units, 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 Units is given. On the Second Delivery
Date, the Company shall deliver or cause to be delivered certificates
representing the Units 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
Units shall be registered in the name specified in paragraph (c) below and in
such denominations as Lehman Brothers Inc. shall request in writing not less
than two full business days prior to the Second Delivery Date. For the purpose
of expediting the checking and packaging of the certificates for the Option
Units.
(b) The Company will deliver, against payment of the purchase price,
the Units in the form of one or more permanent global certificates (the "GLOBAL
UNITS"), registered in the name of Cede & Co., as nominee for The Depository
Trust Company ("DTC"). The Global Units will be made available, at the request
of the Underwriters, for checking at least 24 hours prior to the Delivery Date.
14
5. Further Agreements of the Company and the Trust. The Company and
the Trust further agree:
(a) To prepare the Prospectus in a form approved by Lehman Brothers
Inc. 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 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 Units; 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 Units 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 (other than in connection with the issuance of Warrant Shares upon
exercise of the Warrants); 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 provided that this paragraph
(a) and paragraphs (c), (d) and (e) below shall not apply to the Company's
obligation, if any, to deliver a current prospectus at the time of the issuance
of Warrant Shares upon exercise of the Warrants, in connection with a redemption
of or exchange for the Warrants or in connection with any remarketing of the
Preferred Securities;
(b) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed or facsimile signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statements 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 Units or any
Securities 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 the light of the
15
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 Lehman Brothers Inc., 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 Units, 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
Lehman Brothers Inc. 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 Lehman Brothers
Inc. may reasonably request to qualify the Units for offering and sale under the
securities laws of such jurisdictions in the United States and Canada as Lehman
Brothers Inc. may request and in such other jurisdictions as the Company and
Lehman Brothers Inc. may mutually agree, and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Securities;
provided that, in connection therewith, the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(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 Units
(except after consultation with the Underwriters and as may be permitted by
under federal securities laws);
(i) To use its best efforts to cause the Securities to be accepted for
clearance and settlement through the facilities of DTC;
(j) To use its commercially reasonable efforts to cause the Units to
be listed on the New York Stock Exchange by the First Delivery Date;
16
(k) To execute and deliver each of the Transaction Agreements (other
than this Agreement) in form and substance reasonably satisfactory to the
Company and to Lehman Brothers Inc.;
(l) To apply the net proceeds from the issuance of the Units and the
contemplated sale of Senior Notes as set forth under "Use of Proceeds" in the
Prospectus;
(m) To take such steps as shall be necessary to ensure that the
Company or any of its subsidiaries (other than the Trust) and use its reasonable
best efforts to ensure that the Trust shall not become an "investment company"
as defined, and subject to regulation, under the Investment Company Act; and
(n) 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 Securities or any other securities that
are substantially similar to the Securities or any securities convertible into
or exercisable or exchangeable for any of the Securities 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
Securities 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 Securities
or such other securities, in cash or otherwise without the prior written consent
of Lehman Brothers Inc., which shall not be unreasonably withheld or delayed,
except that the foregoing restrictions do 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 Securities to be
sold hereunder, (C) the issuance or transfer of any of the Securities pursuant
to existing reservations, agreements and stock incentive plans, (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 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 hereto, and (E) the issuance and sale of
the Senior Notes. In addition, the Company shall cause each of Metropolitan Life
Insurance Company and each of its affiliates (collectively, "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 Schedule 3 hereto, to the effect of the
agreement of the Company and the Trust 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
and the Trust contained in this paragraph and deliver such agreements by the
date hereof.
17
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 Securities 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 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 costs, if any, of producing and distributing the Transaction Agreements;
(f) the fees and expenses of qualifying the Unit Securities and, if applicable,
the Warrant Shares under the securities laws of the several jurisdictions in the
United States and Canada as provided in Section 3(c) and of preparing,
photocopying and distributing U.S. and, if applicable, Canadian Blue Sky
memoranda (including reasonable related fees and expenses of counsel to the
Underwriters in connection therewith); (g) the expenses of the Company and the
Underwriters in connection with the marketing and offering of the Units,
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 Units; (h) all fees and expenses incurred in connection with any rating
of the Unit Securities; (i) all expenses and fees in connection with the
application for listing of the Units and the Warrant Shares on the New York
Stock Exchange (the "NYSE"); subject to official notice of issuance; (j) the
fees and expenses of the Company's and the Trust's counsel and independent
accountants and the fees and expenses (including fees and disbursements of
counsel) of the Unit Agent, Warrant Agent, the Property Trustee, the Guarantee
Trustee, the Administrative Trustees and the Indenture Trustee; (k) the costs
and charges of any registrar, transfer agent, paying agent and exchange agent
under the Transaction Agreements; and (l) all other costs and expenses incident
to the performance of the obligations of the Company and the Trust 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 Units
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
and the Trust 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:
18
(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 any Delivery Date, that, in the opinion of Simpson Thacher &
Bartlett, 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 omit 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
any applicable Delivery Date, 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.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of the Registration Statement, the Preliminary
Prospectus, the Prospectus, the Transaction Agreements and the Securities, and
all other legal matters relating to the offering, issuance and sale of the
Securities and the transactions contemplated hereby and thereby shall be
reasonably satisfactory in all material respects to counsel to the Underwriters.
