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EXHIBIT 99.4
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of November 23,
1999, by and among METROPOLITAN LIFE INSURANCE COMPANY, a New York mutual life
insurance company ("Buyer"), GENAMERICA CORPORATION, a Missouri corporation
("GenAmerica"), GENERAL AMERICAN LIFE INSURANCE COMPANY, a Missouri insurance
company and wholly-owned subsidiary of GenAmerica ("GALIC"), EQUITY INTERMEDIARY
COMPANY, a Missouri corporation and a wholly-owned subsidiary of GALIC ("EIM"),
and REINSURANCE GROUP OF AMERICA, INCORPORATED, a Missouri corporation 53.5% of
the outstanding common stock of which is owned by EIM (the "Company").
W I T N E S S E T H:
WHEREAS, the Company and Buyer have entered into a Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated as of November 23, 1999,
pursuant to which the Company shall sell to Buyer, and Buyer shall purchase from
the Company, shares of the Company's common stock, par value $0.01 per share
(the "Company Common Stock");
WHEREAS, GenAmerica, GALIC, EIM and the Company wish to execute and
deliver this Agreement in order to induce Buyer to purchase shares of Company
Common Stock under the Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the representations, warranties,
agreements and covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the following
respective meanings:
"Affiliate" shall mean, with respect to any person, any other person
who directly or indirectly controls, is controlled by or is under common control
with such person. The term "control", for the purposes of this definition, means
the power to direct or cause the direction of the management or policies of the
controlled person.
"Affiliated Stockholder" shall mean any Affiliate of GenAmerica, GALIC
or EIM who at such time is the record or beneficial owner of any Company Common
Stock.
"Board" shall have the meaning set forth in Section 4.1(a).
"Business Day" shall mean any day other than (i) a Saturday, (ii) a
Sunday or (iii) any other day on which banks are authorized or required to close
in New York, New York.
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"Buyer" shall have the meaning set forth in the first paragraph hereof
and, with respect to any successor or assign of Buyer that becomes such in
accordance with Section 6.7 hereof, such successor or assign.
"Buyer Affiliates" shall have the meaning set forth in Section 4.1(a).
"Company" shall have the meaning set forth in the first paragraph
hereof.
"Company Common Stock" shall have the meaning set forth in the
recitals hereto.
"Company Plans" shall have the meaning set forth in Section 3.11(b) of
the Stock Purchase Agreement.
"Company Preferred Stock" shall have the meaning set forth in Section
3.3(a) of the Stock Purchase Agreement.
"EIM" shall have the meaning set forth in the first paragraph hereof.
"Exempt Transfers" means (a) any transfers of Company Common Stock
made (i) in connection with a Public Offering or a public offering pursuant to a
registration statement on Form S-4 or any successor form or a tender offer on
Schedule 14D-1, 13E-3 or 13E-4 or any successor form, or (ii) pursuant to Rule
144 under the Securities Act, or (b) any bona fide pledges of Company Common
Stock to any financial institution.
"GALIC" shall have the meaning set forth in the first paragraph
hereof.
"GenAmerica" shall have the meaning set forth in the first paragraph
hereof.
"General American" shall mean General American Mutual Holding Company,
a Missouri mutual insurance holding company.
"General American Agreement" shall mean the Stock Purchase Agreement,
dated as of August 26, 1999, by and between General American and Buyer, as
amended from time to time.
"Offer" shall have the meaning set forth in Section 4.1(a).
"Offered Shares" shall have the meaning set forth in Section 4.1(a).
"person" shall mean an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
business trust, a joint venture, an unincorporated organization or a government
entity or any department, agency or political subdivision thereof.
"Prohibited Transfer" shall have the meaning set forth in Section 3.1.
"Proposed Transferee" shall have the meaning set forth in Section
4.1(a).
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"Public Offering" means an offering of Company Common Stock to the
general public pursuant to a registration statement (other than a registration
statement on Form S-4 or S-8 or any similar or successor form or forms) filed
with and declared effective by the SEC under the Securities Act.
"Remaining Offered Shares" shall have the meaning set forth in Section
4.1(c).
"Rights Agreement" shall mean the Rights Agreement, dated as of May 4,
1993, between the Company and Xxxxx Xxxxxx Shareholder Services, L.L.C. (as
successor to Xxxxxxx'x Trust Company), as amended.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"Selling Stockholder" shall have the meaning set forth in Section
4.1(a).
