AMENDED AND RESTATED SECTION 382 RIGHTS AGREEMENT REINSURANCE GROUP OF AMERICA, INCORPORATED and MELLON INVESTOR SERVICES LLC Rights Agent Dated as of September 12, 2008
Exhibit 4.1
Execution Copy
AMENDED AND RESTATED SECTION 382 RIGHTS AGREEMENT
REINSURANCE GROUP OF AMERICA, INCORPORATED
and
MELLON INVESTOR SERVICES LLC
Rights Agent
Dated as of September 12, 2008
INDEX
Page | ||||
Section 1. Certain Definitions |
2 | |||
Section 2. Appointment of Rights Agent |
8 | |||
Section 3. Issue of Right Certificates |
8 | |||
Section 4. Form of Right Certificates |
10 | |||
Section 5. Countersignature and Registration |
11 | |||
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates |
12 | |||
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights |
12 | |||
Section 8. Cancellation and Destruction of Right Certificates |
14 | |||
Section 9. Reservation and Availability of Shares of Preferred Stock |
15 | |||
Section 10. Preferred Stock Record Date |
16 | |||
Section 11. Adjustment to Purchase Price, Number of Shares or Number of Rights |
16 | |||
Section 12. Certificate of Adjusted Purchase Price or Number of Shares |
23 | |||
Section 13. [Reserved] |
24 | |||
Section 14. Fractional Rights and Fractional Shares |
24 | |||
Section 15. Rights of Action |
26 | |||
Section 16. Agreement of Right Holders |
26 | |||
Section 17. Right Certificate Holder Not Deemed a Shareholder |
27 | |||
Section 18. Concerning the Rights Agent |
27 | |||
Section 19. Merger or Consolidation or Change of Name of Rights Agent |
28 | |||
Section 20. Duties of Rights Agent |
28 | |||
Section 21. Change of Rights Agent |
31 | |||
Section 22. Issuance of New Right Certificates |
31 |
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Page | ||||
Section 23. Redemption and Termination |
32 | |||
Section 24. Exchange |
33 | |||
Section 25. Notice of Proposed Actions |
34 | |||
Section 26. Notices |
35 | |||
Section 27. Supplements and Amendments |
36 | |||
Section 28. Successors |
36 | |||
Section 29. Benefits of This Rights Agreement |
37 | |||
Section 30. Determinations and Actions by the Board, etc. |
37 | |||
Section 31. Severability |
37 | |||
Section 32. Governing Law |
37 | |||
Section 33. Counterparts |
37 | |||
Section 34. Descriptive Headings |
37 | |||
Section 35. Prior Agreement |
38 |
Exhibit A-1
|
- | Form of Amended and Restated Certificate of Designation for Series A-1 Junior Participating Preferred Stock | ||
Exhibit A-2
|
- | Form of Certificate of Designation for Series B-1 Junior Participating Preferred Stock | ||
Exhibit B-1
|
- | Form of Right Certificate for Class A Rights | ||
Exhibit B-2
|
- | Form of Right Certificate for Class B Rights |
ii
AMENDED AND RESTATED SECTION 382 RIGHTS AGREEMENT
This Amended and Restated Section 382 Rights Agreement, dated as of September 12, 2008 and
effective as of immediately prior to the Acceptance Time (as defined below), of which the Rights
Agent shall be notified in writing (the “Rights Agreement”), is entered into between Reinsurance
Group of America, Incorporated, a Missouri corporation (the “Company”), and Mellon Investor
Services LLC, a New Jersey limited liability company, as rights agent (the “Rights Agent”).
W I T N E S S E T H
WHEREAS, the Company and MetLife (as defined below) entered into the Recapitalization and
Distribution Agreement on June 1, 2008, pursuant to which, among other things, the Company has
submitted at a special meeting of shareholders certain proposals to recapitalize its common stock
for approval of the shareholders of the Company;
WHEREAS, (a) the Company and certain of its Subsidiaries have generated net operating losses
for United States federal income tax purposes (“NOLs”); (b) such NOLs may potentially provide
valuable tax benefits to the Company; (c) the Company desires to avoid an “ownership change” within
the meaning of Section 382 (as defined below), and thereby preserve the ability to utilize such
NOLs, and (d) in furtherance of such objective, the Company desires to enter into this Rights
Agreement;
WHEREAS, on September 5, 2008, the Company’s shareholders have approved the recapitalization
proposal, and if the other terms and conditions set forth in the Recapitalization and Distribution
Agreement are satisfied or waived, MetLife will complete the Split-Off and the Additional
Divestiture Transactions (as defined below), which will constitute one or more testing dates for
purposes of Section 382;
WHEREAS, on June 2, 2008, the Company and the Rights Agent entered into a Section 382 Rights
Agreement (the “Original Section 382 Rights Agreement”), pursuant to which the Company appointed
the Rights Agent to act as provided therein, and the Rights Agent agreed so to act;
WHEREAS, on June 1, 2008 the Board of Directors authorized and declared a dividend
distribution of one right (hereinafter referred to as a “Class A Right”) for each share of common
stock, par value $0.01 per share, of the Company outstanding at the close of business on June 12,
2008 (the “Record Date”) (other than shares of such common stock held in the Company’s treasury on
such date), and has authorized the issuance of one Class A Right in respect of each share of common
stock issued between the Record Date (whether originally issued or issued from the Company’s
treasury) and the Distribution Date (as such term is defined in Section 3 hereof), each Class A
Right representing the right to purchase one one-hundredth of a share of Series A Preferred Stock
having the rights, powers and preferences set forth in the Certificate of Designation attached
hereto as Exhibit A-1, upon the terms and subject to the conditions hereinafter set forth;
WHEREAS, upon the filing of the Articles of Incorporation with the Office of the Secretary of
State, State of Missouri, the Company will effect the Recapitalization and reclassify its common
stock and redesignate each outstanding share of common stock as “Class A Common Stock,” and each
distributed Class A Right shall be adjusted as herein provided, in accordance
with the terms and conditions of the Original Section 382 Rights Agreement;
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WHEREAS, in connection with the Recapitalization, the Company will designate and issue a new
class of common stock as “Class B Common Stock”, and General American Life Insurance Company will
exchange its shares of Class A Common Stock (except for 3,000,000 shares of Recently Acquired
Stock, as defined in the Recapitalization and Distribution Agreement) for shares of Class B Common
Stock;
WHEREAS, each share of Class B Common Stock will, on issuance, be accompanied by one right
(hereinafter referred to as a “Class B Right,” and collectively with the Class A Rights, a “Right”
or the “Rights”), and the Board of Directors has authorized the issuance of one Class B Right in
respect of each share of Class B Common Stock issued (whether originally issued or issued from the
Company’s treasury) before the Distribution Date, each Class B Right representing the right to
purchase one one-hundredth of a share of Series B Preferred Stock having the rights, powers and
preferences set forth in the form of Certificate of Designation attached hereto as Exhibit A-2,
upon the terms and subject to the conditions hereinafter set forth;
WHEREAS, the Company desires to amend and restate the Original Section 382 Rights Agreement
to, among other things, clarify the effect of the Recapitalization on the Company’s outstanding
common stock and to provide for the issuance of the Class B Rights and the designation and amount,
powers, preferences, rights, qualifications, limitations and restrictions of the Series B Preferred
Stock underlying the Class B Rights as herein provided;
WHEREAS, Section 27 of the Original Section 382 Rights Agreement provides that the Original
Section 382 Rights Agreement may be supplemented or amended from time to time in any manner prior
to the time that any person or group becomes an Acquiring Person (as defined therein), provided
that an officer of the Company certifies to the Rights Agent that such desired supplements or
amendments comply with said Section 27;
WHEREAS, a duly authorized officer of the Company has delivered such written certification to
the Rights Agent on September 12, 2008 (immediately prior to the Acceptance Time); and
WHEREAS, the Company desires to amend and restate the Original Section 382 Rights Agreement,
as follows.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the Company and the Rights Agent hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Rights Agreement, the following
terms have the meanings indicated:
(a) “5% Shareholder” shall mean a Person or group of Persons that is a “5-percent shareholder”
of the Company pursuant to Treasury Regulation § 1.382-2T(g).
(b) “Acquiring Person” shall mean any Person (as hereinafter defined) who or which, without
the Prior Written Approval of the Company (as hereinafter defined), shall have become a 5%
Shareholder (other than by reason of Treasury Regulation Section 1.382-2T(j)(3)(i)) or be such a 5%
Shareholder after the date hereof, whether or not such Person continues to be a 5% Shareholder, but
shall not include (i) the Company, any Subsidiary of the
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Company, any employee benefit plan or compensation arrangement of the Company or any
Subsidiary of the Company, or any entity holding securities of the Company to the extent organized,
appointed or established by the Company or any Subsidiary of the Company for or pursuant to the
terms of any such employee benefit plan or compensation arrangement, (ii) any Grandfathered Person,
(iii) any Exempted Person, or (iv) any Person who or which inadvertently may become a 5%
Shareholder or otherwise becomes such a 5% Shareholder, so long as such Person promptly enters
into, and delivers to the Company, an irrevocable commitment promptly to divest, and thereafter
promptly divests (without exercising or retaining any power, including voting, with respect to such
securities), sufficient securities of the Company so that such Person ceases to be a 5% Shareholder
of the Company.
(c) “Acceptance Time” shall have the meaning set forth in the Recapitalization and
Distribution Agreement.
(d) “Additional Divestiture Transaction” shall have the meaning set forth in the
Recapitalization and Distribution Agreement.
(e) “Articles of Incorporation” shall mean the Articles of Incorporation of the Company, as
amended from time to time, including, without limitation, in connection with the Recapitalization.
(f) A Person shall be deemed the “Beneficial Owner” of, and shall be deemed to “beneficially
own”, any securities which such Person directly owns, or would be deemed to constructively own,
pursuant to Section 382 and the Treasury Regulations promulgated thereunder.
(g) “Board of Directors” shall mean the entire Board of Directors of the Company as
constituted from time to time, or a duly constituted committee thereof, to the extent that the
related rights, duties, responsibilities or obligations have been delegated to such a committee, as
applicable.
(h) “Business Day” shall mean any day other than a Saturday, Sunday, or a day on which banking
institutions in the States of Missouri and New Jersey are authorized or obligated by law or
executive order to close.
(i) “Class A Common Stock” shall mean (i) before the Recapitalization, the common stock, par
value $0.01 per share, of the Company, and (ii) after the Recapitalization, the Class A common
stock, par value $0.01 per share, of the Company into which such common stock is reclassified or
exchanged in the Recapitalization, or (iii) any shares into which such Class A common stock may be
reclassified or exchanged.
(j) “Class A Right” shall have the meaning set forth in the Recitals to this Rights Agreement.
(k) “Class A Right Certificate” shall have the meaning set forth in Section 3 hereof.
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(l) “Class B Common Stock” shall have the meaning set forth in the Recitals to this Rights
Agreement, or any shares into which such Class B Common Stock is reclassified or exchanged,
including pursuant to a Conversion, if any.
(m) “Class B Right” shall mean shall have the meaning set forth in the Recitals to this Rights
Agreement.
(n) “Class B Right Certificate” shall have the meaning set forth in Section 3 hereof.
(o) “Close of Business” on any given date shall mean 5:00 P.M., St. Louis, Missouri time, on
such date; provided, however, that if such date is not a Business Day it shall mean
5:00 P.M., St. Louis, Missouri time, on the next succeeding Business Day.
(p) “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any
successor statute.
(q) “Common Stock” shall mean the Class A Common Stock and the Class B Common Stock,
collectively, or severally as the context may require, except that, “Common Stock” when used with
reference to any Person other than the Company shall mean the capital stock with the greatest
Voting Power of such Person or the equity securities or other equity interest having power to
control or direct the management of such Person or, if such Person is a Subsidiary (as hereinafter
defined) of another Person, of the Person which ultimately controls such first-mentioned Person and
which has issued and outstanding such capital stock, equity securities or equity interests.
(r) “Company” shall have the meaning set forth in the Preamble of this Rights Agreement.
(s) “Conversion” shall have the meaning set forth in the Recapitalization and Distribution
Agreement.
(t) “Corporation Securities” shall mean (i) shares of Common Stock, (ii) shares of preferred
stock (other than preferred stock described in Section 1504(a)(4) of the Code) of the Company,
(iii) warrants, rights, or options (including options within the meaning of Treasury Regulation §
1.382-2T(h)(4)(v)) to purchase stock (other than preferred stock described in Section 1504(a)(4) of
the Code) of the Company, and (iv) any other interest that would be treated as “stock” of the
Company pursuant to Treasury Regulation § 1.382-2T(f)(18).
(u) “Distribution Date” shall have the meaning set forth in Section 3 hereof.
(v) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(w) “Exchange Ratio” shall have the meaning set forth in Section 24(a) hereof.
(x) “Exempted Person” shall mean:
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(i) any Person who directly acquires Corporation Securities from MetLife pursuant to
the Split-Off or any Additional Divestiture Transaction and would otherwise qualify as an
Acquiring Person upon consummation of the Split-Off or such Additional Divestiture
Transaction, respectively, unless and until such time as the Percentage Stock Ownership in
the Company of such Person shall be increased other than pursuant to the Split-Off or
Additional Divestiture Transaction, as applicable; or
(ii) any Person who the Company, in its sole discretion, determines is not a 5%
Shareholder at any time prior to the time at which the Company’s right of redemption expires
pursuant to Section 23(a) of this Rights Agreement; provided, however, that such a Person
will cease to be an “Exempted Person” if the Company makes a contrary determination;
provided further that, in the case of clause (i), (A) if any such Person ceases to
be a 5% Shareholder following such acquisition of Corporation Securities from MetLife
pursuant to the Split-Off or any Additional Divestiture Transaction, then such Person shall
cease to be an Exempted Person (it being understood that, after a Person ceases to be an
Exempted Person, such Person could become an Exempted Person at a later date by virtue of
events specified in the foregoing clause (i) or (ii) occurring after the date such Person
has ceased to be an Exempted Person), and (B) no immediate transferee of such an Exempted
Person shall be an Exempted Person unless such transferee shall otherwise be an Exempted
Person by virtue of the foregoing clause (i) or (ii).
(y) “Expiration Date” shall have the meaning set forth in Section 7(a) hereof.
(z) “Final Expiration Date” shall have the meaning set forth in Section 7(a) hereof.
(aa) “Grandfathered Person” shall mean any Person who would otherwise qualify as an Acquiring
Person as of the date of the Original Section 382 Rights Agreement (including, for clarification,
MetLife and its Subsidiaries), unless and until such time as the Percentage Stock Ownership in the
Company of such Person shall be increased, other than any increase pursuant to or as a result of
(i) the exercise of any option or warrant to purchase Corporation Securities from the Company, (ii)
any issuance of Corporation Securities by the Company, or a stock dividend, stock split or similar
transaction effected by the Company in which all holders of Common Stock are treated equally, or
(iii) the distribution or transfer of Common Stock from any Subsidiary of MetLife to Metlife or
another Subsidiary of Metlife prior to the consummation of the Split-Off.
(bb) “MetLife” shall mean MetLife, Inc., a Delaware corporation, and its Subsidiaries,
individually and collectively.
(cc) “NOLs” shall have the meaning set forth in the recitals to this Rights Agreement.
(dd) “Number of Class A Adjustment Shares” shall have the meaning set forth in Section
11(b)(1) hereof.
5
(ee) “Number of Class B Adjustment Shares” shall have the meaning set forth in Section
11(b)(2) hereof.
(ff) “Ownership Statement” shall have the meaning set forth in Section 3(a) hereof.
(gg) “Original Section 382 Rights Agreement” shall have the meaning set forth in the recitals
to this Rights Agreement.