(d) 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) The Registration Statement was declared effective under the
Securities Act, and each of the Indenture, the Amended and Restated Trust
Agreement and the Guarantee Agreement was qualified under the Trust
Indenture Act as of the date and time specified in such opinion, 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 no stop order suspending the effectiveness of the
Registration Statements 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 notes thereto and related
schedules and other financial, statistical and accounting data contained
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, and the
19
Indenture, the Amended and Restated Trust Agreement and the Guarantee
Agreement conform in all material respects to the requirements of the Trust
Indenture Act.
(iii) The Company has duly authorized, executed and delivered
this Agreement.
(iv) The Unit Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the other parties thereto, constitutes a valid and binding
obligation of the Company and the Trust, enforceable against the Company
and the Trust in accordance with its terms.
(v) The Warrant Agreement has been duly authorized by the Company
and, assuming due authorization, execution and delivery by the
Underwriters and the Warrant Agent, constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms.
(vi) The Guarantee Agreement has been duly authorized, executed
and delivered by the Company and, assuming due authorization, execution and
delivery by the Guarantee Trustee, constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with its terms.
(vii) Each of the Original Indenture and the Supplemental
Indenture has been duly authorized, executed and delivered by the Company
and, assuming due authorization, execution and delivery thereof by the
Indenture Trustee, constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
(viii) The Remarketing Agreement has been duly authorized by the
Company and, assuming due authorization, execution and delivery by the
Remarketing Agent, constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
(ix) The Units have been duly authorized, executed and issued by
the Company and, assuming due authentication of the Units by the Trust and
the Unit Agent and upon payment for and delivery of the Units in accordance
with this Agreement and the other Unit documents, the Units will be valid
and binding obligations of the Company and the Trust, enforceable against
the Company and the Trust and entitled to the benefits of the Unit
Agreement.
(x) The Warrants have been duly authorized, executed and issued
by the Company and, assuming the Warrants are duly countersigned by the
Warrant Agent, and upon payment for and delivery of the Warrants in
accordance with this Agreement, the Unit Agreement and the Warrant
Agreement, the Warrants will be valid and binding obligations of the
Company, enforceable against the Company and entitled to the benefits of
the Unit Agreement and the Warrant Agreement.
20
(xi) The Debentures have been duly authorized, executed and
issued by the Company and, assuming due authentication of the Debentures
by the Indenture Trustee, and upon payment for and delivery of the
Debentures in accordance with the Amended and Restated Trust Agreement
and the Indenture, the Debentures will be valid and binding obligations of
the Company, enforceable against the Company and entitled to the benefits
of the Indenture.
(xii) The Warrant Shares have been duly reserved for issuance by
the Company, provided that such opinion may be based solely on the number
of Warrant Shares issuable as of such Delivery Date, without regard to the
anti-dilution provisions of the Warrants, and, assuming any additional
Warrant Shares which are issuable based on such anti-dilution provisions
have been duly reserved for issuance by the Company, Warrant Shares, when
issued in accordance with the Warrant Agreement, will be validly issued,
fully paid and nonassessable, and the issuance of the Warrant Shares will
not be subject to any preemptive or similar rights.
(xiii) The statements contained in the Prospectus under the
captions "Description of the Units", "Description of the Warrants",
"Description of the Preferred Securities", "Description of the Debentures",
"Description of the Guarantee", "Relationship Among the Preferred
Securities, The Debentures and The Guarantee" including in each case any
statements referred to in the applicable section of the base prospectus
included in the Prospectus, "Description of the Capital Stock of RGA",
insofar as such statements purport to summarize certain provisions of the
Transaction Agreements and the Securities, as the case may be, constitute
accurate summaries of the provisions described therein in all material
respects and the Securities conform in all material respects to the
summaries thereof in such sections.