"Stock Purchase Agreement" shall have the meaning set forth in the
recitals hereto.
"Subsidiary" shall mean with respect to any person, any other person
of which such first person, directly or indirectly, owns or controls 50% or more
of the securities or other interests entitled to vote under ordinary
circumstances in the election of directors or others performing similar
functions with respect to such other person or to otherwise control such other
person.
"Tag-Along Notice" shall have the meaning set forth in Section 4.1(d).
"Tag-Along Right" shall have the meaning set forth in Section 4.1(b).
"Tag-Along Shares" shall have the meaning set forth in Section 4.1(b).
"Tag-Along Stockholder" shall have the meaning set forth in Section
4.1(b).
"transfer" means and includes any direct or indirect offer for sale,
sale, assignment, transfer, pledge, encumbrance, or other disposition of, or the
subjecting to a security interest of, any Company Common Stock or any
disposition of any Company Common Stock or of any interest therein which would
constitute a sale thereof within the meaning of the Securities Act.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 By the Company. The Company hereby represents and warrants
to Buyer that (i) Schedule 1 correctly and completely sets forth the Company's
capitalization as of the date hereof, indicating the authorized, issued and
outstanding capital stock of the Company and any securities which are
convertible into or exercisable or exchangeable for any capital stock
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of the Company, and (ii) as of the date hereof, the Company is not a party to
any agreement with respect to the holding, voting, acquisition or disposition of
any securities described in the immediately preceding clause (i) except that
2,007,282 shares of Company Common Stock are reserved for issuance pursuant to
the Company Plans and 500,000 shares of Company Preferred Stock are reserved for
issuance pursuant to the Rights Agreement.
Section 2.2 By GenAmerica, GALIC and EIM. GenAmerica, GALIC and EIM
hereby represent and warrant to Buyer that (i) EIM is the sole record and
beneficial owner of 24,131,250 shares of Company Common Stock, (ii) except for
the General American Agreement (as such term is defined in the Stock Purchase
Agreement), such shares of Company Common Stock are not subject to any agreement
or understanding relating to or restricting voting or transfer thereof and (iii)
neither EIM nor any of its Affiliates is a record or beneficial owner of any
capital stock of the Company (or any securities which are convertible into or
exercisable or exchangeable for any capital stock of the Company) other than as
set forth in this Section 2.2.
ARTICLE III
RESTRICTIONS ON TRANSFERS
Section 3.1 Transferees Subject to Agreement. In the event of any
transfer of shares of Company Common Stock or rights to acquire shares of
Company Common Stock by EIM or any Affiliated Stockholder (other than pursuant
to the General American Agreement), the transferee shall hold such shares of
Company Common Stock or rights so acquired with all the rights conferred by, and
subject to all of the restrictions imposed by, this Agreement applicable to the
transferor of such shares of Company Common Stock or rights. In addition, any
transferee of any shares of Company Common Stock or rights shall, as a condition
of the consummation of such transfer, agree to be subject to this Agreement. Any
purported transfer of shares of Company Common Stock or rights in violation of
this Agreement (a "Prohibited Transfer") shall be null and void. The Company
shall not record any Prohibited Transfer on its books and shall not recognize
any equitable or other claim to, or any interest in, shares of Company Common
Stock or rights that are the subject of a Prohibited Transfer on the part of any
person other than the stockholder that attempted to transfer the shares of
Company Common Stock or rights in violation of this Agreement. The Company shall
refuse to record on its books any purported transfer of shares of Company Common
Stock by EIM or any Affiliated Stockholder unless Buyer's written consent to
such transfer has been obtained, which consent shall not be unreasonably
withheld.
Section 3.2 Exceptions to Transfer Restrictions. The prohibitions of
Section 3.1 shall not apply to any Exempt Transfers.
Section 3.3 Restrictive Legends. Each certificate representing shares
of Company Common Stock now or hereafter owned (whether beneficially or of
record) by EIM or any Affiliated Stockholder shall bear a legend substantially
in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO, AND ARE
TRANSFERABLE ONLY UPON COMPLIANCE WITH, THE PROVISIONS OF THE
STOCKHOLDERS AGREEMENT DATED AS OF NOVEMBER 23, 1999 AMONG
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REINSURANCE GROUP OF AMERICA, INCORPORATED AND CERTAIN OF ITS
STOCKHOLDERS. A COPY OF THE ABOVE-REFERENCED AGREEMENT IS ON FILE AT
THE OFFICE OF REINSURANCE GROUP OF AMERICA, INCORPORATED.