(hh) “Percentage Stock Ownership” shall mean the percentage stock ownership interest as
determined in accordance with Treasury Regulation § 1.382-2T(g), (h), (j) and (k).
(ii) “Person” shall mean any individual, firm, corporation, partnership, trust association,
limited liability company, limited liability partnership, or other entity, or any group of Persons
making a “coordinated acquisition” of shares or otherwise treated as an entity within the meaning
of Treasury Regulation § 1.382-3(a)(1) or otherwise and shall include any successor (by merger or
otherwise) of any such entity.
(jj) “Preferred Stock” shall mean Series A Preferred Stock and the Series B Preferred Stock,
collectively, or severally as the context may require.
(kk) “Prior Written Approval of the Company” shall mean prior express written consent of the
Company to the actions in question, executed on behalf of the Company by a duly authorized officer
of the Company following express approval by action of at least a majority of the members of the
Board of Directors then in office.
(ll) “Purchase Price” shall have the meaning set forth in Section 4 hereof.
(mm) “Recapitalization” shall have the meaning set forth in the Recapitalization and
Distribution Agreement.
(nn) “Recapitalization and Distribution Agreement” shall mean that Recapitalization and
Distribution Agreement between the Company and MetLife dated as of June 1, 2008.
(oo) “Record Date” shall have the meaning set forth in the Recitals of this Rights Agreement.
(pp) “Record Time” shall mean the Close of Business on the Record Date.
(qq) “Redemption Price” shall have the meaning set forth in Section 23(a) hereof.
(rr) “Registrar” shall have the meaning set forth in Section 4(a) hereof.
(ss) “Restriction Release Date” shall mean the earlier of (x) the date that is 36 months and
one day following the effectiveness of the Recapitalization or (y) such other date
6
as the Board of Directors may determine pursuant to the Articles of Incorporation, as the same
may be amended from time to time, including without limitation in connection with the
Recapitalization and/or the Conversion (if any).
(tt) “Right” shall have the meaning set forth in the Recitals of this Rights Agreement.
(uu) “Right Certificates” shall mean Class A Right Certificates and Class B Right Certificates
collectively, or severally as the context may require.
(vv) “Rights Agent” shall have the meaning set forth in the Preamble of this Rights Agreement.
(ww) “Section 11(b) Event” shall have the meaning set forth in Section 11(b) hereof.
(xx) “Section 382” shall mean Section 382 of the Code, or any comparable successor provision.
(yy) “Securities Act” shall mean the Securities Act of 1933, as amended.
(zz) “Security” shall have the meaning set forth in Section 11(f) hereof.
(aaa) “Series A Preferred Stock” shall mean the Series A-1 Junior Participating Preferred
Stock, par value $0.01 per share, of the Company.
(bbb) “Series B Preferred Stock” shall mean the Series B-1 Junior Participating Preferred
Stock, par value $0.01 per share, of the Company.
(ccc) “Split-Off” shall have the meaning set forth in the Recapitalization and Distribution
Agreement.
(ddd) “Stock Acquisition Date” shall mean the earlier of (i) the first date of public
announcement by a Person that an Acquiring Person has become an Acquiring Person, or (ii) the date
on which the Company first has notice, direct or indirect, or otherwise determines that a Person
has become an Acquiring Person.
(eee) “Subsidiary” shall mean, with respect to any Person, any other Person of which
securities or other ownership interests having ordinary Voting Power, in the absence of
contingencies, to elect a majority of the board of directors (or other persons performing similar
functions) of such other Person are at the time directly or indirectly owned by such Person or one
or more of such Person’s Subsidiaries, except that “Subsidiary” when used with reference to the
Company shall mean any Person of which either a majority of the Voting Power of the voting equity
securities or a majority of the equity interests is owned, directly or indirectly, by the Company.
(fff) “Tax Benefits” shall means the net operating loss carryovers, capital loss carryovers,
general business credit carryovers, alternative minimum tax credit carryovers
7
and foreign tax credit carryovers, as well as any loss or deduction attributable to a “net
unrealized built-in loss” within the meaning of Section 382, of the Company or any of its
Subsidiaries.
(ggg) “Trading Day” shall have the meaning set forth in Section 11(f)(i) hereof.
(hhh) “Voting Power” of a Person shall mean the voting power of all securities of a Person
then outstanding generally entitled to vote for the election of directors on matters submitted to
the shareholders of the Person (or where appropriate) for the election of persons performing
similar functions), without taking into account special voting rights.
Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent
to act as agent for the Company in accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Company may from time to time appoint such co-rights
agents as it may deem necessary or desirable upon ten (10) days’ prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and in no event shall be liable for, the
acts or omissions of any such co-rights agent.
Section 3. Issue of Right Certificates.
(a) Until the earlier of (i) the Close of Business on the tenth Business Day after the Stock
Acquisition Date or (ii) the Close of Business on the tenth Business Day (or such later date as may
be determined by action of the Board of Directors but in no event later than the tenth Business Day
after such time as any Person becomes an Acquiring Person) after the date that a tender or exchange
offer to acquire Corporation Securities by any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan or compensation arrangement of the Company or of any
Subsidiary of the Company, or any entity holding securities of the Company to the extent organized,
appointed or established by the Company or any Subsidiary of the Company for or pursuant to the
terms of any such employee benefit plan or compensation arrangement) is first published or sent or
given within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange
Act, without the Prior Written Approval of the Company, which tender or exchange offer to acquire
Corporation Securities would result in any Person becoming an Acquiring Person (including any such
date which is after the date of this Rights Agreement and prior to the issuance of the Rights) (the
earlier of the dates referred to in clauses (i) or (ii), the “Distribution Date”) without giving
effect to restrictions set forth in the Articles of Incorporation, (x) the Rights will be evidenced
(subject to the provisions of paragraph (b) of this Section 3) by the certificates for the Common
Stock registered in the names of the holders of the Common Stock, or by a current ownership
statement issued with respect to uncertificated shares of Common Stock in lieu of such a
certificate (an “Ownership Statement”) (which certificates for Common Stock or Ownership Statements
shall be deemed also to be Right Certificates) and not by separate Right Certificates, as more
fully set forth below, and (y) the Rights (and the right to receive certificates therefor) will be
transferable only in connection with the transfer of the underlying shares of Common Stock, as more
fully set forth below. As soon as practicable after the Company has (A) notified the Rights Agent
in writing of the occurrence of the Distribution Date, (B) provided the Rights Agent with written
instructions, and (C) provided or caused the Rights Agent to be provided with all other
8
information (including mailing information) which the Rights Agent may reasonably request, the
Company shall prepare and execute, and the Rights Agent shall countersign and send, by first-class,
insured, postage prepaid mail, (X) to each record holder of the Class A Common Stock as of the
Close of Business on the Distribution Date, at the address of such holder shown on the records of
the Company, a right certificate, in substantially the form of Exhibit B-1 hereto (the “Class A
Right Certificate”), evidencing one Class A Right for each share of Class A Common Stock so held,
subject to adjustment as provided herein, and (Y) to each record holder of the Class B Common Stock
as of the Close of Business on the Distribution Date, at the address of such holder shown on the
records of the Company, a right certificate, in substantially the form of Exhibit B-2 hereto (the
“Class B Right Certificate”), evidencing one Class B Right for each share of Class B Common Stock
so held, subject to adjustment as provided herein. As of and after the Distribution Date, the
Rights will be evidenced solely by such Right Certificates. Until the Rights Agent receives
written notice of the Distribution Date from the Company, the Rights Agent may presume conclusively
for all purposes that the Distribution Date has not occurred.
(b) In connection with the adoption of the Original Section 382 Rights Agreement, the Company
sent a copy of a Summary of Rights to Purchase Preferred Stock by first-class, postage prepaid
mail, to each record holder of the Common Stock as of the Record Time, at the address of such
holder shown on the records of the Company. With respect to certificates or Ownership Statements
for the Common Stock outstanding as of the Record Date, until the Distribution Date (or the earlier
redemption, expiration or termination of the Rights), the Rights will be evidenced by such
certificates for the Common Stock registered in the names of the holders of the Common Stock and
the registered holders of the Common Stock shall also be registered holders of the associated
Rights (Class A Rights in the case of Class A Common Stock and Class B Rights in the case of Class
B Common Stock). Until the Distribution Date (or the earlier redemption, expiration or termination
of the Rights), the surrender for transfer of any of the certificates for the Common Stock
outstanding in respect of which applicable Rights have been issued shall also constitute the
transfer of the applicable Rights associated with the Common Stock represented by such certificate.
(c) Certificates or Ownership Statements for the Common Stock issued after the Record Date but
prior to the earlier of the Distribution Date or the redemption, expiration or termination of the
Rights shall be deemed also to be certificates for Rights (Class A Rights in the case of Class A
Common Stock and Class B Rights in the case of Class B Common Stock) and shall have impressed,
printed or written on, or otherwise affixed to them a legend in substantially the following form:
This [certificate] [statement] also evidences and entitles the holder hereof to
certain Rights as set forth in a Section 382 Rights Agreement between Reinsurance
Group of America, Incorporated (the “Company”) and Mellon Investor Services LLC (or
any successor thereto), as Rights Agent, as it may from time to time be supplemented
or amended (the “Rights Agreement”), the terms of which are incorporated herein by
reference and a copy of which is on file at the principal executive offices of the
Company. Under certain circumstances, as set forth in the Rights Agreement, such
Rights may expire or may be redeemed, exchanged or be evidenced by separate
certificates and no longer be evidenced by
9
this [certificate] [statement]. The Company will mail to the holder of this
[certificate] [statement] a copy of the Rights Agreement without charge promptly
after receipt of a written request therefor. Under certain circumstances, Rights
issued to or held by Acquiring Persons (as defined in the Rights Agreement) and any
subsequent holder of such Rights may become null and void.
With respect to such certificates or Ownership Statements containing the foregoing legend, until
the Distribution Date (or the earlier redemption, expiration or termination of the Rights), the
Rights associated with the Common Stock represented by such certificates or Ownership Statements
shall be evidenced by such certificates or Ownership Statements alone, and the surrender for
transfer of any of such certificate or the transfer of any shares of Common Stock represented by
such Ownership Statements, except as otherwise provided herein, shall also constitute the transfer
of the Rights associated with the Common Stock represented by such certificates or Ownership
Statements.
In the event that the Company purchases or acquires any Common Stock after the Record Date but
prior to the Distribution Date, any Rights associated with such Common Stock shall be deemed
canceled and retired so that the Company shall not be entitled to exercise any Rights associated
with shares of Common Stock which are no longer outstanding.
Section 4. Form of Right Certificates.
(a) The Class A Right Certificates and the Class B Right Certificates (and the forms of
election to purchase shares and of assignment to be printed on the reverse thereof) shall be in
substantially the same form as Exhibit B-1 and Exhibit B-2 hereto, respectively, and may have such
marks of identification or designation and such legends, summaries or endorsements printed thereon
as the Company may deem appropriate (but which do not affect the rights, duties, responsibilities
or obligations of the Rights Agent as set forth in this Rights Agreement) and as are not
inconsistent with the provisions of this Rights Agreement, or as may be required to comply with any
applicable law, rule or regulation or with any rule or regulation of any stock exchange on which
the Rights may from time to time be listed, or to conform to customary usage. Subject to the
provisions of Section 11 and Section 22 hereof, the Right Certificates, whenever issued, shall be
dated as of the Record Date, and on their face shall entitle the holders thereof to purchase such
number of one one-hundredths of a share of the applicable series of Preferred Stock as shall be set
forth therein at the price per one one-hundredth of a share as set forth therein (the “Purchase
Price”), but the number and identity of such shares and the applicable Purchase Price shall be and
remain subject to adjustment as provided herein.
(b) Any Right Certificate issued pursuant hereto that represents Rights beneficially owned by
(i) an Acquiring Person, (ii) a transferee of an Acquiring Person which becomes a transferee after
the Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person which becomes a
transferee prior to or concurrently with the Acquiring Person becoming such and which receives such
Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing plan, agreement, arrangement or understanding regarding either
the transferred Rights, shares of Company Common Stock or the Company or (B) a transfer which a
majority of the Board of Directors has determined to be part of a plan, agreement, arrangement or
understanding which has as a primary
10
purpose or effect the avoidance of Section 7(e), and any Right Certificate issued pursuant to
Section 6 hereof, Section 11 hereof or Section 22 hereof upon transfer, exchange, replacement or
adjustment of any other Right Certificate referred to in this sentence, shall contain (to the
extent the Rights Agent has notice thereof and to the extent feasible) the following legend, or a
legend substantially to the following effect:
The Rights represented by this Right Certificate are or were beneficially owned by a
Person who was or became an Acquiring Person. Accordingly, this Right Certificate
and the Rights represented hereby are void in the circumstances specified in Section
7(e) of the Rights Agreement.
The failure to print the foregoing legend on any such Right Certificate or any defect therein shall
not affect in any manner whatsoever the application or interpretation of the provisions of
Section 7(e) hereof.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the Company by its Chairman of the
Board, Chief Executive Officer, President, Chief Financial Officer or any Executive Vice President,
either manually or by facsimile signature, and shall have affixed thereto the Company’s seal or a
facsimile thereof which shall be attested by the Secretary or any Assistant Secretary of the
Company, either manually or by facsimile signature. The Right Certificates shall manually be
countersigned by the Rights Agent or the registrar or co-registrar for the Common Stock (the
“Registrar”) and shall not be valid for any purpose unless so countersigned. In case any officer
of the Company whose manual or facsimile signature is affixed to the Right Certificates shall cease
to be such officer of the Company before countersignature by the Rights Agent or the Registrar and
issuance and delivery by the Company, such Right Certificates, nevertheless, may be countersigned
by the Rights Agent or the Registrar, issued and delivered with the same force and effect as though
the person who signed such Right Certificates had not ceased to be such officer of the Company.
Any Right Certificate may be signed on behalf of the Company by any person who, at the actual date
of the execution of such Right Certificate, shall be a proper officer of the Company to sign such
Right Certificate, although at the date of the execution of this Rights Agreement any such person
was not such an officer.
(b) Following the Distribution Date and receipt by the Rights Agent of (i) written notice of
the Distribution Date pursuant to Section 3(a) hereof, and (ii) all information reasonably
requested by the Rights Agent pursuant to Section 3(a) hereof, the Rights Agent will keep or cause
to be kept, at its shareholder services office or such other office designated for such purposes,
books for registration and transfer of the Right Certificates issued hereunder. Such books shall
show the names and addresses of the respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates, the certificate number of each of
the Right Certificates and the date of each of the Right Certificates.
11
Section 6. | Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. |
(a) Subject to the provisions of Sections 4(b), 7(e), 11 and 14 hereof, at any time after the
Close of Business on the Distribution Date, and at or prior to the Close of Business on the
Expiration Date (as such term is defined in Section 7(a) hereof), any Right Certificate or Right
Certificates may be transferred, split up, combined or exchanged for another Right Certificate or
Right Certificates, entitling the registered holder to purchase a like number of shares of Series A
Preferred Stock in the case of Class A Right Certificates, or of Series B Preferred Stock in the
case of Class B Right Certificates (or, in either such case, other securities, cash or other
assets, as the case may be), as the Right Certificate or Right Certificates surrendered then
entitled such holder to purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate shall make such request in writing delivered to the Rights Agent,
and shall surrender the Right Certificate or Right Certificates to be transferred, split up,
combined or exchanged, with the forms of assignment and certificate contained therein duly
executed, at the shareholder services office of the Rights Agent or such office designated for such
purpose. The Right Certificates are transferable only on the registry books of the Rights Agent.