(xiv) (a) Such opinion shall include a statement to the effect
that it confirms the opinions set forth in the Prospectus under the caption
"Material United States Federal Income Tax Consequences" and (b) the
statements set forth in the Prospectus under the caption "Material United
States Federal Income Tax Consequences," insofar as they purport to
constitute summaries of matters of United States federal income tax law and
regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
(xv) The execution and delivery by the Company and the Trust of
the Transaction Agreements, as applicable, the issuance and sale of the
Unit Securities by the Company and the Trust, as applicable, the issuance
of the Warrant Shares upon due exercise of the Warrants and the compliance
by the Company and the Trust with all of the provisions of the Transaction
Agreements (other than compliance by the Company and the Trust with
securities, corporation and trust laws, as applicable, in connection with
any redemption of or exchange for the Warrants or any remarketing or
exchange of Preferred Securities or the Debentures, as to which such
counsel need not express any opinion) will not conflict with or result in a
breach or violation of any U.S. federal or Missouri statute, rule or
regulation reasonably recognized
21
by such counsel as applicable to transactions of this kind, 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 or assets.
(xvi) No consent, approval, authorization, order, license,
registration or qualification of or with any U.S. federal or Missouri
governmental agency or body is required for the issuance and sale of the
Unit Securities by the Company and the Trust, the issuance of the Warrant
Shares by the Company upon due exercise of the Warrants and the compliance
by the Company and the Trust with all of the provisions of the Transaction
Agreements (other than compliance by the Company and the Trust with
securities, corporation and trust laws, as applicable, in connection with
any redemption of or exchange for the Warrants or any remarketing or
exchange of Preferred Securities or the Debentures, as to which such
counsel need not express any opinion), except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications which
have been obtained or made or as may be required under state securities or
Blue Sky Laws in connection with the purchase and distribution of the
Securities by the Underwriters.
The opinions described in paragraph numbers (iv) through (xi) above may be
subject to the effect of applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, receivership, moratorium, arrangement and assignment for the
benefit of creditors laws, and other similar laws relating to or affecting the
rights and remedies of creditors generally. The opinions may also be subject to
the effect of general principles of equity, whether applied by a court of law or
equity, including, but not limited to, principles (i) governing the availability
of specific performance, injunctive relief or other equitable remedies, (ii)
affording equitable defenses (e.g., waiver, laches and estoppel) against a party
seeking enforcement, (iii) requiring good faith and fair dealing in the
performance and enforcement of a contract by the party seeking its enforcement,
(iv) requiring reasonableness in the performance and enforcement of an agreement
by the party seeking its enforcement, (v) requiring consideration of the
materiality of a breach or the consequences of the breach to the party seeking
its enforcement, (vi) requiring consideration of the impracticability or
impossibility of performance at the time of attempted enforcement and (vii)
affording defenses based upon the unconscionability of the enforcing party's
conduct after the parties have entered into the contract. Such opinions may also
be subject to the effect of generally applicable rules of law that (i) may,
where less than all of a contract may be unenforceable, limit the enforceability
of the balance of the contract to circumstances in which the unenforceable
portion is not an essential part of the agreed exchange, and (ii) govern and
afford judicial discretion regarding the determination of damages and
entitlement to attorneys' fees and other costs. Such opinions may also be
subject to the qualification that the enforceability of any indemnification or
contribution provisions set forth in any documents or agreements referred to
herein may be limited by federal or state securities laws or by public policy.
In addition, the opinions of such counsel described in this paragraph shall
be rendered to the Underwriters at the request of the Company and shall so state
therein. Such opinions may
22
recite that no opinion is expressed with respect to, and that such counsel is
not passing upon, and does not assume responsibility for (i) any matters
concerning The Depository Trust Company or its policies, practices or procedures
or (ii) 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 it has participated in
conferences with officers and other representatives of the Company and the
Trust, 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, 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 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 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.
(e) James E. Sherman, Esq., Senior 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:
(i) The Company and each of its Significant Subsidiaries which
are 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
23
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 the Transaction
Agreements and the Unit Securities and to consummate the transactions
contemplated hereby or thereby, including, without limitation, the
corporate power and authority to issue, sell and deliver the Units and the
Warrant Shares as provided herein and in the Warrant Agreement.
(iv) The Company had an authorized capitalization as of
September 30, 2001 as set forth in the Prospectus.
(v) To the knowledge of such counsel, neither the Company nor any
of its Significant Subsidiaries which are incorporated in the United States
is (i) in violation of its respective charter or bylaws, (ii) is in default
in the performance of any obligation, agreement or condition contained in
any material bond, debenture, note or any other evidence of indebtedness or
in any other instrument, indenture, mortgage, deed of trust, retrocessional
treaty or arrangement, or other material agreement to which it is a party
or by which it is bound or to which any of its properties is subject or
(iii) is in violation of any U.S. federal or Missouri law, statute, rule,
regulation, judgment or court decree applicable to the Company or its
Significant Subsidiaries which are incorporated in the United States,
except in the case of clauses (ii) and (iii) for any such violation or
default which would not reasonably be expected to have a Material Adverse
Effect.
(vi) The execution and delivery by the Company and the Trust of
the Transaction Agreements, as the case may be, the issuance and sale of
the Unit Securities, the issuance of the Warrant Shares by the Company upon
due exercise of the Warrants and the compliance by the Company and the
Trust with all of the provisions of the Transaction Agreements 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
24
States, including the Amended and Restated Trust Agreement and the Trust
Certificate, (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 (other than compliance by the Company and the Trust with
securities, corporation and trust laws, as applicable, in connection with
any redemption of or exchange for the Warrants or any remarketing or
exchange of Preferred Securities or the Debentures, as to which such
counsel need not express any opinion), (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, except for any such violations, breaches or
defaults which would not reasonably be expected to have a Material Adverse
Effect and except for such consents as may have been obtained by the
Company or such consents or filings as may be required or such 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 and the Trust of the Transaction Agreements, as the
case may be, the issuance and sale of the Unit Securities by the Company
and the Trust, the issuance of the Warrant Shares by the Company upon due
exercise of the Warrants and the compliance by the Company and the Trust
with all of the provisions of the Transaction Agreements (other than
compliance by the Company and the Trust with securities, corporation and
trust laws, as applicable, in connection with any redemption of or exchange
for the Warrants or any remarketing or exchange of Preferred Securities or
the Debentures, 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 Unit Securities and the exercise of the Warrants, 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 for the execution and delivery by the
Company and the Trust of the Transaction Agreements, as the case may be,
the issuance and sale of the Unit Securities by the Company and the Trust,
the issuance of the Warrant Shares by the Company upon due exercise of the
Warrants and the compliance by the Company and the Trust with all of the
provisions of the Transaction Agreements (other than compliance by the
Company and the Trust with securities, corporation and trust laws, as
applicable, in connection with any redemption of or exchange for the
Warrants or any remarketing or exchange of Preferred Securities or the
Debentures, 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 Unit Securities and the exercise of the Warrants, if at
all, or (iii) have been obtained.
(vii) To the best knowledge of such counsel, the Company and each
of its Significant Subsidiaries which are incorporated in the United States
has (i) all Authorizations necessary to engage in the business currently
conducted by it in the manner described in the Prospectus, except where
failure to hold such Authorizations
25
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.
(viii) Neither the Company nor any of its subsidiaries (including
the Trust) is, or after the application of the net proceeds from the sale
of the Units and the concurrent sale of the Senior Notes will be, an
"investment company" as defined, and subject to regulation under, the
Investment Company Act.
(ix) 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 such Delivery Date, complied and comply, as the case may be, as
to form in all material respects with the requirements of the Exchange Act.
(x) 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 and the Trust, representatives of Deloitte & Touche, the
Underwriters and their counsel in connection with the preparation of the
Registration Statements and the Prospectus at which conferences the contents of
the Registration Statements 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
26
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 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 such Delivery Date, in form and substance reasonably
satisfactory to the Underwriters, substantially to the effect that:
(i) Each of the Company's Canadian subsidiaries has been duly
incorporated and is existing under the laws of its respective 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 and
the Trust of the Transaction Agreement, as the case may be, the issuance
and sale of the Unit Securities, the exercise of the Warrants, the issuance
of the Warrant 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 subsidiaries, or an
acceleration of indebtedness pursuant to, (i) the constating documents of
any of the Company's Canadian 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 Canadian
subsidiaries is a party or by which any of them or their property is or may
be bound, (iii) any material statute, rule or regulation known to such
counsel to be applicable to any of the Company's Canadian subsidiaries 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 any of the Company's Canadian
subsidiaries or their 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
27
execution, delivery and performance by the Company and the Trust of the
Transaction Agreements, as the case may be, the issuance and sale of the
Unit Securities, the exercise of the Warrants, the issuance of the Warrant
Shares and the consummation of the transactions contemplated hereby and
thereby.
(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 Securities; 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 Securities and to the best
knowledge of such Counsel, no action, suit or proceeding is pending against
or affecting or threatened against, any of the Company's Canadian
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 offer or issuance of the Unit
Securities or in any manner draw into question the validity of the
Transaction Agreements or the Securities.
(iv) To the best knowledge of such counsel, each of the Company's
Canadian 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
Canadian 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.