Neither the Rights Agent nor the Company shall be obligated to take any action whatsoever with
respect to the transfer of any such surrendered Right Certificate until the registered holder shall
have properly completed and signed the certificate contained in the form of assignment on the
reverse side of such Right Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) as the Company or the Rights Agent
shall reasonably request and (iii) paid a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer, split up, combination or exchange of Right
Certificates. Thereupon, the Rights Agent shall countersign and deliver to the Person entitled
thereto an applicable Right Certificate or Right Certificates, as the case may be, as so requested.
The Company may require payment from the Rights holder of a sum sufficient to cover any such tax
or governmental charge that may be imposed in connection with any transfer, split up, combination
or exchange of Right Certificates. The Rights Agent shall have no duty or obligation to take any
action under any Section of this Rights Agreement which requires the payment by a Rights holder of
applicable taxes and/or governmental charges unless and until the Rights Agent is satisfied that
all such taxes or charges have been paid.
(b) Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to
them of the loss, theft, destruction or mutilation of a Right Certificate, and, in case of loss,
theft or destruction, of indemnity or security satisfactory to them, and reimbursement to the
Company and the Rights Agent of all reasonable expenses incidental thereto, and upon surrender to
the Rights Agent and cancellation of the Right Certificate if mutilated, the Company will make and
deliver a new Right Certificate of like tenor to the Rights Agent for countersignature and delivery
to the registered owner in lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) The registered holder of any Right Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase and the certificate
set forth on the reverse side thereof properly completed and duly executed, to the Rights Agent at
the shareholder services office of the Rights Agent or such office designated
12
for such purpose, together with payment of the Purchase Price for each one one-hundredth of a
share of the applicable series of Preferred Stock as to which the Rights are exercised, at or prior
to the Close of Business on the Expiration Date. The “Expiration Date”, as used in this Rights
Agreement, shall be the earliest of (i) the Final Expiration Date (as defined below), (ii) the time
at which the Rights are redeemed or this Rights Agreement terminates as provided in Section 23
hereof, or (iii) the time at which the Rights are exchanged as provided in Section 24 hereof. The
“Final Expiration Date,” as used in this Rights Agreement, shall be the Restriction Release Date.
(b) The Purchase Price shall initially be (i) with respect to each Class A Right, $200 for
each one one-hundredth of a share of Series A Preferred Stock, and (ii) with respect to each Class
B Right, $200 for each one one-hundredth of a share of Series B Preferred Stock, and, in each case,
shall be subject to adjustment from time to time as provided in Section 11 hereof and shall be
payable in lawful money of the United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate, with the form of election to purchase and the
certificate properly completed and duly executed, accompanied by payment of the Purchase Price for
each one one-hundredth of a share of the applicable series of Preferred Stock to be purchased and
an amount equal to any applicable tax or governmental charge required to be paid by the holder of
the Rights pursuant hereto in accordance with Section 9 hereof by certified check, bank draft or
money order payable to the order of the Company or the Rights Agent, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly (i) either (A) requisition from any transfer
agent of the shares of such Preferred Stock (or make available, if the Rights Agent is the transfer
agent) certificates for the number of shares of the applicable series of Preferred Stock to be
purchased and the Company hereby irrevocably authorizes any such transfer agent to comply with all
such requests, or (B) if the Company, in its sole discretion, shall have elected to deposit the
shares of such series of Preferred Stock issuable upon exercise of such Rights hereunder into a
depositary, requisition from the depositary agent depositary receipts representing such number of
one one-hundredths of a share of such series of Preferred Stock as are to be purchased (in which
case certificates for the shares of such series of Preferred Stock represented by such receipts
shall be deposited by the transfer agent with the depositary agent) and the Company hereby
authorizes and directs such depositary agent to comply with all such requests, (ii) promptly after
receipt of such certificates or depositary receipts cause the same to be delivered to or upon the
order of the registered holder of such Right Certificate, registered in such name or names as may
be designated by such holder, (iii) when appropriate, requisition from the Company the amount of
cash to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof,
(iv) after receipt of any such cash, promptly deliver such cash to or upon the order of the
registered holder of such Right Certificate, (v) when appropriate, requisition from the Company the
amount of cash or securities issuable upon exercise of a Right pursuant to the adjustment
provisions of Section 11 or the exchange provisions of Section 24, and (vi) after receipt of any
such cash or securities, promptly deliver such cash or securities to or upon the order of the
registered holder of such Right Certificate, of any such cash or securities.
(d) In case the registered holder of any Right Certificate shall exercise less than all the
Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be prepared, executed and delivered by the Rights Agent
13
to the registered holder of such Right Certificate or to such holder’s duly authorized
assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Rights Agreement to the contrary, upon the first
occurrence of a Section 11(b) Event, any Rights beneficially owned by (i) an Acquiring Person, (ii)
a transferee of an Acquiring Person which becomes a transferee after the Acquiring Person becomes
such, or (iii) a transferee of an Acquiring Person which becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and which receives such Rights pursuant to
either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom such Acquiring Person has any
continuing plan, agreement, arrangement or understanding regarding the transferred Rights, shares
of Corporation Securities or the Company or (B) a transfer which a majority of the Board of
Directors has determined to be part of a plan, agreement, arrangement or understanding which has as
a primary purpose or effect the avoidance of this Section 7(e), and subsequent transferees of such
Persons, shall be null and void without any further action, and no holder of such Rights shall have
any rights whatsoever with respect to such Rights or any Right Certificate which formerly evidenced
such Rights, and neither the Company nor the Rights Agent shall have any obligation whatsoever with
respect to such Rights or any Right Certificate, whether under any provision of this Rights
Agreement or otherwise. The Company shall use all reasonable efforts to notify the Rights Agent
when this Section 7(e) applies and to ensure that the provisions of this Section 7(e) and Section
4(b) are complied with, but neither the Company nor the Rights Agent shall have any liability to
any holder of Rights or any other Person as a result of its failure to make any determination under
this Section 7(e) or Section 4(b) with respect to an Acquiring Person or its transferees hereunder.
(f) Notwithstanding anything in this Rights Agreement to the contrary, neither the Rights
Agent nor the Company shall be obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth in this Section 7 unless the
certificate contained in the appropriate form of election to purchase set forth on the reverse side
of the Right Certificate surrendered for such exercise shall have been properly completed and duly
executed by the registered holder thereof and the Company or the Rights Agent shall have been
provided with such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) as the Company or the Rights Agent shall reasonably request.
Section 8. Cancellation and Destruction of Right Certificates. All Right Certificates
surrendered for the purpose of exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or to any of its agents, be delivered to the Rights Agent for
cancellation or in canceled form, or, if surrendered to the Rights Agent, shall be canceled by it,
and no Right Certificates shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Rights Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The
Rights Agent shall deliver all canceled Right Certificates to the Company, or shall, at the written
request of the Company, destroy such canceled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
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Section 9. Reservation and Availability of Shares of Preferred Stock.
(a) Subject to the Company’s rights under Section 11(c), the Company covenants and agrees that
it will cause to be reserved and kept available out of its authorized and unissued shares of
Preferred Stock or its authorized and issued shares of Preferred Stock held in its treasury, the
number of shares of each series of Preferred Stock that will be sufficient to permit the exercise
in full of all outstanding Rights and, after the occurrence of a Section 11(b) Event, shall so
reserve and keep available a sufficient number of shares of Preferred Stock, Common Stock and/or
other securities which may be required to permit the exercise in full of the Rights pursuant to
this Rights Agreement.
(b) If the Company determines that registration under the Securities Act is required, then the
Company shall use its reasonable best efforts to (i) file, as soon as practicable following the
first occurrence of an event which would establish the Distribution Date, a registration statement
under the Securities Act, with respect to the securities purchasable upon exercise of the Rights on
an appropriate form, (ii) cause such registration statement to become effective as soon as
practicable after such filing, and (iii) cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Securities Act) until the
Expiration Date. The Company will also take such action as may be appropriate under the “blue sky
laws” of the various states. The Company may temporarily suspend, for a period of time not to
exceed ninety (90) days after the date set forth in clause (i) of the first sentence of this
Section 9(b), the exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been temporarily suspended,
as well as a public announcement at such time as the suspension is no longer in effect, in each
case with simultaneous written notice to the Rights Agent. In addition, if the Company determines
that a registration statement should be filed under the Securities Act or any securities laws
following the Distribution Date, the Company may temporarily suspend the exercisability of the
Rights in each relevant jurisdiction until such time as a registration statement has been declared
effective and, upon any such suspension, the Company shall issue a public announcement stating that
the exercisability of the Rights has been temporarily suspended, as well as a public announcement
at such time as the suspension is no longer in effect, in each case with simultaneous written
notice to the Rights Agent. Notwithstanding any provision of this Agreement to the contrary, the
Rights shall not be exercisable in any jurisdiction if the requisite qualification in such
jurisdiction shall not have been obtained or be obtainable or the exercise thereof shall not be
permitted under applicable law or a registration statement shall not have been declared effective.
(c) The Company covenants and agrees that it will take all such action as may be necessary to
ensure that all shares of Preferred Stock and/or other securities delivered upon exercise of Rights
shall, at the time of delivery of the certificates therefor (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid and nonassessable shares or
securities.
(d) The Company further covenants and agrees that it will pay when due and payable any and all
federal and state transfer taxes and governmental charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any shares of
15
Preferred Stock and/or other securities upon the exercise of Rights. The Company shall not,
however, be required to pay any such tax or charge which may be payable in respect of any transfer
involved in the transfer or delivery of Right Certificates or the issuance or delivery of
certificates or depositary receipts for Preferred Stock and/or other securities in a name other
than that of the registered holder of the Right Certificate evidencing Rights surrendered for
exercise, nor shall the Company be required to issue or deliver any certificates or depositary
receipts for shares of Preferred Stock and/or other securities upon the exercise of any Rights
until any such tax or charge shall have been paid (any such tax or charge being payable by the
holder of such Right Certificate at the time of surrender) or until it has been established to the
Company’s and the Rights Agent’s satisfaction that no such tax or charge is due.
Section 10. Preferred Stock Record Date. Each Person (other than the Company) in
whose name any certificate for shares of Preferred Stock (or other securities) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder of record of the
Preferred Stock (or other securities) represented thereby on, and such certificate shall be dated,
the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment
of the Purchase Price (and any applicable taxes or charges) was made; provided,
however, that if the date of such surrender and payment is a date upon which the Preferred
Stock (or other securities) transfer books of the Company are closed, such Person shall be deemed
to have become the record holder of such shares on, and such certificate shall be dated, the next
succeeding Business Day on which the Preferred Stock (or other securities) transfer books of the
Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right
Certificate shall not be entitled to any rights of a shareholder of the Company with respect to
shares for which the Rights shall be exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions or to exercise any preemptive rights, and shall not be
entitled to receive any notice of any proceedings of the Company, except as provided herein.
Section 11. Adjustment to Purchase Price, Number of Shares or Number of Rights. The
Purchase Price, the number and identity of shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this Section 11.
(a) In the event the Company shall at any time after the date of this Rights Agreement
(i) declare a dividend on either series of Preferred Stock payable in shares of Preferred Stock,
(ii) subdivide either series of the outstanding Preferred Stock, (iii) combine the outstanding
Preferred Stock of either series into a smaller number of shares or (iv) issue any shares of its
capital stock in a reclassification of either series of Preferred Stock (including any such
reclassification in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), except as otherwise provided in this Section 11, the
applicable Purchase Price in effect at the time of the record date for such dividend or the time of
the effective date of such subdivision, combination or reclassification, and the number and kind of
shares of capital stock, including Preferred Stock, issuable upon exercise of the applicable class
of Right, shall be proportionately adjusted so that the holder of such Right exercised after such
time, upon payment of the aggregate consideration such holder would have had to pay to exercise
such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares
of capital stock, including Preferred Stock, which, if such Right had been exercised immediately
prior to such date and at a time when the Preferred Stock transfer books of the
16
Company were open, such holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or reclassification.
(b) In the event any Person becomes an Acquiring Person (“Section 11(b) Event”), then proper
provision shall be made so that (1) each holder of a Class A Right, subject to Section 7(e) and
Section 24 hereof and except as provided below, shall after the later of the occurrence of such
event and the effective date of an appropriate registration statement pursuant to Section 9 hereof,
have a right to receive, upon exercise thereof at the then current Purchase Price for a Class A
Rights, multiplied by the then number of one one-hundredths of a share of Series A Preferred Stock
for which a Class A Right is then exercisable, in accordance with the terms of this Rights
Agreement, in lieu of shares of Series A Preferred Stock, such number of shares of Class A Common
Stock of the Company as shall equal the result obtained by (y) multiplying the then current
Purchase Price for a Class A Right by the then number of one one-hundredths of a share of Series A
Preferred Stock for which a Right is then exercisable and dividing that product by (z) 50% of the
current market price per one share of Class A Common Stock (determined pursuant to Section 11(f)
hereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being
referred to as the “Number of Class A Adjustment Shares”), and (2) each holder of a Class B Right,
subject to Section 7(e) and Section 24 hereof and except as provided below, shall after the later
of the occurrence of such event and the effective date of an appropriate registration statement
pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at the then current
Purchase Price for a Class B Right, multiplied by the then number of one one-hundredths of a share
of Series B Preferred Stock for which a Class B Right is then exercisable, in accordance with the
terms of this Rights Agreement, in lieu of shares of Series B Preferred Stock, such number of
shares of Class B Common Stock of the Company as shall equal the result obtained by (y) multiplying
the then current Purchase Price for a Class B Right by the then number of one one-hundredths of a
share of Series B Preferred Stock for which a Right is then exercisable and dividing that product
by (z) 50% of the current market price per one share of Class B Common Stock (determined pursuant
to Section 11(f) hereof on the date of the occurrence of the Section 11(b) Event) (such number of
shares being referred to as the “Number of Class B Adjustment Shares”). The Company shall give the
Rights Agent written notice of the identity of any Acquiring Person or any Affiliates or Associates
thereof, or any transferee of any of the foregoing, and the Rights Agent may rely on such notice in
carrying out its duties under this Agreement, and shall be deemed not to have any knowledge of the
identity of any such Acquiring Person or any Affiliates or Associates thereof, or any transferee of
any of the foregoing, unless and until it shall have received such notice.
(c) In the event that there shall not be sufficient treasury shares or authorized but unissued
shares of the applicable class of Common Stock to permit the exercise in full of the Rights in
accordance with the foregoing Section 11(b), and such Rights become so exercisable, notwithstanding
any other provision of this Rights Agreement, to the extent necessary and permitted by applicable
law and any agreements in effect on the date hereof to which the Company is a party, each Right
shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase
Price, multiplied by the then number of one one-hundredths of a share of Preferred Stock for which
a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of
shares, or units of shares, of (y) Class A Common Stock in the case of a Class A Right, or Class B
Common Stock in the case of a Class B Right, and (z) preferred stock (or other equity securities)
of the Company, including, but not
17
limited to the applicable series of Preferred Stock, equal in the aggregate to the Number of
Class A Adjustment Shares or the Number of Class B Adjustment Shares, as applicable, where the
Board of Directors shall have in good faith deemed such shares or units, other than the shares of
Common Stock, to have at least the same value and voting rights as the applicable class of Common
Stock (a “common stock equivalent”); provided, however, if there are unavailable
sufficient shares (or fractions of shares) of the applicable class of Common Stock and/or common
stock equivalents, then the Company shall take all such action as may be necessary to authorize
additional shares of the applicable class of Common Stock or common stock equivalents for issuance
upon exercise of the respective Rights, including the calling of a meeting of the shareholders of
Class A Common Stock in the case of the Class A Rights, and the shareholders of Class B Common
Stock in the case of the Class B Rights; and provided, further, that if the Company
is unable to cause sufficient shares of the applicable class of Common Stock and/or common stock
equivalents to be available for issuance upon exercise in full of such Rights, then the Company, to
the extent necessary and permitted by applicable law and any agreements or instruments in effect on
the date thereof to which it is a party, shall make provision to pay an amount in cash equal to
twice the applicable Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing
shares of such Common Stock and/or common stock equivalents. To the extent that the Company
determines that some action needs to be taken pursuant to this Section 11(c), the Board of
Directors by action of at least a majority of its members then in office may suspend the
exercisability of either class of Rights for a period of up to sixty (60) days following the date
on which the Section 11(b) Event shall have occurred, in order to decide the appropriate form of
distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the
event of any such suspension, the Company shall issue a public announcement stating that the
exercisability of such Rights has been temporarily suspended (with prompt written notice thereof to
the Rights Agent), as well as a public announcement and written notification to the Rights Agent at
such time as the suspension is no longer in effect. The Board of Directors may, but shall not be
required to, establish procedures to allocate the right to receive the applicable class of Common
Stock and common stock equivalents upon exercise of the Rights among holders of Rights, which such
allocation may be, but is not required to be, pro-rata.