(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
28
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 and
the Trust of the Transaction Agreement, as the case may be, the issuance
and sale of the Unit Securities, the exercise of the Warrants, the issuance
of the Warrant 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 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 and the
Trust of the Transaction Agreements, as the case may be, the issuance and
sale of the Unit Securities, the exercise of the Warrants, the issuance of
the Warrant Shares and the consummation of the transactions contemplated
hereby and thereby.
(iii) To the best knowledge of such counsel, no action has been
taken and no Barbados statute, rule or regulation or order has been
enacted, adopted or issued by any Barbados governmental agency that
prevents the issuance of the Securities; no injunction, restraining order
or order of any nature by a Barbados court of competent jurisdiction has
been issued that prevents the issuance of the Securities and to the best
knowledge of such Counsel, no action, suit or proceeding is pending against
or affecting or threatened against, any of the Company's Barbados
subsidiaries before any court or arbitrator or any governmental body,
agency or official which, if adversely determined, would prohibit,
interfere with or adversely affect the issuance or marketability of the
Unit Securities or in any manner draw into question the validity of the
Transaction Agreements or the Securities.
(iv) To the best knowledge of such counsel, each of the Company's
Barbados subsidiaries has (i) all Authorizations necessary to engage in the
business currently conducted by it in the manner described in 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
29
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.
(h) Richards Layton & Finger, P.A. shall have furnished to the
Underwriters its written opinion, as special Delaware counsel to the Trust,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Underwriters, substantially to the
effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act and
all filings required under the Delaware Business Trust Act with respect to
the creation and valid existence of the Trust as a business trust in the
State of Delaware have been made.
(ii) Under the Amended and Restated Trust Agreement and the
Delaware Business Trust Act, all necessary trust action has been taken on
the part of the Trust to duly authorize the execution and delivery of the
Transaction Agreements to which the Trust is a party and the execution and
delivery of the Preferred Securities.
(iii) The Preferred Securities are duly authorized by the Trust
Agreement, and when authenticated, issued and delivered by the Trust in
accordance with the Trust Agreement, the Trust Preferred Securities will be
duly and validly issued and fully paid and nonassessable interests in the
Trust.
(iv) Under the Amended and Restated Trust Agreement and the
Business Trust Act, the Trust has all necessary trust power and authority
to execute and deliver the Transaction Agreements to which it is a party,
to execute and deliver the Preferred Securities and to perform its
obligations thereunder.
(v) Under the Amended and Restated Trust Agreement and the
Business Trust Act, the issuance and sale by the Trust of the Preferred
Securities and the execution and delivery by the Trust of this Agreement
and the Transaction Agreements to which it is a party, and the performance
by the Trust of its obligations thereunder, have been duly authorized by
all necessary trust action on the part of the Trust.
(vi) The holders of Preferred Securities, in their capacity as
such, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of
30
Delaware. We note that such holders may be obligated to make payments as
set forth in the Amended and Restated Trust Agreement.
(vii) Under the Business Trust Act and the Amended and Restated
Trust Agreement, the issuance by the Trust of the Preferred Securities is
not subject to any preemptive purchase rights of any person.
(viii) No consent, approval, license, authorization, order,
registration or qualification of or with any Delaware court or Delaware
governmental agency or body is required solely in connection with (i) the
issuance and sale by the Trust of the Preferred Securities as contemplated
by the Prospectus or (ii) the execution, delivery and performance by the
Trust of the Transaction Agreements to which the Trust is a party, and the
consummation of the transactions contemplated hereby and thereby.
(ix) The issuance and sale by the Trust of the Preferred
Securities pursuant to this Agreement and the Amended and Restated Trust
Agreement, and the execution and delivery by the Trust of this Agreement
and each of the Transaction Agreements to which it is a party, and the
performance by the Trust of its obligations thereunder, will not violate
(i) the Trust Certificate or the Amended and Restated Trust Agreement or
(ii) any Delaware statute, rule or regulation.
(x) After due inquiry limited to, and solely to the extent
disclosed thereupon, the court dockets for active cases of the Court of
Chancery of the State of Delaware in and for New Castle County, Delaware,
of the Superior Court of the State of Delaware in and for New Castle
County, Delaware, and of the United States Federal District Court sitting
in the State of Delaware, in these courts there are no pending actions,
suits or proceedings against the Company or the Trust.
(xi) Each of this Agreement, the Unit Agreement and the
Remarketing Agreement has been duly authorized, executed and delivered by
the Trust.
(xii) Each of the Original Trust Agreement and the Amended and
Restated Trust Agreement, assuming due authorization, execution and
delivery by the parties to thereto, constitute obligations of the Trust
enforceable against the parties thereto in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
(xiii) The Units have been duly authorized, executed and issued
by the Trust.
(i) Richards Layton & Finger, P.A. shall have furnished to the
Underwriters its written opinion, as special Delaware counsel to the Delaware
Trustee, addressed to the Underwriters and dated such Delivery Date, in form and
substance satisfactory to the Underwriters, substantially to the effect that:
31
(i) The Bank of New York (Delaware) is duly incorporated and
validly existing as a Delaware banking corporation under the laws of the
State of Delaware.
(ii) The Bank of New York (Delaware) has the power and authority
to execute, deliver and perform its obligations under the Trust Agreement
and to consummate the transactions contemplated thereby.
(iii) The Bank of New York (Delaware) has duly authorized,
executed and delivered the Trust Agreement.
(j) Simpson Thacher & Bartlett, shall have furnished to the
Underwriters its written opinion, as counsel to the Underwriters, addressed to
the Underwriters and dated the Delivery Date, in form and substance reasonably
satisfactory to the Underwriters.
(k) By the date hereof and on the Delivery Date, Deloitte & Touche
shall have furnished to the Underwriters its letters, in form and substance
reasonably satisfactory to the Underwriters, containing statements and
information of the type customarily included in accountants' initial and
bring-down "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(l) 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 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
and the Trust in Section 1 are true and correct in all material respects as
of the applicable Delivery Date; the Company and the Trust have complied
with in all material respects with all of their agreements contained herein
to be performed prior to or on the applicable Delivery Date; and the
conditions set forth in Sections 7(a) and (q) 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) from
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 change, or any development
involving a prospective 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
32
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 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.
(m) Each of the Transaction Agreements (other than this Agreement)
shall be in form and substance reasonably satisfactory to the Underwriters and
the Company and shall have been duly executed and delivered by the respective
parties thereto; and the Units shall have been duly executed and delivered by
the Company and duly authenticated by the Property Trustee, in each case
pursuant to the Unit Agreement.
(n) [Reserved]
(o) The lock-up letter agreements, each substantially in the form of
Schedules 3 and 5 hereto, from each of MetLife and the executive officers and
directors of the Company listed in Schedule 4 hereto relating to sales and
certain other dispositions of the Securities 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.
(p) 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 Lehman
Brothers Inc., so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or
33
the delivery of the Unit Securities being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(q) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities 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 and (ii) no such organization shall have publicly announced or
privately communicated to the Company that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's debt
securities.
(r) 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 a material adverse change in general domestic or international
economic, political or financial conditions, including, without limitation, as a
result of terrorist activities, or 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 Lehman Brothers Inc., impracticable or inadvisable to
proceed with the public offering or delivery of the Units being 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 (j) above) shall state that
they may be relied upon by Simpson Thacher & Bartlett as to matters of law
(other than New York and federal law) in rendering the opinion referred to in
(j) 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 Units), to which that Underwriter,
officer,
34
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
the Trust (or based upon any written information furnished by the Company or the
Trust) filed in any jurisdiction specifically for the purpose of qualifying any
or all of the Units under the securities laws of any state or other jurisdiction
(such application, document or information being hereinafter called a "BLUE SKY
APPLICATION"), (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
or (iii) any act or failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to, the Units or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Company shall not
be liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failure to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct); 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 Lehman Brothers
Inc. 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 or 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 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 and the Trust 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, the Trust, their respective officers and employees,
each of their
35
directors, and each person, if any, who controls the Company or the Trust 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, the Trust 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 and the Trust through Lehman
Brothers Inc. by or on behalf of that Underwriter specifically for inclusion
therein and described in Section 8(e), and shall reimburse the Company, the
Trust and any such director, officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by the Company,
the Trust 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, the Trust 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 this Section 8 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 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
36
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, other than to the extent
that such indemnification is unavailable or insufficient due to a failure to
provide prompt notice in accordance with Section 8(c), then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
and the Trust on the one hand and the Underwriters on the other from the
offering of the Units, 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 and the Trust 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 and the Trust 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 Units purchased under this Agreement (before deducting expenses)
received by the Company and the Trust on the one hand, and the total
underwriting discounts and commissions realized or received by the Underwriters
with respect to the Units purchased under this Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Units 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, the Trust 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, the Trust 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
37
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation, which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
8(d) shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Units
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 and the Trust
acknowledge that the statements with respect to the offering of the Units by the
Underwriters set forth in the last paragraph on the cover page and the fourth
sentence in the ninth, tenth, eleventh, twelfth, thirteenth, fifteenth,
sixteenth 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 Lehman Brothers Inc. 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 non-defaulting Underwriters shall be obligated to purchase the number
of Units which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of Units set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the aggregate number of Units 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 Units on such Delivery Date if the total number of Units
which the defaulting Underwriter or Underwriters agreed but failed to purchase
on such date exceeds 9.09% of the total aggregate number of the Units to be
purchased on such Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the aggregate number of the
Units which it agreed to purchase on such 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 Lehman Brothers Inc.