(d) If the Company shall fix a record date for the issuance of rights or warrants to all
holders of either series of Preferred Stock entitling them (for a period expiring within 90
calendar days after such record date) to subscribe for or purchase the applicable series of
Preferred Stock (or securities having the same or more favorable rights, privileges and preferences
as the applicable series of Preferred Stock (“equivalent preferred stock”)) or securities
convertible into the applicable series of Preferred Stock or equivalent preferred stock, at a price
per share of the applicable series of Preferred Stock or per share of equivalent preferred stock or
having a conversion or exercise price per share, as the case may be, less than the current market
price (as determined pursuant to Section 11(f) hereof) per share of the applicable series of
Preferred Stock on such record date, the applicable Purchase Price to be in effect after such
record date shall be determined by multiplying the applicable Purchase Price in effect immediately
prior to such date by a fraction, the numerator of which shall be the number of shares of such
series of Preferred Stock outstanding on such record date plus the number of shares of such series
of Preferred Stock which the aggregate offering price of the total number of shares of such series
of Preferred Stock or equivalent preferred stock to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
18
at such current market price, and the denominator of which shall be the number of shares of
such series of Preferred Stock outstanding on such record date plus the number of additional shares
of such series of Preferred Stock and/or equivalent preferred stock to be offered for subscription
or purchase (or into which the convertible securities so to be offered are initially convertible).
In case such subscription price may be paid in a consideration, part or all of which shall be in a
form other than cash, the value of such consideration shall be as determined in good faith by a
majority of the Board of Directors, whose determination shall be described in a written statement
filed with the Rights Agent and shall be conclusive for all purposes. Shares of Preferred Stock
owned by or held for the account of the Company shall not be deemed outstanding for the purpose of
any such computation. Such adjustment shall be made successively whenever such a record date is
fixed; and in the event that such rights or warrants are not so issued, the applicable Purchase
Price shall be adjusted to be such Purchase Price as would then be in effect if such record date
had not been fixed.
(e) If the Company shall fix a record date for the making of a distribution to all holders of
either series of Preferred Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation) of
evidences of indebtedness, cash (other than a regular periodic cash dividend out of earnings or
retained earnings of the Company), assets (other than a dividend payable in Preferred Stock, but
including any dividend payable in stock other than Preferred Stock) or convertible securities,
subscription rights or warrants (excluding those referred to in Section 11(d) hereof), the
applicable Purchase Price to be in effect after such record date shall be determined by multiplying
the applicable Purchase Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the current market price for one share of the applicable series of
Preferred Stock (as determined pursuant to Section 11(f) hereof) on such record date less the fair
market value (as determined in good faith by a majority of the Board of Directors, whose
determination shall be described in a written statement filed with the Rights Agent and conclusive
for all purposes) of the portion of the assets or evidences of indebtedness so to be distributed or
of such convertible securities, subscription rights or warrants applicable to one share of
Preferred Stock of such series, and the denominator of which shall be such current market price for
one share of such series of Preferred Stock (as determined pursuant to Section 11(f) hereof). Such
adjustments shall be made successively whenever such a record date is fixed; and in the event that
such distribution is not so made, the applicable Purchase Price shall again be adjusted to be the
applicable Purchase Price which would then be in effect if such record date had not been fixed.
(f) (i) For the purpose of any computation hereunder, the “current market price” of any
security (a “Security”) for purposes of this Section 11(f)(i)) on any date shall be deemed to be
the average of the daily closing prices per share of such Security for the 30 consecutive Trading
Days (as hereinafter defined) immediately prior to but not including such date; provided,
however, that in the event that the current market price per share of such Security is
determined during a period following the announcement by the issuer of such Security of (A) a
dividend or distribution on such Security payable in shares of such Security or securities
convertible into shares of such Security or (B) any subdivision, combination or reclassification of
such Security, and prior to the expiration of 30 Trading Days after but not including the
ex-dividend date for such dividend or distribution or the record date for such subdivision,
combination or reclassification, then, and in each such case, the “current market price” shall be
19
appropriately adjusted to reflect the current market price per share equivalent of such
Security. The closing price for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed or admitted to trading
on the principal national securities exchange on which the Security is listed or admitted to
trading or, if the Security is not listed or admitted to trading on any national securities
exchange, the last sale price or, if such last sale price is not reported, the average of the high
bid and low asked prices in the over-the-counter market, as reported by the NASDAQ Stock Market or
such other system then in use, or, if on any such date the Security is not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a professional market
maker making a market in the Security selected by a majority of the Board of Directors. If on any
such date no market maker is making a market in the Security, the fair value of such Security on
such date as determined in good faith by a majority of the Board of Directors shall be used, which
determination shall be described in a written statement filed with the Rights Agent and shall be
conclusive for all purposes. The term “Trading Day” shall mean a day on which the principal
national securities exchange on which the Security is listed or admitted to trading is open for the
transaction of business, or if the Security is not listed or admitted to trading on any national
securities exchange, a Business Day. If the Security is not publicly held or not so listed or
traded, “current market price” shall mean the fair value as determined in good faith by a majority
of the Board of Directors, whose determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the “current market price” per share (or
one one-hundredth of a share) of either series of Preferred Stock shall be determined in the same
manner as set forth above for the Common Stock in clause (i) of this Section 11(f) (other than the
last sentence thereof). If the current market price per share (or one one-hundredth of a share) of
a series of Preferred Stock cannot be determined in the manner provided above or if such series of
Preferred Stock is not publicly held or listed or traded in a manner described in clause (i) of
this Section 11(f), the “current market price” per share of such series of Preferred Stock shall be
conclusively deemed to be an amount equal to 100 (as such number may be appropriately adjusted for
such events as stock splits, stock dividends and recapitalizations with respect to the Class A
Common Stock in the case of the Series A Preferred Stock, and the Class B Common Stock in the case
of the Series B Preferred Stock, occurring after the date of this Rights Agreement) multiplied by
the current market price per share of the Class A Common Stock in the case of the Series A
Preferred Stock, and the Class B Common Stock in the case of the Series B Preferred Stock, and the
“current market price” per one one-hundredth of a share of such series of Preferred Stock shall be
equal to the current market price per share of the applicable class of Common Stock (as
appropriately adjusted). If neither the applicable class of Common Stock nor the applicable series
of Preferred Stock is publicly held or so listed or traded, “current market price” per share shall
mean the fair value per share as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the Rights Agent and shall be conclusive
for all purposes.
20
(g) Anything herein to the contrary notwithstanding, no adjustment in the applicable Purchase
Price shall be required unless such adjustment would require an increase or decrease of at least 1%
in such Purchase Price; provided, however, that any adjustments which by reason of this Section
11(g) are not required to be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the
nearest one one-thousandth of a share, as the case may be. Notwithstanding the first sentence of
this Section 11(g), any adjustment required by this Section 11 shall be made no later than the
earlier of (i) three years from the date of the transaction which mandates such adjustment or (ii)
the Expiration Date.
(h) In the event that at any time, as a result of an adjustment made pursuant to Section 11(a)
or (b) hereof, the holder of any Right shall be entitled to receive upon exercise of such Right any
shares of capital stock of the Company other than shares of Series A Preferred Stock in the case of
a Class A Right, or shares of Series B Preferred Stock in the case of a Class B Right, thereafter
the number of such other shares so receivable upon exercise of any such Right shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares of the applicable series of Preferred Stock contained in
Xxxxxxx 00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x) and (o), and the provisions of
Sections 7, 9, 10 and 14 hereof with respect to the shares of such series of Preferred Stock shall
apply on like terms to any such other shares.
(i) All Rights originally issued by the Company subsequent to any adjustment made to the
applicable Purchase Price hereunder shall evidence the right to purchase, at the adjusted
applicable Purchase Price, the number of one one-hundredths of a share of the applicable series of
Preferred Stock or other capital stock of the Company purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment of the applicable Purchase Price.
(j) Unless the Company shall have exercised its election as provided in Section 11(k) hereof,
upon each adjustment of the applicable Purchase Price as a result of the calculations made in
Section 11(d) and (e) hereof, each Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the adjusted applicable Purchase
Price, that number of one one-hundredths of a share of the applicable series of Preferred Stock
(calculated to the nearest one one-thousandth of a share of such series of Preferred Stock)
obtained by (i) multiplying (A) the number of one one-hundredths of a share of the applicable
series of Preferred Stock covered by a Right immediately prior to the adjustment by (B) the
applicable Purchase Price in effect immediately prior to such adjustment of the Purchase Price for
such series and (ii) dividing the product so obtained by the applicable Purchase Price in effect
immediately after such adjustment of such Purchase Price.
(k) The Company may elect on or after the date of any adjustment of the applicable Purchase
Price to adjust the number of Rights, in substitution for any adjustment in the number of shares of
the applicable series of Preferred Stock purchasable upon the exercise of a Right. Each of the
Rights outstanding after such adjustment of the number of Rights shall be exercisable for the
number of one one-hundredths of a share of the applicable series of Preferred Stock for which such
Right was exercisable immediately prior to such adjustment. Each Right held of record prior to
such adjustment of the number of Rights shall become that number of
21
Rights (calculated to the nearest ten-thousandth) obtained by dividing the applicable Purchase
Price in effect immediately prior to adjustment of the applicable Purchase Price by the applicable
Purchase Price in effect immediately after such adjustment. The Company shall make a public
announcement of its election to adjust the number of Rights (with prompt written notice thereof to
the Rights Agent, along with a copy of such announcement), indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be made. This record date
may be the date on which the applicable Purchase Price is adjusted or any day thereafter, but, if
the applicable Right Certificates have been issued, shall be at least 10 days later than the date
of the public announcement. If the applicable Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(k), the Company shall, as promptly
as practicable, cause to be distributed to holders of record of the applicable Right Certificates
on such record date the applicable Right Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a result of such adjustment, or, at
the option of the Company, shall cause to be distributed to such holders of record in substitution
and replacement for the applicable Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such adjustment. Right
Certificates so to be distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and
shall be registered in the names of the holders of record of the applicable Right Certificates on
the record date specified in the public announcement.
(l) Irrespective of any adjustment or change in the applicable Purchase Price or the number of
shares of the applicable series of Preferred Stock issuable upon the exercise of the Rights, the
applicable Right Certificates theretofore and thereafter issued may continue to express the
applicable Purchase Price and the number of shares which were expressed in the initial Right
Certificates issued hereunder.
(m) Before taking any action that would cause an adjustment reducing the applicable Purchase
Price below the then par value, if any, of the shares of Common Stock or other securities and below
one one-hundredth of the then par value, if any, of the applicable series of Preferred Stock,
issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and legally issue fully
paid and nonassessable shares of such series of Preferred Stock, Common Stock or other securities
at such adjusted Purchase Price. If upon any exercise of the Rights, a holder is to receive a
combination of Class A Common Stock (in the case of the Class A Rights) or Class B Common Stock (in
the case of the Class B Rights) and common stock equivalents, a portion of the consideration paid
upon such exercise, equal to at least the then par value of a share of such Common Stock of the
Company, shall be allocated as the payment for each share of Common Stock of the Company so
received.
(n) In any case in which this Section 11 shall require that an adjustment in the applicable
Purchase Price be made effective as of a record date for a specified event, the Company may elect
(with prompt written notice of such election to the Rights Agent) to defer until the occurrence of
such event the issuing to the holder of any Right exercised after such record date the shares of
the applicable series of Preferred Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the shares of such
22
series of Preferred Stock and other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the applicable Purchase Price in effect prior to such
adjustment; provided, however, that the Company shall deliver to such holder a due
xxxx or other appropriate instrument evidencing such holder’s right to receive such additional
shares upon the occurrence of the event requiring such adjustment.
(o) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled
to make such reductions in the applicable Purchase Price, in addition to those adjustments
expressly required by this Section 11, as and to the extent that in their good faith judgment a
majority of the Board of Directors shall determine to be advisable in order that any (i)
consolidation or subdivision of either series of Preferred Stock, (ii) issuance wholly for cash of
either series of Preferred Stock at less than the then current market price, (iii) issuance wholly
for cash of Preferred Stock or securities which by their terms are convertible into or exchangeable
for either series of Preferred Stock, (iv) stock dividends or (v) issuance of rights, options or
warrants referred to hereinabove in this Section 11, hereafter made by the Company to the holders
of either series of Preferred Stock, shall not be taxable to such shareholders.
(p) Anything in this Rights Agreement to the contrary notwithstanding, in the event that at
any time after the date of this Rights Agreement and prior to the Distribution Date, the Company
shall (i) declare or pay any dividend on either class of the Common Stock payable in shares of such
class of Common Stock or (ii) effect a subdivision, combination or consolidation of either class of
Common Stock (by reclassification or otherwise than by payment of dividends in shares of such class
of Common Stock) into a greater or lesser number of shares of such class of Common Stock, then in
any such case, (A) (i) the number of one one-hundredths of a share of Series A Preferred Stock
purchasable after such event upon proper exercise of each Class A Right shall be determined by
multiplying the number of one one-hundredths of a share of Series A Preferred Stock so purchasable
immediately prior to such event by a fraction, the numerator of which is the number of shares of
Class A Common Stock outstanding immediately before such event and the denominator of which is the
number of shares of Class A Common Stock outstanding immediately after such event, and (ii) each
share of Class A Common Stock outstanding immediately after such event shall have issued with
respect to it that number of Class A Rights which each share of Class A Common Stock outstanding
immediately prior to such event had issued with respect to it, and (B) (i) the number of one
one-hundredths of a share of Series B Preferred Stock purchasable after such event upon proper
exercise of each Class B Right shall be determined by multiplying the number of one one-hundredths
of a share of Series B Preferred Stock so purchasable immediately prior to such event by a
fraction, the numerator of which is the number of shares of Class B Common Stock outstanding
immediately before such event and the denominator of which is the number of shares of Class B
Common Stock outstanding immediately after such event, and (ii) each share of Class B Common Stock
outstanding immediately after such event shall have issued with respect to it that number of Class
B Rights which each share of Class B Common Stock outstanding immediately prior to such event had
issued with respect to it. The adjustments provided for in this Section 11(p) shall be made
successively whenever such a dividend is declared or paid or such a subdivision, combination or
consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an
adjustment is made or any event affecting the Rights or their exercisability (including without
23
limitation an event which causes any Rights to become null and void) occurs, as provided in
Section 11 hereof, the Company shall (a) promptly prepare a certificate setting forth such
adjustment, and a brief statement of the facts and computations accounting for such adjustment or
describing such event, (b) promptly file with the Rights Agent and with each transfer agent for the
applicable series of Preferred Stock and the applicable class of Common Stock a copy of such
certificate and (c) include a brief summary thereof in a mailing to each holder of the applicable
Right Certificates in accordance with Section 26 hereof, or prior to the Distribution Date,
disclose a brief summary in a filing under the Exchange Act. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment or statement therein contained
and shall have no duty with respect to, and shall not be deemed to have knowledge of such
adjustment or event unless and until it shall have received such certificate. The Rights Agent
shall not be accountable with respect to, and shall incur no liability as a result of, the validity
or value (or the kind or amount) of any Rights, Common Stock, Preferred Stock or of any securities
or property which may at any time be issued or delivered upon the exercise of any Right or upon any
adjustment pursuant to Section 11 hereof, and it makes no representation with respect thereto.