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 Units to
be purchased on such Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to Lehman Brothers Inc. do not elect to purchase on
such Delivery Date the aggregate number of Units which the defaulting
Underwriters agreed but failed to
38
purchase, this Agreement (or with respect to the Option Delivery Date, the
obligation of the Underwriters to purchase the Option Units) 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
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 Units 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 Units of a defaulting or
withdrawing Underwriter, either Lehman Brothers Inc. or the Company may postpone
the Delivery Date for up to seven full business days in order to effect any
changes that, in the opinion of counsel to the Company or counsel to the
Underwriters, may be necessary in the Prospectus or in any other document or
arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Underwriters by notice given to and received by the Company
prior to delivery of and payment for the Units if, prior to that time, any of
the events described in Sections 7(p), 7(q) or 7(r) shall have occurred or if
the Underwriters shall decline to purchase the Units for any reason permitted
under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Company or the
Trust shall fail to tender the Units for delivery to the Underwriters by reason
of any failure, refusal or inability on the part of the Company or the Trust 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(r))or (b) the Underwriters shall decline to purchase the Units 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(r)), 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 Units, 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 Lehman Brothers Inc., 101 Hudson
Street, Jersey City, New Jersey, 07302, Attention: Equity Syndicate
Department (Fax No: 201-524-5980), with a copy to the General Counsel's
Office, 101 Hudson Street, Jersey City, New Jersey 07302;
39
with a copy to Simpson Thacher & Bartlett, 425 Lexington Avenue, New
York, New York 10017, Attention: Michael Nathan, Esq. (Fax No.:
212-455-2502).; and
(b) if to the Company or to the Trust, 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., Senior 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.: 314-259-2020);
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 Lehman Brothers
Inc., which address will be supplied to any other party hereto by Lehman
Brothers Inc. 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 Lehman Brothers Inc. 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, the
Trust 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
and the Trust 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 the Trust,
and any person controlling the Company or the Trust 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, the Trust 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 Units 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.
40
16. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
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.]
41
If the foregoing correctly sets forth the agreement between the
Company, the Trust and the Underwriters, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
REINSURANCE GROUP OF AMERICA,
INCORPORATED
By: ____________________________________
Name:
Title:
RGA CAPITAL TRUST I
BY: REINSURANCE GROUP OF AMERICA,
INCORPORATED, AS DEPOSITOR
By: ____________________________________
Name:
Title:
Accepted and agreed by:
LEHMAN BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
By Lehman Brothers Inc.
By: __________________________
Authorized Representative
SCHEDULE 1
NUMBER OF FIRM UNITS
UNDERWRITER TO BE PURCHASED
- ----------- --------------------
Lehman Brothers Inc................................... 3,150,000
Banc of America Securities LLC........................ 1,350,000
---------
Total....................................... 4,500,000
=========
SCHEDULE 2
LIST OF SUBSIDIARIES AND AFFILIATES OF
REINSURANCE GROUP OF AMERICA, INCORPORATED
AS OF DECEMBER 12, 2001
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 Sequros 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 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 Canada Management Inc.: a Canadian corporation 100% wholly-owned
by RGA under CBCA.
RGA Life Reinsurance Company of Canada Limited: a Canadian corporation
100% wholly-owned by RGA Canada Management Inc.
RGA International Co. (Nova Scotia ULC): 100% owned by Reinsurance Group of
America, Incorporated.
RGA Financial Products Limited: 100% owned by RGA International Co.
(Nova Scotia ULC) (100 Class A shares and 100 Class B shares).
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 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
FORM OF LOCK-UP AGREEMENT
Lehman Brothers Inc.
Banc of America Securities LLC
c/o Lehman Brothers Inc.
101 Hudson Street
Jersey City, New Jersey 07302
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 4,500,000 Trust
Preferred Income Equity Redeemable Securities Units (the "UNITS")* (or up to
5,175,000 Units to the extent the underwriters exercise their option to purchase
additional Units)of Reinsurance Group of America, Incorporated, a Missouri
corporation (the "COMPANY"), and RGA Capital Trust I, a Delaware statutory
business trust (the "TRUST"), and that the Underwriters propose to reoffer the
Units to certain eligible purchasers (the "OFFERING"). Each Unit will consist of
a preferred security, liquidation preference $50 per security, of the Trust
(each, a "PREFERRED SECURITY") and a warrant (each, a "WARRANT") of the Company
to purchase shares (the "WARRANT SHARES") of common stock, par value $0.01 per
share, of the Company ("COMMON STOCK"). Each Preferred Security will represent
an undivided beneficial ownership interest in the assets of the Trust, which
assets will consist solely of the junior subordinated deferrable interest
debentures of the Company (the "DEBENTURES"). The Preferred Securities component
of the Units will entitle the holders to a fixed quarterly cash distribution,
which will be determined upon pricing. Each Warrant will be exercisable for a
fixed number of Warrant Shares (subject to customary antidilution adjustments)
of RGA common stock, at a price also to be determined upon pricing. Certain
payments on the Preferred Securities will be guaranteed (the "GUARANTEE") by the
Company. The Units, the Preferred Securities, the Warrants, the Warrant Shares,
Common Stock, the Debentures and the Guarantee are referred to herein
collectively as the "SECURITIES."
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 Securities or any other
securities that are substantially similar to the Securities or any securities
convertible into or exercisable or exchangeable for Securities or such other
securities (ii) enter into any swap or other agreement that transfers, in whole
or in part, any
- ----------
* "Preferred Income Equity Redeemable Securities(SM)" and "PIERS(SM)" are
service marks owned by Lehman Brothers Inc.
of the economic consequences of ownership of any of the Securities or such other
securities, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of any of the Securities or such other securities,
in cash or otherwise without the prior written consent of Lehman Brothers Inc.,
which consent shall not be unreasonably withheld or delayed.
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of securities 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 December 31, 2001, 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 Securities, 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, the Trust 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: December __, 2001
SCHEDULE 4
LIST OF PARTIES TO PROVIDE LOCK-UP LETTER AGREEMENTS
Directors:
J. Cliff Eason
Stuart I. Greenbaum
Terrence I. Lennon
Richard A. Liddy
William A. Peck
H. Edward Trusheim
A. Greig Woodring
[Mary Ann Brown and H. Edwin Tweedie do 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
Andre St-Amour
Graham S. Watson
SCHEDULE 5
FORM OF LOCK-UP AGREEMENT
Lehman Brothers Inc.
Banc of America Securities LLC
c/o Lehman Brothers Inc.
101 Hudson Street
Jersey City, New Jersey 07302
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 4,500,000 Trust
Preferred Income Equity Redeemable Securities Units (the "UNITS")* (or up to
5,175,000 Units to the extent the underwriters exercise their option to purchase
additional Units)of Reinsurance Group of America, Incorporated, a Missouri
corporation (the "COMPANY"), and RGA Capital Trust I, a Delaware statutory
business trust (the "TRUST"), and that the Underwriters propose to reoffer the
Units to certain eligible purchasers (the "OFFERING"). Each Unit will consist of
a preferred security, liquidation preference $50 per security, of the Trust
(each, a "PREFERRED SECURITY") and a warrant (each, a "WARRANT") of the Company
to purchase shares (the "WARRANT SHARES") of common stock, par value $0.01 per
share, of the Company ("COMMON STOCK"). Each Preferred Security will represent
an undivided beneficial ownership interest in the assets of the Trust, which
assets will consist solely of the junior subordinated deferrable interest
debentures of the Company (the "DEBENTURES"). The Preferred Securities component
of the Units will entitle the holders to a fixed quarterly cash distribution,
which will be determined upon pricing. Each Warrant will be exercisable for a
fixed number of Warrant Shares (subject to customary antidilution adjustments)
of RGA common stock, at a price also to be determined upon pricing. Certain
payments on the Preferred Securities will be guaranteed (the "GUARANTEE") by the
Company. The Units, the Preferred Securities, the Warrants, the Warrant Shares,
Common Stock, the Debentures and the Guarantee are referred to herein
collectively as the "SECURITIES."
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 (ii) enter into any swap or other agreement that transfers,
- ----------
* "Preferred Income Equity Redeemable Securities(SM)" and "PIERS(SM)" are
service marks owned by Lehman Brothers Inc.
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 Securities
or such other securities, in cash or otherwise without the prior written consent
of Lehman Brothers Inc., 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 Lehman Brothers Inc., 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
shares of common stock of the Company, provided that the shares of Common Stock
issued upon exercise shall remain subject to this Agreement.
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of securities 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 December 31,
2001, 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 Securities, 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, the Trust 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: December __, 2001
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.]