Section 13. [Reserved].
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional Rights, the Company
shall pay or cause to be paid to the registered holders of the Right Certificates with regard to
which such fractional Rights would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right of the applicable class. For the purposes of
this Section 14(a), the current market value of a whole Right shall be the closing price of the
Rights of the applicable class for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price for any Trading Day shall
be the last sale price, regular way, or, in case no such sale takes place on such day, the average
of the closing bid and asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or admitted to trading
on the New York Stock Exchange or, if the applicable Rights are not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the principal national
securities exchange on which the Rights are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities exchange, the last sale price or, if such
last sale price is not reported, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the NASDAQ Stock Market or such other system then in use
or, if on any such date the Rights are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker making a market in the
Rights selected by a majority of the Board of Directors. If on any such date no such market maker
is making a market in the applicable Rights, the fair value of such Rights on such date as
determined in good faith by a majority of the Board of Directors shall be used, which determination
shall be described in a statement filed with the Rights Agent and conclusive for all purposes.
24
(b) The Company shall not be required to issue fractions of shares of either series of
Preferred Stock (other than fractions which are integral multiples of one one-hundredth of a share
of such series of Preferred Stock) upon exercise of the applicable Rights or to distribute
certificates which evidence fractional shares of either series of Preferred Stock (other than
fractions which are integral multiples of one one-hundredth of a share of such series of Preferred
Stock). Fractions of shares of either series of Preferred Stock in integral multiples of one
one-hundredth of a share of such series of Preferred Stock may, at the election of the Company, be
evidenced by depositary receipts, pursuant to an appropriate agreement between the Company and a
depositary selected by it, provided that such agreement shall provide that the holders of such
depositary receipts shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of the shares of such series of Preferred Stock represented by such
depositary receipts. In lieu of fractional shares of either series of Preferred Stock that are not
integral multiples of one one-hundredth of a share of such series of Preferred Stock, the Company
may pay to the registered holders of the applicable Right Certificates at the time such Right
Certificates are exercised as herein provided an amount in cash equal to the same fraction of the
current market value of one one-hundredths of a share of such series of Preferred Stock. For
purposes of this Section 14(b), the current market value of one one-hundredth of a share of either
series of Preferred Stock shall be one one-hundredth of the closing price of a share of such series
of Preferred Stock (as determined pursuant to Section 11(f)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise; provided however, that (A) if the closing price of
the shares of the Series A Preferred Stock cannot be so determined, the closing price of one share
of the Series A Preferred Stock for such Trading Day shall be conclusively deemed to be an amount
equal to the closing price of one share of Class A Common Stock for such Trading Day multiplied by
one hundred (as such number may be appropriately adjusted by the Board of Directors, in its
judgment, to reflect events such as stock splits, stock dividends, recapitalizations, or similar
transactions relating to the Class A Common Stock shares occurring after the date of this
Agreement), and (B) if the closing price of the shares of the Series B Preferred Stock cannot be so
determined, the closing price of one share of the Series B Preferred Stock for such Trading Day
shall be conclusively deemed to be an amount equal to the closing price of one share of Class B
Common Stock for such Trading Day multiplied by one hundred (as such number may be appropriately
adjusted by the Board of Directors, in its judgment, to reflect events such as stock splits, stock
dividends, recapitalizations, or similar transactions relating to the Class B Common Stock shares
occurring after the date of this Agreement).
(c) Following the occurrence of one of the transactions or events specified in Section 11
hereof giving rise to the right to receive common stock equivalents (other than Preferred Stock) or
other securities upon the exercise of a Right, the Company shall not be required to issue fractions
of shares or units of such common stock equivalents or other securities upon exercise of such
Rights or to distribute certificates which evidence fractional shares of such common stock
equivalents or other securities. In lieu of fractional shares or units of such common stock
equivalents or other securities, the Company may pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein provided an amount in cash equal to
the same fraction of the current market value of a share or unit of such common stock equivalent or
other securities. For purposes of this Section 14(c), the current market value shall be determined
in the manner set forth in Section 11(f) hereof for the Trading Day immediately prior to the date
of such exercise or exchange.
25
(d) Except as otherwise expressly provided in this Section 14, the holder of a Right by the
acceptance of the Right expressly waives such holder’s right to receive any fractional Rights or
any fractional share upon exercise of Rights.
(e) Whenever a payment for fractional Rights or fractional shares is to be made by the Rights
Agent upon exercise of a Right, the Company shall (i) promptly prepare and deliver to the Rights
Agent, a certificate setting forth in reasonable detail the facts related to such payments and the
prices and/or formulas utilized in calculating such payments, and (ii) provide sufficient monies to
the Rights Agent in the form of fully collected funds to make such payments. The Rights Agent
shall be fully protected in relying upon such a certificate and shall have no duty with respect to,
and shall not be deemed to have knowledge of any payment for fractional Rights or fractional shares
under any Section of this Agreement relating to the payment of fractional Rights or fractional
shares unless and until the Rights Agent shall have received such a certificate and sufficient
monies.
Section 15. Rights of Action. All rights of action in respect of this Rights
Agreement, except for rights of action given to the Rights Agent under Section 18 or Section 20
hereof, are vested in the respective registered holders of the Right Certificates (and, prior to
the Distribution Date, the registered holders of Common Stock); and any registered holder of any
Right Certificate (or, prior to the Distribution Date, of the Common Stock), without the consent of
the Rights Agent or of the holder of any other Right Certificate (or, prior to the Distribution
Date, of the Common Stock), may, in such holder’s own behalf and for such holder’s own benefit,
enforce, and may institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, such holder’s right to exercise the Rights evidenced by
such Right Certificate in the manner provided in such Right Certificate and in this Rights
Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right by accepting the same
consents and agrees with the Company and the Rights Agent and with every other holder of a Right
that:
(a) prior to the Distribution Date, the Rights will be transferable only in connection with
the transfer of Common Stock;
(b) after the Distribution Date, the Right Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the shareholder services office of the Rights Agent or
such office designated for such purpose, duly endorsed or accompanied by a proper instrument of
transfer and with the appropriate forms and certificates properly completed and fully executed;
(c) subject to Section 6 and Section 7(f), the Company and the Rights Agent may deem and treat
the Person in whose name the Right Certificate (or, prior to the Distribution Date, the associated
Common Stock certificate or Ownership Statement) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of ownership or writing on the Right
Certificate or the associated Common Stock certificate or Ownership Statement made by anyone other
than the Company or the Rights Agent) for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary; and
26
(d) notwithstanding anything in this Rights Agreement to the contrary, neither the Company nor
the Rights Agent shall have any liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this Rights Agreement by reason of any
preliminary or permanent injunction or other order, judgment, decree or ruling (whether
interlocutory or final) issued by a court of competent jurisdiction or by a governmental,
self-regulatory, regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation.
Section 17. Right Certificate Holder Not Deemed a Shareholder. No holder,
as such, of any Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of
Preferred Stock, Common Stock or any other securities of the
Company which may at any time be issuable on the exercise of
the Rights represented thereby, nor shall anything contained
herein or in any Right Certificate be construed to confer upon
the holder of any Right Certificate, as such, any of the
rights of a shareholder of the Company or any right to vote
for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as
provided in Section 25 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Right Certificate shall have been exercised
in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses, counsel fees and other disbursements incurred in the preparation, negotiation, delivery,
administration, execution and amendment of this Rights Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement,
cost or expense (including, without limitation, the reasonable fees and expenses of one legal
counsel), incurred without gross negligence, bad faith or willful misconduct on the part of the
Rights Agent (as finally determined by a court of competent jurisdiction), for any action taken,
suffered or omitted by the Rights Agent in connection with the acceptance, administration, exercise
and performance of its duties under this Rights Agreement, including the costs and expenses of
defending against and appealing any claim of liability arising therefrom, directly or indirectly
(except upon such a final determination of gross negligence, bad faith or willful misconduct). The
costs and expenses incurred by the Rights Agent in enforcing this right of indemnification shall be
paid by the Company (subject to reimbursement in connection with a final determination of the
Rights Agent’s gross negligence, bad faith or willful misconduct). The provisions of this Section
18 and Section 20 shall survive the termination of this Rights Agreement, the exercise, redemption
or expiration of the Rights and the resignation, removal or replacement of the Rights Agent.
(b) The Rights Agent shall be authorized and protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with its acceptance and
administration of this Rights Agreement and the exercise and performance of its
duties hereunder, in reliance upon any Right Certificate or certificate for Preferred Stock,
27
Common Stock or for other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement, or
other paper or document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice
of counsel as set forth in Section 20 hereof. The Rights Agent shall not be deemed to have
knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Rights
Agent shall be fully protected and shall incur no liability for failing to take any action in
connection herewith, unless and until it has received such notice in writing.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any Person into which the Rights Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any Person resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to the
shareholder services business of the Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Rights Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that such Person would
be eligible for appointment as a successor Rights Agent under the provisions of Section 21 hereof.
In case at the time such successor Rights Agent shall succeed to the agency created by this Rights
Agreement, any of the Right Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor Rights Agent and deliver
such Right Certificates so countersigned; and in case at that time any of the Right Certificates
shall not have been countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Right Certificates shall have the full force provided in
the Right Certificates and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and at such time any of
the Right Certificates shall have been countersigned but not delivered, the Rights Agent may adopt
the countersignature under its prior name and deliver Right Certificates so countersigned; and in
case at that time any of the Right Certificates shall not have been countersigned, the Rights Agent
may countersign such Right Certificates either in its prior name or in its changed name; and in all
such cases such Right Certificates shall have the full force provided in the Right Certificates and
in this Rights Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes to perform only the duties
and obligations expressly imposed by this Rights Agreement (and no implied duties or
obligations) upon the following terms and conditions, by all of which the Company and the
holders of Right Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company
or an employee of the Rights Agent), and the advice or opinion of such counsel, in the absence of
bad faith, shall be full and complete authorization and protection to the Rights Agent and the Rights Agent shall incur no liability for or in respect of any action
taken, suffered or omitted by it in the absence of gross negligence, bad faith or willful
misconduct and in accordance with such advice or opinion.
28
(b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent
shall deem it necessary or desirable that any fact or matter (including, without limitation, the
identity of any Acquiring Person and the determination of current market price) be proved or
established by the Company prior to taking, suffering or omitting to take any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a certificate signed by the Chairman of
the Board, Chief Executive Officer, President, Chief Financial Officer or any Executive Vice
President and by the Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and
complete authorization and protection to the Rights Agent, and the Rights Agent shall incur no
liability for or in respect of, any action taken, omitted or suffered by it in the absence of gross
negligence, bad faith or willful misconduct under the provisions of this Rights Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross negligence, bad faith or
willful misconduct (as finally determined by a court of competent jurisdiction). Anything to the
contrary notwithstanding, in no event shall the Rights Agent be liable for special, punitive,
indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not
limited to, lost profits), even if the Rights Agent has been advised of the likelihood of such loss
or damage. Any and all liability of the Rights Agent under this Rights Agreement will be limited to
the amount of fees paid by the Company to the Rights Agent pursuant to this Rights Agreement.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or
recitals contained in this Rights Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same, but all such statements and recitals
are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be liable for or be under any responsibility in respect of the
validity of this Rights Agreement or the execution and delivery hereof (except the due execution
and delivery hereof by the Rights Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature and delivery thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Rights Agreement or in any
Right Certificate; nor shall it be responsible for any change in the exercisability of the Rights
(including the Rights becoming null and void hereunder) or for any adjustment required under the
provisions of Section 11 or Section 24 hereof or responsible for the manner, method or amount of
any such adjustment or the ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced by Right Certificates after
receipt by the Rights Agent of a certificate furnished pursuant to Section 12 of this Rights
Agreement describing any such adjustment or change, upon which the Rights Agent may rely); nor
shall it by any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of either series of Preferred Stock or other securities
to be issued pursuant to this Rights Agreement or any Right
Certificate or as to whether any shares of either series of Preferred Stock or other
securities will, when issued, be validly authorized and issued, fully paid and nonassessable.
29
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the carrying out or performing by
the Rights Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from the Chairman of the Board, Chief Executive Officer,
President, Chief Financial Officer, any Executive Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the Company, and to apply to such officers
for advice or instructions in connection with its duties and such instructions shall be full
authorization and protection to the Rights Agent, and the Rights Agent shall not be liable for any
action taken, suffered or omitted to be taken by it in the absence of gross negligence, bad faith
or willful misconduct in accordance with instructions of any such officer or for any delay in
acting while waiting for those instructions. The Rights Agent shall be fully authorized and
protected in relying upon the most recent instructions received from any such officer.
(h) The Rights Agent and any stockholder, member, manager, director, affiliate, officer,
employee, agent or representative of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or otherwise act as fully
and freely as though it were not the Rights Agent under this Rights Agreement. Nothing herein
shall preclude the Rights Agent or any stockholder, member, manager, director, affiliate, officer,
employee, agent or representative from acting in any other capacity for the Company or for any
other Person.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself (through its directors, officers or employees) or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for
any act, omission, default, neglect or misconduct of any such attorneys or agents or for any loss
to the Company or any other Person resulting from any such act, default, neglect or misconduct,
provided that reasonable care was exercised in the selection and continued employment thereof (as
finally determined by a court of competent jurisdiction).
(j) No provision of this Rights Agreement shall require the Rights Agent to expend or risk its
own funds or otherwise incur any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if it believes that repayment of such funds or adequate
indemnification against such risk or liability is not assured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or
transfer, the certificate attached to the form of assignment or form of election to purchase, as
the case may be, has either not been completed or indicates an affirmative response to clause 1,
clause 2 and/or, in the case of the certificate attached to the form of election to
purchase, clause 3 thereof, the Rights Agent shall not take any further action with respect to
such requested exercise of transfer without first consulting with the Company.
30
(l) At any time and from time to time after the Distribution Date, upon the request of the
Company, the Rights Agent shall deliver to the Company a list, as of the most recent practicable
date (or as of such earlier date as may be specified by the Company), of the holders of record of
the Rights.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties
under this Rights Agreement upon 30 days’ notice in writing
mailed to the Company and to each transfer agent of the Common
Stock and Preferred Stock known to the Rights Agent by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent upon 30 days’
notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent
of the Common Stock and Preferred Stock by registered or
certified mail, and to the holders of the Right Certificates
by first-class mail or, prior to the Distribution Date,
through any filing made by the Company pursuant to the
Exchange Act. If the Rights Agent shall resign or be removed
or replaced, or shall otherwise become incapable of acting,
the Company shall appoint a successor to the Rights Agent. If
the Company shall fail to make such appointment within a
period of 30 days after such removal or replacement or after
it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or
by the holder of a Right Certificate (which holder shall, with
such notice, submit such holder’s Right Certificate for
inspection by the Company), then the registered holder of any
Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by
such a court, shall be (a) a Person organized and doing
business under the laws of the United States or of any state,
in good standing or (b) an affiliate of a Person described in
clause (a) of this sentence. After appointment, the successor
Rights Agent shall be vested with the same powers, rights,
duties, responsibilities and obligations as if it had been
originally named as Rights Agent without further act or deed;
but the predecessor Rights Agent shall deliver and transfer to
the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Company
shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Stock and
Preferred Stock, and mail a notice thereof in writing to the
registered holders of the Right Certificates or, prior to the
Distribution Date, through any filing made by the Company
pursuant to the Exchange Act. Failure to give any notice
provided for this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation
or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
(a) Notwithstanding any of the provisions of this Rights Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Right Certificates evidencing Rights in such
form as may be approved by a majority of the Board of Directors then in office to reflect any
adjustment or change in the applicable Purchase Price and the number or kind or class of shares of
stock or other securities or property purchasable under the Right Certificates made in accordance
with the provisions of this Rights Agreement.
31
(b) In addition, in connection with the issuance or sale of Common Stock following the
Distribution Date and prior to the redemption, exchange or expiration of the Rights, the Company
(i) shall with respect to shares of Common Stock so issued or sold pursuant to the exercise of
stock options or under any employee benefit plan or arrangement, or upon the exercise, conversion
or exchange of securities or other rights or options to acquire Common Stock in each case existing
prior to the Distribution Date, and (ii) may, in any other case, if deemed necessary or appropriate
by the Board of Directors, issue Right Certificates representing the appropriate number of Rights
in connection with such issuance or sale; provided, however, that (A) no such Right
Certificates shall be issued if, and to the extent that, the Company shall be advised by counsel
that such issuance would create a significant risk of material adverse tax consequences to the
Company or the Person to whom such Right Certificates would be issued, and (B) no Right Certificate
shall be issued if, and to the extent that, appropriate adjustment shall otherwise have been made
in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) A majority of the Board of Directors then in office may, at its option, at any time prior
to the earlier of (i) the Close of Business on the tenth Business Day following the Stock
Acquisition Date or (ii) the Close of Business on the Final Expiration Date, elect to redeem all
but not less than all of the then outstanding Rights at a redemption price of $0.001 per Right, as
appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring
after the date hereof (such redemption price being hereinafter referred to as the “Redemption
Price”). Notwithstanding anything contained in this Rights Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a Section 11(b) Event until such time as the
Company’s right of redemption hereunder has expired. The redemption of the Rights by the Board of
Directors may be made effective at such time, on such basis and with such conditions as the Board
of Directors in its sole discretion may establish.
(b) Immediately upon the action of a majority of the Board of Directors then in office
electing to redeem the Rights, evidence of which shall be promptly filed with the Rights Agent, or,
when appropriate, immediately upon the time or satisfaction of such conditions as the Board of
Directors may have established, and without any further action and without any notice, the right to
exercise the Rights will terminate and the only right thereafter of the holders of Rights shall be
to receive the Redemption Price. The Company shall promptly give public disclosure of any such
redemption (with prompt written notice thereof to the Rights Agent); provided,
however, that the failure to give, or any defect in, any such disclosure shall not affect
the legality or validity of such redemption. Within ten days after the action of the Board of
Directors ordering the redemption of the Rights, the Company shall give notice of such
redemption to the Rights Agent and to the holders of the then outstanding Rights by mailing
such notice to all such holders at their last addresses as they appear upon the registry books of
the Rights Agent or, prior to the Distribution Date, on the registry books of the Transfer Agent
for the Common Stock. Any notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be made. Amounts payable shall be
rounded down to the nearest one cent.
32
(c) Neither the Company nor any of its Affiliates or Associates may redeem, acquire or
purchase for value any Rights at any time in any manner other than that specifically set forth in
this Section 23 or in Section 24 hereof and other than in connection with the purchase of Common
Stock prior to the Distribution Date.
(d) Notwithstanding any of the provisions of this Rights Agreement to the contrary, in the
event that the Recapitalization and Distribution Agreement is terminated pursuant to its terms at
any time prior to the Acceptance Time with respect to the Split-Off, this Rights Agreement shall
automatically terminate and have no further force or effect, and any outstanding Rights shall
expire and the right to exercise them or to have them redeemed shall immediately terminate.
Section 24. Exchange.
(a) The Board of Directors may, at its option, at any time after any Person becomes an
Acquiring Person, exchange all or part of the then outstanding and exercisable Rights (which shall
not include Rights that have become null and void pursuant to the provisions of Section 7(e)
hereof) for Common Stock at an exchange ratio of one share of Class A Common Stock per Class A
Right, and one share of Class B Common Stock per Class B Right, in each case, appropriately
adjusted to reflect adjustments in the number of such Rights pursuant to Section 11 of this Rights
Agreement (such exchange ratio being hereinafter referred to as the applicable “Exchange Ratio”).
Notwithstanding the foregoing, the Board of Directors shall not be empowered to effect such
exchange at any time after any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan or compensation arrangement of the Company or any such Subsidiary, or any
entity holding securities of the Company to the extent organized, appointed or established by the
Company or any such Subsidiary for or pursuant to the terms of any such employee benefit plan or
compensation arrangement, or any Grandfathered Person), together with all Affiliates and Associates
of such Person, becomes the Beneficial Owner of 50% or more of the Voting Power of the Company.
(b) Immediately upon the action of the Board of Directors ordering the exchange of any Rights
pursuant to paragraph (a) of this Section 24 and without any further action and without any notice,
the right to exercise such Rights shall terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Class A Common Stock equal to the number of
such Class A Rights held by such holder, and that number of shares of Class B Common Stock equal to
the number of such Class B Rights held by such holder, multiplied by in each case, the applicable
Exchange Ratio. The Company promptly shall give public notice of any such exchange (with prompt written notice thereof to the Rights
Agent); provided, however, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. The Company promptly shall mail or cause to be
mailed a notice of any such exchange to all of the holders of such Rights at their last addresses
as they appear upon the registry books of the Rights Agent. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder receives the notice. Each
such notice of exchange will state the method by which the exchange of Common Stock for applicable
Rights will be effected and, in the event of any partial exchange, the number of Class A Rights or
Class B Rights, as applicable, which will be exchanged. Any partial exchange shall be effected
33
pro
rata based on the number of Rights (other than Rights which have become void pursuant to the
provisions of Section 7(e) hereof) held by each holder of applicable Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its option, may substitute
the applicable series of Preferred Stock (or equivalent preferred stock, as such term is defined in
Section 11(d) hereof) for Common Stock exchangeable for Rights, at the initial rate of one
one-hundredth of a share of such series of Preferred Stock (or equivalent preferred stock) for each
share of such Common Stock, as appropriately adjusted to reflect adjustments in the voting rights
of the Preferred Stock pursuant to the terms thereof, so that the fraction of a share of a series
of Preferred Stock delivered in lieu of each share of Common Stock shall have the same voting
rights as one share of such Common Stock.
(d) In the event that there shall not be sufficient shares of Class A Common Stock or Class B
Common Stock, as the case may be, or Series A Preferred Stock or Series B Preferred Stock (or
equivalent preferred stock), as the case may be, issued but not outstanding or authorized but
unissued to permit any exchange of Class A Rights or Class B Rights, respectively, as contemplated
in accordance with this Section 24, the Company shall take all such action as may be necessary to
authorize additional shares of Class A Common Stock or Class B Common Stock or Series A Preferred
Stock or Series B Preferred Stock (or equivalent preferred stock) for issuance upon exchange of the
Rights.
(e) The Company shall not be required to issue fractions of Common Stock or to distribute
certificates which evidence fractional shares of Common Stock. In lieu of such fractional shares
of Common Stock, the Company shall pay to the registered holders of the Right Certificates with
regard to which such fractional shares of Common Stock would otherwise be issuable an amount in
cash equal to the same fraction of the current market value of a whole share of Common Stock. For
the purposes of this paragraph (e), (i) the current market value of a whole share of Class A Common
Stock shall be the current market price of a share of Class A Common Stock (as determined pursuant
to the second sentence of Section 11(f)(i) hereof) for the Trading Day immediately prior to the
date of exchange pursuant to this Section 24, and (ii) the current market value of a whole share of
Class B Common Stock shall be the current market price of a share of Class B Common Stock (as
determined pursuant to the second sentence of Section 11(f)(i) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this Section 24.
Section 25. Notice of Proposed Actions.
(a) In case the Company shall propose at any time after the Distribution Date (i) to pay any
dividend payable in stock of any class to the holders of either series of Preferred Stock or to
make any other distribution to the holders of either series of Preferred Stock (other than a
regular periodic cash dividend out of earnings or retained earnings of the Company), (ii) to offer
to the holders of either series of the Preferred Stock rights or warrants to subscribe for or to
purchase any additional shares of such series of Preferred Stock or shares of stock of any other
class or any other securities, rights or options, (iii) to effect any reclassification of either
series of the Preferred Stock (other than a reclassification involving only the subdivision of
outstanding shares of such series of Preferred Stock), (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to permit one or
34
more of its Subsidiaries
to effect any sales or other transfer), in one or more transactions, of 50% or more of the assets
or earning power of the Company and its Subsidiaries (taken as a whole) to, any other Person,
(v) to effect the liquidation, dissolution or winding up of the Company, or (vi) to declare or pay
any dividend on the Class A Common Stock payable in Class A Common Stock or on the Class B Common
Stock payable in Class B Common Stock, or to effect a subdivision, combination or consolidation of
the Class A Common Stock or the Class B Common Stock (by reclassification or otherwise than by
payment of dividends in Class A Common Stock or Class B Common Stock, respectively), then, in each
such case, the Company shall give to each holder of a Right Certificate a notice of such proposed
action (with prompt written notice thereof to the Rights Agent), which shall specify the record
date for the purposes of such stock dividend, distribution of rights or warrants, or the date on
which such reclassification, consolidation, merger, sale, transfer, liquidation, dissolution, or
winding up is to take place and the date of participation therein by the holders of the Class A
Common Stock or Class B Common Stock and/or Series A Preferred Stock or Series B Preferred Stock,
if any such date is to be fixed. Such notice shall be so given in the case of any action covered
by clauses (i) or (ii) above at least ten days prior to the record date for determining holders of
the applicable series of Preferred Stock for purposes of such action, and in the case of any such
other action, at least ten days prior to the date of the taking of such proposed action or the date
of participation therein by the holders of such series of Preferred Stock, whichever shall be the
earlier. The failure to give notice required by this Section 25 or any defect therein shall not
affect the legality or validity of the action taken by the Company or the vote upon any such
action.
(b) In case a Section 11(b) Event shall occur, then the Company shall as soon as practicable
thereafter give to each holder of a Right Certificate, in accordance with Section 26 hereof, a
notice of the occurrence of such event (with prompt notice thereof to the Rights Agent), which
shall specify the event and the consequences of the event to holders of Rights under Section 11(b)
hereof.
(c) Failure to give notice required by this Section 25 or any defect therein shall not affect
the legality or validity of the action taken by the Company or the vote on any such action.
Section 26. Notices. Notices or demands authorized by this Rights Agreement to be given or
made by the Rights Agent or by the holder of any Right Certificate to or on the Company shall
be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Rights Agent) as follows:
Reinsurance Group of America, Incorporated
0000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
0000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Subject to the provisions of Section 21 hereof, any notice or demand authorized by this Rights
Agreement to be given or made by the Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as follows:
35
Mellon Investor Services LLC
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Relationship Manager
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Relationship Manager
with a copy to:
Mellon Investor Services LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Notices or demands authorized by this Rights Agreement to be given or made by the Company or the
Rights Agent to the holder of any Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.
Section 27. Supplements and Amendments. Subject to the last sentence of
this Section 27, the Company may from time to time supplement
or amend this Rights Agreement without the approval of any
holders of Right Certificates in order (a) to cure any
ambiguity, (b) to correct or supplement any provision
contained herein which may be defective or inconsistent with
any other provisions herein, (c) to shorten or lengthen any
time period hereunder (including without limitation to extend
the Final Expiration Date), (d) to increase or decrease the
Purchase Price, or (e) to change or supplement the provisions
hereunder in any manner which the Company may deem necessary
or desirable including but without limitation in connection
with the Recapitalization and/or the Conversion (if any);
provided, however, that from and after such time as any Person
becomes an Acquiring Person, this Rights Agreement shall not
be amended in any manner which would adversely affect the
interests of the holders of Rights; provided further that this
Rights Agreement may not be supplemented or amended to
lengthen pursuant to clause (c) of this sentence, (A) the time
period relating to the when the Rights may be redeemed at such
time as the Rights are not then redeemable, or (B) any other
time period unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the
benefits to, the holders of the Rights; provided further that
the Company shall have the right to make unilaterally any
changes necessary to facilitate the appointment of a successor
Rights Agent, which such changes shall be set forth in a
writing by the Company or by the Company and such successor
Rights Agent. Upon the delivery of a certificate from an
appropriate officer of the Company which states that the
proposed supplement or amendment (including, without
limitation, in connection with the Recapitalization) is in
compliance with the terms of this Section 27, the Rights Agent
shall execute such supplement or amendment. Notwithstanding
anything herein to the contrary, any supplement or amendment
that adversely affects the Rights Agent’s own duties,
obligations or immunities under this Rights Agreement shall
require the prior written consent of the Rights Agent, which
shall not be unreasonably withheld.
Section 28. Successors. All the covenants and provisions of this Rights
Agreement by or for the benefit of the Company or the Rights
Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
36
Section 29. Benefits of This Rights Agreement. Nothing in this Rights
Agreement shall be construed to give to any Person other than
the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date,
the Common Stock) any legal or equitable right, remedy or
claim under this Rights Agreement; but this Rights Agreement
shall be for the sole and exclusive benefit of the Company,
the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Class A
Common Stock and Class B Common Stock).
Section 30. Determinations and Actions by the Board, etc. The Board of
Directors shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and
powers specifically granted to the Board of Directors or to
the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without
limitation, the right and power to (i) interpret the
provisions of this Agreement and (ii) make all determinations
deemed necessary or advisable for the administration of this
Agreement. All such actions, interpretations, calculations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the
foregoing) done or made by the Board of Directors shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the holders of the
Rights and all other parties, and (y) not subject the Board of Directors to any
liability to the holders of the Rights. The Rights Agent shall be entitled to
assume that the Board of Directors acted in good faith and shall be fully
protected and incur no liability in reliance thereon.
Section 31. Severability. If any term, provision, covenant or
restriction of this Rights Agreement is held by a
court of competent jurisdiction or other authority to
be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of
this Rights Agreement shall remain in full force and
effect and shall in no way be affected, impaired or
invalidated. It is the intent of the parties hereto
to enforce the remainder of the terms, provisions,
covenants and restrictions of this Rights Agreement
to the maximum extent permitted by law; provided,
however, that if such excluded provision shall affect
the rights, immunities, duties or obligations of the
Rights Agent, the Rights Agent shall be entitled to
resign upon not less than 5 Business Days’ notice.
Section 32. Governing Law. This Rights Agreement and each Right
Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Missouri
and for all purposes shall be governed by and
construed in accordance with the laws of such State
applicable to contracts to be made and performed
entirely within such State; provided, however, that
all provisions regarding the rights, duties and
obligations of the Rights Agent shall be governed by
and construed in accordance with the laws of the
State of New York applicable to contracts made and to
be performed entirely within such State.
Section 33. Counterparts. This Rights Agreement may be executed
in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the
several Sections of this Rights Agreement are
inserted for convenience only and shall not control
or affect the meaning or construction of any of the
provisions hereof.
37
Section 35. Prior Agreement. This Agreement amends and restates
in its entirety the Original Section 382 Rights
Agreement and the terms and provisions of the
Original Section 382 Rights Agreement are superseded
hereby.
[Signature page follows.]
38
IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Rights Agreement
to be duly executed, all as of the day and year first above written.
Attest: | REINSURANCE GROUP OF AMERICA, INCORPORATED | |||||||||
By
|
/s/ Xxxxxxx X. Xxxxxx
|
By | /s/ Xxxx X. Xxxxxx
|
|||||||
Name:
|
Xxxxxxx X. Xxxxxx | Name: | Xxxx X. Xxxxxx | |||||||
Title:
|
Senior Vice President and Associate General Counsel |
Title: | Senior Vice President, Controller and Treasurer | |||||||
MELLON INVESTOR SERVICES LLC, as Rights Agent | ||||||||||
By | /s/ Xxxx Brunette | |||||||||
Name: | Xxxx Brunette | |||||||||
Title: | Assistant Vice President |
Exhibit A-1
FORM OF
AMENDED AND RESTATED CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A-1 JUNIOR PARTICIPATING PREFERRED STOCK
AMENDED AND RESTATED CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A-1 JUNIOR PARTICIPATING PREFERRED STOCK
OF
REINSURANCE GROUP OF AMERICA, INCORPORATED
Pursuant to Section 351.180 of
The General and Business Corporation Law of Missouri
We, , [NAME OF OFFICE], and , [NAME OF OFFICE], of Reinsurance Group of
America, Incorporated, a corporation organized and existing under The General and Business
Corporation Law of the State of Missouri, in accordance with the provisions of Section 351.180
thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the Restated Articles
of Incorporation of the Company, as amended, the said Board of Directors on June 1, 2008, adopted a
resolution (the “June Resolution”) creating a series of One Million Four Hundred Thousand
(1,400,000) shares of Preferred Stock designated as Series A-1 Junior Participating Preferred
Stock, par value $0.01 per share, a copy of which June Resolution was set forth in a certificate of
designations that was executed by the Company’s President, acknowledged and filed with the Office
of the Secretary of State, State of Missouri (the “June Certificate of Designation”); and
That no shares of such Series A-1 Junior Participating Preferred Stock are issued and
outstanding; and
That pursuant to the authority conferred upon the Board of Directors by the Amended and
Restated Articles of Incorporation of the Company, as amended, and Section 351.180.7 of the General
and Business Corporation Law of Missouri, which provides, in pertinent part, that the Board of
Directors may amend the June Certificate of Designation and the series of preferred stock set forth
thereon, so long as no shares of Series A-1 Junior Participating Preferred Stock are issued and
outstanding, and a duly authorized committee of the said Board of Directors on July 24, 2008
adopted the following resolution deleting the June Certificate of Designation in its entirety and
amending the powers, preferences and relative, participating, optional and other special rights,
and the qualifications, limitations, or restrictions thereof, as follows:
RESOLVED, that pursuant to the authority vested in the Board of Directors of the Company in
accordance with the provisions of its Amended and Restated Articles of Incorporation, as amended,
the designation and amount and the powers, preferences and relative, participating, optional and
other special rights of the shares of such series, and the qualifications, limitations or
restrictions of the Series A-1 Junior Participating Preferred Stock be, and such terms hereby are,
deleted in their entirety, and a series of Preferred Stock of the Company is hereby created, and
the designation and amount thereof and the powers, preferences and relative, participating,
optional or other special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof are amended in their entirety as follows:
1
Section 1. Designation and Amount.
There shall be a series of the Preferred Stock which shall be designated as the “Series A-1
Junior Participating Preferred Stock,” par value $0.01 per share, and the number of shares
constituting such series shall be 1,400,000. Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided, that no decrease shall reduce the number of
shares of Series A-1 Junior Participating Preferred Stock to a number less than that of the shares
then outstanding plus the number of shares issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by the Company.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of preferred stock of the
Company ranking prior and superior to the Series A-1 Junior Participating Preferred Stock with
respect to dividends, the holders of shares of Series A-1 Junior Participating Preferred Stock, in
preference to the holders of shares of Class A Common Stock, par value $0.01 per share of the
Company (for purposes of this Certificate of Designation only, the “Common Stock”), Class B Common
Stock, par value $0.01 per share of the Company (the “Class B Common Stock”), and of any other
junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for the purpose, quarterly dividends payable in cash on any regular
quarterly dividend payment date as shall be established by the Board of Directors (each such date
being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share of Series A-1
Junior Participating Preferred Stock, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $1.00 or (b) subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of Series A-1 Junior Participating
Preferred Stock. In the event the Company shall at any time after June 1, 2008 (the “Rights
Declaration Date”) declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in each such case the amount to
which holders of shares of Series A-1 Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on the Series A-1 Junior
Participating Preferred Stock as provided in paragraph (A) of this Section immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment
2
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on
the Series A-1 Junior Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A-1
Junior Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares, unless the date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin
to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders of shares
of Series A-1 Junior Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin
to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A-1 Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares
at the time outstanding. The Board of Directors may, in accordance with applicable law, fix a
record date for the determination of holders of shares of Series A-1 Junior Participating Preferred
Stock entitled to receive payment of a dividend or distribution declared thereon, which record date
shall be not more than such number of days prior to the date fixed for the payment thereof as may
be allowed by applicable law.
Section 3. Voting Rights.
The holders of shares of Series A-1 Junior Participating Preferred Stock shall have the
following voting rights:
(A) Each share of Series A-1 Junior Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the holders of the Class A Common Stock.
In the event the Company shall at any time after the Rights Declaration Date declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes to which holders of shares of
Series A-1 Junior Participating Preferred Stock were entitled immediately prior to such event under
the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein or in the Company’s Amended and Restated Articles of
Incorporation, as amended, and except as otherwise provided by law, the holders of Series A-1
Junior Participating Preferred Stock, the holders of shares of Common Stock, and the holders of
shares of any other capital stock of the Company having general voting rights, shall vote together
as one class on all matters submitted to a vote of shareholders of the Company.
(C) Except as otherwise set forth herein or in the Company’s Amended and Restated Articles of
Incorporation, as amended, and except as otherwise provided by law, holders of Series A-1 Junior
Participating Preferred Stock shall have no special voting rights and
3
their consent shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever dividends or distributions payable on the Series A-1 Junior Participating
Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series A-1 Junior
Participating Preferred Stock outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase
or otherwise acquire for consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A-1 Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series A-1 Junior Participating Preferred Stock, except dividends paid ratably on
the Series A-1 Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which the holders
of all such shares are then entitled;
(iii) except as permitted in Section 4(A)(iv) below, redeem or purchase or otherwise
acquire for consideration shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A-1 Junior Participating
Preferred Stock, provided that the Company may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any stock of the Company
ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to
the Series A-1 Junior Participating Preferred Stock; and
(iv) purchase or otherwise acquire for consideration any shares of Series A-1 Junior
Participating Preferred Stock, or any shares of stock ranking on a parity with the Series
A-1 Junior Participating Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired Shares.
Any shares of Series A-1 Junior Participating Preferred Stock purchased or otherwise acquired
by the Company in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. The Company shall cause all such shares upon their cancellation to be
authorized but unissued shares of Preferred Stock which may be reissued as part of a new series of
Preferred Stock, subject to the conditions and restrictions on issuance set forth herein.
4
Section 6. Liquidation, Dissolution or Winding Up.
(A) Subject to the rights of the holders of any shares of any series of Preferred Stock of
the Company ranking prior and superior to the Series A-1 Junior Participating Preferred Stock with
respect to liquidation, upon any liquidation (voluntary or otherwise), dissolution or winding up of
the Company, no distribution shall be made to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series A-1 Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of Series A-1 Junior
Participating Preferred Stock shall have received $100.00 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of
such payment (the “Series A-1 Liquidation Preference”). Following the payment of the full amount
of the Series A-1 Liquidation Preference, no additional distributions shall be made to the holders
of shares of Series A-1 Junior Participating Preferred Stock, unless, prior thereto, the holders of
shares of Common Stock shall have received an amount per share (the “Common Adjustment”) equal to
the quotient obtained by dividing (i) the Series A-1 Liquidation Preference by (ii) 100 (as
appropriately adjusted as set forth in subparagraph C below to reflect such events as stock
dividends, and subdivisions, combinations and consolidations with respect to the Common Stock)
(such number in clause (ii) being referred to as the “Adjustment Number”). Following the payment
of the full amount of the Series A-1 Liquidation Preference and the Common Adjustment in respect
of all outstanding shares of Series A-1 Junior Participating Preferred Stock and Common Stock,
respectively, holders of Series A-1 Junior Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to one with respect to such Series A-1 Junior
Participating Preferred Stock and Common Stock, on a per share basis, respectively.
(B) In the event there are not sufficient assets available to permit payment in full of the
Series A-1 Liquidation Preference and the liquidation preferences of all other series of preferred
stock, if any, which rank on a parity with the Series A-1 Junior Participating Preferred Stock,
then such remaining assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event there are not sufficient
assets available to permit payment in full of the Common Adjustment, then such remaining assets
shall be distributed ratably to the holders of Common Stock.
(C) In the event the Company shall at any time after the Rights Declaration Date declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of the Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the Adjustment Number in effect immediately prior
to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc.
In case the Company shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed into other
5
stock or securities, cash and/or any other property, then in any such case the shares of
Series A-1 Junior Participating Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Company shall at any time after the Rights Declaration Date
declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares of Series A-1 Junior
Participating Preferred Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that are outstanding
immediately prior to such event.
Section 8. Redemption.
The shares of Series A-1 Junior Participating Preferred Stock shall not be redeemable.
Section 9. Ranking.
The Series A-1 Junior Participating Preferred Stock shall rank junior to all other series of
the Company’s Preferred Stock as to the payment of dividends and the distribution of assets, unless
the terms of any such series shall provide otherwise.
Section 10. Fractional Shares.
Series A-1 Junior Participating Preferred Stock may be issued in fractions of a share which
shall entitle the holder, in proportion to such holder’s fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the benefit of all other rights
of holders of Series A-1 Junior Participating Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this Amended and Restated Certificate and
do affirm the foregoing as true under the penalties of perjury this day of
, 2008.
By: | ||||||
Name: | ||||||
Title: | [OFFICE] |
Attest
By: | ||||||
Name: | ||||||
Title: | [OFFICE] |
6
Exhibit A-2
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES B-1
JUNIOR PARTICIPATING PREFERRED STOCK
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES B-1
JUNIOR PARTICIPATING PREFERRED STOCK
OF
REINSURANCE GROUP OF AMERICA, INCORPORATED
Pursuant to Section 351.180 of
The General and Business Corporation Law of Missouri
We, , [NAME OF OFFICE], and , [NAME OF OFFICE], of Reinsurance Group of
America, Incorporated, a corporation organized and existing under The General and Business
Corporation Law of the State of Missouri, in accordance with the provisions of Section 351.180
thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the Amended and
Restated Articles of Incorporation, as amended, of the Company, a duly authorized committee of the
said Board of Directors as of July 24, 2008, adopted the following resolution creating a series of
Three Hundred Thousand (300,000) shares of Preferred Stock designated as Series B-1 Junior
Participating Preferred Stock, par value $0.01 per share:
RESOLVED, that pursuant to the authority vested in the Board of Directors of the Company in
accordance with the provisions of its Amended and Restated Articles of Incorporation, as amended, a
series of Preferred Stock of the Company be and it hereby is created, and that the designation and
amount thereof and the powers, preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications, limitations or restrictions thereof
are as follows:
Section 1. Designation and Amount.
There shall be a series of the Preferred Stock which shall be designated as the “Series B-1
Junior Participating Preferred Stock,” par value $0.01 per share, and the number of shares
constituting such series shall be 300,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares
of Series B-1 Junior Participating Preferred Stock to a number less than that of the shares then
outstanding plus the number of shares issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by the Company.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of preferred stock of the
Company ranking prior and superior to the Series B-1 Junior Participating Preferred Stock with
respect to dividends, the holders of shares of Series B-1 Junior Participating Preferred Stock, in
preference to the holders of shares of Class B Common Stock, par value $0.01 per share of the
Company (for purposes of this Certificate of Designation only, the “Common Stock”) and Class A
Common Stock, par value $0.01 per share of the Company (the “Class A Common Stock”), and of any
other junior stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
1
dividends payable in cash on any regular quarterly dividend payment date as shall be
established by the Board of Directors (each such date being referred to herein as a “Quarterly
Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series B-1 Junior Participating Preferred Stock, in
an amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subject
to the provision for adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, and 100 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series B-1 Junior Participating Preferred Stock. In the event the Company
shall at any time after the time at which the Amended and Restated Section 382 Rights Agreement
between the Company and the Rights Agent (as defined therein), dated as of September 12, 2008,
becomes effective (the “Rights Declaration Date”) declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of Series B-1 Junior Participating Preferred Stock
were entitled immediately prior to such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on the Series B-1 Junior
Participating Preferred Stock as provided in paragraph (A) of this Section immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series B-1 Junior
Participating Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series B-1
Junior Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares, unless the date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin
to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders of shares
of Series B-1 Junior Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin
to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series B-1 Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares
at the time outstanding. The Board of Directors may, in accordance with applicable law, fix a
record date for the determination of holders of shares of Series B-1 Junior
2
Participating Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than such number of days prior to the date
fixed for the payment thereof as may be allowed by applicable law.
Section 3. Voting Rights.
The holders of shares of Series B-1 Junior Participating Preferred Stock shall have the
following voting rights:
(A) Each share of Series B-1 Junior Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the holders of the Common Stock. In the
event the Company shall at any time after the Rights Declaration Date declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes to which holders of shares of Series B-1
Junior Participating Preferred Stock were entitled immediately prior to such event under the
preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein or in the Company’s Amended and Restated Articles of
Incorporation, as amended, and except as otherwise provided by law, the holders of Series B-1
Junior Participating Preferred Stock, the holders of shares of Common Stock, and the holders of
shares of any other capital stock of the Company having general voting rights, shall vote together
as one class on all matters submitted to a vote of shareholders of the Company.
(C) Except as otherwise set forth herein or in the Company’s Amended and Restated Articles of
Incorporation, as amended, and except as otherwise provided by law, holders of Series B-1 Junior
Participating Preferred Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever dividends or distributions payable on the Series B-1 Junior Participating
Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series B-1 Junior
Participating Preferred Stock outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase
or otherwise acquire for consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series B-1 Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series B-1 Junior Participating Preferred Stock, except dividends paid ratably on
the Series B-1 Junior Participating Preferred Stock and all such parity
3
stock on which dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) except as permitted in Section 4(A)(iv) below, redeem or purchase or otherwise
acquire for consideration shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series B-1 Junior Participating
Preferred Stock, provided that the Company may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any stock of the Company
ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to
the Series B-1 Junior Participating Preferred Stock; and
(iv) purchase or otherwise acquire for consideration any shares of Series B-1 Junior
Participating Preferred Stock, or any shares of stock ranking on a parity with the Series
B-1 Junior Participating Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired Shares.
Any shares of Series B-1 Junior Participating Preferred Stock purchased or otherwise acquired
by the Company in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. The Company shall cause all such shares upon their cancellation to be
authorized but unissued shares of Preferred Stock which may be reissued as part of a new series of
Preferred Stock, subject to the conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Subject to the rights of the holders of any shares of any series of Preferred Stock of
the Company ranking prior and superior to the Series B-1 Junior Participating Preferred Stock with
respect to liquidation, upon any liquidation (voluntary or otherwise), dissolution or winding up of
the Company, no distribution shall be made to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series B-1 Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of Series B-1 Junior
Participating Preferred Stock shall have received $100.00 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of
such payment (the “Series B-1 Liquidation Preference”). Following the payment of the full amount
of the Series B-1 Liquidation Preference, no additional distributions shall be made to the holders
of shares of Series B-1 Junior Participating Preferred Stock, unless, prior thereto, the holders of
shares of Common Stock shall have received an amount per share (the “Common Adjustment”) equal to
the quotient obtained by dividing (i) the Series B-1 Liquidation Preference by (ii) 100 (as
appropriately adjusted as set forth in subparagraph C below to reflect such events
4
as stock dividends, and subdivisions, combinations and consolidations with respect to the
Common Stock) (such number in clause (ii) being referred to as the “Adjustment Number”). Following
the payment of the full amount of the Series B-1 Liquidation Preference and the Common Adjustment
in respect of all outstanding shares of Series B-1 Junior Participating Preferred Stock and Common
Stock, respectively, holders of Series B-1 Junior Participating Preferred Stock and holders of
shares of Common Stock shall receive their ratable and proportionate share of the remaining assets
to be distributed in the ratio of the Adjustment Number to one with respect to such Series B-1
Junior Participating Preferred Stock and Common Stock, on a per share basis, respectively.
(B) In the event there are not sufficient assets available to permit payment in full of the
Series B-1 Liquidation Preference and the liquidation preferences of all other series of preferred
stock, if any, which rank on a parity with the Series B-1 Junior Participating Preferred Stock,
then such remaining assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event there are not sufficient
assets available to permit payment in full of the Common Adjustment, then such remaining assets
shall be distributed ratably to the holders of Common Stock.
(C) In the event the Company shall at any time after the Rights Declaration Date declare or
pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the Adjustment Number in effect immediately prior
to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc.
In case the Company shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of Series B-1 Junior
Participating Preferred Stock shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set forth) equal to 100 times the
aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or exchanged. In the
event the Company shall at any time after the Rights Declaration Date declare or pay any dividend
on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series B-1 Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of which is the number of
shares of Common Stock that are outstanding immediately prior to such event.
5
Section 8. Redemption.
The shares of Series B-1 Junior Participating Preferred Stock shall not be redeemable.
Section 9. Ranking.
The Series B-1 Junior Participating Preferred Stock shall rank junior to all other series of
the Company’s Preferred Stock as to the payment of dividends and the distribution of assets, unless
the terms of any such series shall provide otherwise.
Section 10. Fractional Shares.
Series B-1 Junior Participating Preferred Stock may be issued in fractions of a share which
shall entitle the holder, in proportion to such holder’s fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the benefit of all other rights
of holders of Series B-1 Junior Participating Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm the
foregoing as true under the penalties of perjury this day of , 2008.
By: | ||||||
Name: | ||||||
Title: | [OFFICE] |
Attest
By: | ||||||
Name: | ||||||
Title: | [OFFICE] |
6
Exhibit B-1
[Form of Right Certificate]
Certificate No. R- Rights
NOT EXERCISABLE AFTER THE EXPIRATION DATE. AT
THE OPTION OF THE COMPANY, THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $0.001 PER RIGHT OR
EXCHANGE FOR CLASS A COMMON STOCK, UNDER THE
CIRCUMSTANCES AND ON THE TERMS SET FORTH IN
THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY THIS RIGHT
CERTIFICATE WERE ISSUED TO A PERSON WHO WAS AN
ACQUIRING PERSON. THIS RIGHT CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY ARE VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE
RIGHTS AGREEMENT.]*
THE OPTION OF THE COMPANY, THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $0.001 PER RIGHT OR
EXCHANGE FOR CLASS A COMMON STOCK, UNDER THE
CIRCUMSTANCES AND ON THE TERMS SET FORTH IN
THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY THIS RIGHT
CERTIFICATE WERE ISSUED TO A PERSON WHO WAS AN
ACQUIRING PERSON. THIS RIGHT CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY ARE VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE
RIGHTS AGREEMENT.]*
Right Certificate
REINSURANCE GROUP OF AMERICA, INCORPORATED
This certifies that , or registered assigns, is the registered owner of the
number of Rights set forth above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Amended and Restated Section 382 Rights Agreement, dated as of
September 12, 2008 (the “Rights Agreement”), between Reinsurance Group of America, Incorporated, a
Missouri corporation (the “Company”), and Mellon Investor Services LLC, a New Jersey limited
liability company (the “Rights Agent”), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior to 5:00 p.m. St.
Louis, Missouri time on the Expiration Date, as that term is defined in the Rights Agreement, at
the shareholder services office (or such office designated for such purpose) of the Rights Agent,
or its successor as Rights Agent, one one-hundredth of a fully paid, nonassessable share of the
Series A-1 Junior Participating Preferred Stock, par value $0.01 per share (“Preferred Stock”), of
the Company, at a purchase price of $ per one one-hundredth of a share (the “Purchase
Price”) upon presentation and surrender of this Right Certificate with the Form of Election to
Purchase duly executed. The number of Rights evidenced by this Right Certificate (and the number
of shares which may be purchased upon exercise of each Right) and the Purchase Price set forth
above, are the number and Purchase Price as of , , based on the shares of Preferred
Stock of the Company as constituted at such date.
The Purchase Price and the number of shares of Preferred Stock which may be purchased upon the
exercise of each of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events as provided in the Rights
Agreement.
* | The portion of the legend in brackets shall be inserted only if applicable. |
1
This Right Certificate is subject to all of the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certificates. Copies of the Rights Agreement are
on file at the Company and the above-mentioned office of the Rights Agent and are also available
upon written request to the Company.
This Right Certificate, with or without other Right Certificates, upon surrender at the
shareholder services office (or such office designated for such purpose) of the Rights Agent, may
be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing
Rights entitling the holder to purchase a like aggregate number of shares of Preferred Stock as the
Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be exercised in part, the holder shall be
entitled to receive, upon surrender hereof, another Right Certificate or Right Certificates for the
number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate
may be redeemed by the Company at its option at a redemption price of $0.001 per Right on or prior
to the Stock Acquisition Date (as defined in the Rights Agreement). In addition, subject to the
provisions of the Rights Agreement, each Right evidenced by this Certificate may be exchanged by
the Company at its option for one share of Class A Common Stock following the Stock Acquisition
Date.
No fractional shares of Preferred Stock will be issued upon the exercise of any Rights
evidenced hereby (other than fractions which are integral multiples of one one-hundredth of a share
of Preferred Stock, which may, at the election of the Company, be evidenced by depositary
receipts). In lieu of fractions of a share, a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Right Certificate shall be entitled to vote or receive dividends or be
deemed for any purpose the holder of shares of Preferred Stock or of any other securities of the
Company which may at any time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the
rights of a shareholder of the Company or any right to vote for the election of directors or upon
any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting shareholders (except
as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Rights evidenced by this Right Certificate shall have been exercised as provided in the
Rights Agreement.
2
This Right Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Dated as of , .
Attest: | REINSURANCE GROUP OF AMERICA, INCORPORATED | |||||||||
By
|
By | |||||||||
Name:
|
Name: | |||||||||
Title:
|
Title: | |||||||||
Countersigned:
MELLON INVESTOR SERVICES LLC
By:
Authorized signature
Authorized signature
3
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint Attorney to transfer the within Right Certificate
on the books of the within-named Company, with full power of substitution.
Dated:
Signature
(Signature must conform in all respects to name of holder as specified on the face of this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member or a participant in the Securities Transfer Agent
Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.
4
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and transferred by or on
behalf of a Person who is or was an Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Right Certificate from any Person who is, was or subsequently
became an Acquiring Person.
Dated:
Signature
(Signature must conform in all respects to name of holder as specified on the face of this Right Certificate)
5
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
exercise the Right Certificate.)
To Reinsurance Group of America, Incorporated:
The undersigned hereby irrevocably elects to exercise Rights represented by this Right
Certificate to purchase the shares of Preferred Stock issuable upon the exercise of such Rights and
requests that certificates for such shares be issued in the name of:
Name: | ||||||
Address: | ||||||
Social security | ||||||
or taxpayer identification | ||||||
number: | ||||||
If such number of Rights shall not be all the Rights evidenced by this Right Certificate, a new
Right Certificate for the balance remaining of such Rights shall be registered in the name of and
delivered to:
Name: | ||||||
Address: | ||||||
Social security | ||||||
or taxpayer identification | ||||||
number: | ||||||
Dated: __________________
Signature
(Signature must conform in all respects to name of holder as specified on the face of this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member or a participant in the Securities Transfer Agent
Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.
NOTICE
The signature in the foregoing Forms of Assignment and Election must conform to the name as
written upon the face of this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
6
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not being exercised by or
on behalf of a Person who is or was an Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) this Right Certificate [ ] is [ ] is not being sold, assigned and transferred by or on
behalf of a Person who is or was an Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(3) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Right Certificate from any Person who is, was or became an
Acquiring Person.
Dated: _______________
Signature
(Signature must conform in all respects to name of holder as specified on the face of this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member or a participant in the Securities Transfer Agent
Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.
NOTICE
The signature in the foregoing Forms of Assignment and Election must conform to the name as
written upon the face of this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the form of Assignment or the form of
Election to Purchase, as the case may be, is not completed, the Company and the Rights Agent will
deem the beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring
Person (as defined in the Rights Agreement) and such Assignment or Election to Purchase will not be
honored as described in Section 7(e) of the Rights Agreement.
7
Exhibit B-2
[Form of Right Certificate]
Certificate No. R- Rights
NOT EXERCISABLE AFTER THE EXPIRATION DATE. AT
THE OPTION OF THE COMPANY, THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $0.001 PER RIGHT OR
EXCHANGE FOR CLASS B COMMON STOCK, UNDER THE
CIRCUMSTANCES AND ON THE TERMS SET FORTH IN
THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY THIS RIGHT
CERTIFICATE WERE ISSUED TO A PERSON WHO WAS AN
ACQUIRING PERSON. THIS RIGHT CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY ARE VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE
RIGHTS AGREEMENT.]*
THE OPTION OF THE COMPANY, THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $0.001 PER RIGHT OR
EXCHANGE FOR CLASS B COMMON STOCK, UNDER THE
CIRCUMSTANCES AND ON THE TERMS SET FORTH IN
THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY THIS RIGHT
CERTIFICATE WERE ISSUED TO A PERSON WHO WAS AN
ACQUIRING PERSON. THIS RIGHT CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY ARE VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE
RIGHTS AGREEMENT.]*
Right Certificate
REINSURANCE GROUP OF AMERICA, INCORPORATED
This certifies that , or registered assigns, is the registered owner of the
number of Rights set forth above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Amended and Restated Section 382 Rights Agreement, dated as of
September 12, 2008 (the “Rights Agreement”), between Reinsurance Group of America, Incorporated, a
Missouri corporation (the “Company”), and Mellon Investor Services LLC, a New Jersey limited
liability company (the “Rights Agent”), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior to 5:00 p.m. St.
Louis, Missouri time on the Expiration Date, as that term is defined in the Rights Agreement, at
the shareholder services office (or such office designated for such purpose) of the Rights Agent,
or its successor as Rights Agent, one one-hundredth of a fully paid, nonassessable share of the
Series B-1 Junior Participating Preferred Stock, par value $0.01 per share (“Preferred Stock”), of
the Company, at a purchase price of $ per one one-hundredth of a share (the “Purchase
Price”) upon presentation and surrender of this Right Certificate with the Form of Election to
Purchase duly executed. The number of Rights evidenced by this Right Certificate (and the number
of shares which may be purchased upon exercise of each Right) and the Purchase Price set forth
above, are the number and Purchase Price as of , , based on the shares of Preferred
Stock of the Company as constituted at such date.
The Purchase Price and the number of shares of Preferred Stock which may be purchased upon the
exercise of each of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events as provided in the Rights Agreement.
* | The portion of the legend in brackets shall be inserted only if applicable. |
This Right Certificate is subject to all of the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certificates. Copies of the Rights Agreement are
on file at the Company and the above-mentioned office of the Rights Agent and are also available
upon written request to the Company.
This Right Certificate, with or without other Right Certificates, upon surrender at the
shareholder services office (or such office designated for such purpose) of the Rights Agent, may
be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing
Rights entitling the holder to purchase a like aggregate number of shares of Preferred Stock as the
Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be exercised in part, the holder shall be
entitled to receive, upon surrender hereof, another Right Certificate or Right Certificates for the
number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate
may be redeemed by the Company at its option at a redemption price of $0.001 per Right on or prior
to the Stock Acquisition Date (as defined in the Rights Agreement). In addition, subject to the
provisions of the Rights Agreement, each Right evidenced by this Certificate may be exchanged by
the Company at its option for one share of Class B Common Stock following the Stock Acquisition
Date.
No fractional shares of Preferred Stock will be issued upon the exercise of any Rights
evidenced hereby (other than fractions which are integral multiples of one one-hundredth of a share
of Preferred Stock, which may, at the election of the Company, be evidenced by depositary
receipts). In lieu of fractions of a share, a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Right Certificate shall be entitled to vote or receive dividends or be
deemed for any purpose the holder of shares of Preferred Stock or of any other securities of the
Company which may at any time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the
rights of a shareholder of the Company or any right to vote for the election of directors or upon
any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting shareholders (except
as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Rights evidenced by this Right Certificate shall have been exercised as provided in the
Rights Agreement.
2
This Right Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Dated as of , .
Attest: | REINSURANCE GROUP OF AMERICA, INCORPORATED | |||||||||
By
|
By | |||||||||
Name:
|
Name: | |||||||||
Title:
|
Title: | |||||||||
Countersigned:
MELLON INVESTOR SERVICES LLC
By:
Authorized signature
Authorized signature
3
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint Attorney to transfer the within Right Certificate
on the books of the within-named Company, with full power of substitution.
Dated:
Signature
(Signature must conform in all respects to name of holder as specified on the face of this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member or a participant in the Securities Transfer Agent
Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.
4
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and transferred by or on
behalf of a Person who is or was an Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Right Certificate from any Person who is, was or subsequently
became an Acquiring Person.
Dated: |
||||||||
(Signature must conform in all respects to name of
holder as specified on the face of this Right Certificate) |
5
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
exercise the Right Certificate.)
To Reinsurance Group of America, Incorporated:
The undersigned hereby irrevocably elects to exercise Rights represented by this Right
Certificate to purchase the shares of Preferred Stock issuable upon the exercise of such Rights and
requests that certificates for such shares be issued in the name of:
Name: | ||||||
Address: | ||||||
Social security | ||||||
or taxpayer identification | ||||||
number: | ||||||
If such number of Rights shall not be all the Rights evidenced by this Right Certificate, a new
Right Certificate for the balance remaining of such Rights shall be registered in the name of and
delivered to:
Name: | ||||||
Address: | ||||||
Social security | ||||||
or taxpayer identification | ||||||
number: | ||||||
Dated:
Signature
(Signature must conform in all respects to name of holder as specified on the face of this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member or a participant in the Securities Transfer Agent
Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.
NOTICE
The signature in the foregoing Forms of Assignment and Election must conform to the name as
written upon the face of this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
6
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not being exercised by or
on behalf of a Person who is or was an Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) this Right Certificate [ ] is [ ] is not being sold, assigned and transferred by or on
behalf of a Person who is or was an Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(3) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Right Certificate from any Person who is, was or became an
Acquiring Person.
Dated:
Signature
(Signature must conform in all respects to name of holder as specified on the face of this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member or a participant in the Securities Transfer Agent
Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.
NOTICE
The signature in the foregoing Forms of Assignment and Election must conform to the name as
written upon the face of this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the form of Assignment or the form of Election to
Purchase, as the case may be, is not completed, the Company and the Rights Agent will deem the
beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring Person (as
defined in the Rights Agreement) and such Assignment or Election to Purchase will not be honored as
described in Section 7(e) of the Rights Agreement.
7