Whenever any such shares cease to be subject to this Agreement, the holder
thereof shall be entitled to receive from the Company, without expense, upon
surrender to the Company of the certificates representing such shares, a new
certificate in such holder's name representing such shares of like tenor but
without a legend of the character set forth above.
ARTICLE IV
TAG-ALONG RIGHT
Section 4.1 Tag-Along Right.
(a) Except for Exempt Transfers and without limiting anything
contained in Article III, if at any time and from time to time EIM and/or any
Affiliated Stockholder (collectively, the "Selling Stockholder") proposes to
transfer, in any transaction or series of related transactions, a number of
shares of Company Common Stock and/or rights to acquire (pursuant to conversion,
exchange or other exercise) a number of shares of Company Common Stock
(collectively, the "Offered Shares") equal to no less than five percent (5%) of
the shares then collectively owned (whether beneficially or of record) by such
Selling Stockholder and its Affiliates (counting the Offered Shares issuable
upon the exercise of any right to acquire same as outstanding for purposes of
this Article IV) pursuant to a bona fide, arm's-length offer from a bona fide
third party (the "Proposed Transferee"), the Selling Stockholder shall submit a
notice (an "Offer") to Buyer and its Affiliates who own (whether beneficially or
of record) any shares of Company Common Stock ("Buyer Affiliates"). The Offer
shall disclose (i) the identity of the Selling Stockholder and the Proposed
Transferee, (ii) the total number of Offered Shares proposed to be transferred,
(iii) the total number of shares of Company Common Stock owned by such Selling
Stockholder, (iv) the terms and conditions of the proposed transfer of the
Offered Shares to the Proposed Transferee, including the price per share to be
paid, (v) the terms and conditions of payment offered by the Proposed Transferee
and, in the case of consideration in whole or in part other than cash, the fair
market value thereof as determined promptly and in good faith by the Selling
Stockholder as of the date of the Offer, (vi) the address of the Selling
Stockholder, (vii) that the Proposed Transferee has been informed of the
Tag-Along Right provided for in this Article IV, and (viii) any other material
facts relating to the proposed sale of the Offered Shares to the Proposed
Transferee.
(b) Buyer and the Buyer Affiliates (collectively, the "Tag-Along
Stockholder") shall have the irrevocable right (the "Tag-Along Right") to
require the Selling Stockholder to cause the Proposed Transferee to purchase
from such Tag-Along Stockholder that number of shares of Company Common Stock
held by such Tag-Along Stockholder as is equal to the product of the Offered
Shares multiplied by a fraction, the numerator of which is the number of shares
of Company Common Stock owned (whether beneficially or of record) by such
Tag-Along Stockholder and the denominator of which is the sum of the number of
shares of Company Common Stock owned (whether beneficially or of record) by the
Selling Stockholder
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and all Tag-Along Stockholders who are exercising their Tag-Along Rights (the
"Tag-Along Shares").
(c) The transfer of the Offered Shares (as reduced by the Tag-Along
Shares, the "Remaining Offered Shares") and the Tag-Along Shares shall be for
the same consideration (except as may be determined pursuant to Section 4.1(e)
below) and otherwise on the same terms and conditions (including, without
limitation, seller representations (except any representations specific to a
particular seller), provided that the aggregate liability of the Tag-Along
Stockholder for breaches of representations, warranties and covenants and
agreements contained in the definitive documents relating to such transfer shall
not exceed the sales proceeds received by the Tag-Along Stockholder in such
transfer) for all holders as set forth in the Offer (counting as part of such
consideration any price associated with the exercise of any rights to acquire
Remaining Offered Shares).
(d) The Tag-Along Right shall be exercised by a Tag-Along Stockholder
by notifying the Selling Stockholder and the Company in writing (the "Tag-Along
Notice") within twenty (20) days of its receipt of the Offer of its intention to
sell its Tag-Along Shares. The Tag-Along Notice shall state the number of shares
of Company Common Stock that such Tag-Along Stockholder proposes to include in
such transfer to the Proposed Transferee, which number shall not exceed the
maximum number of shares of Company Common Stock which such Tag-Along
Stockholder would be entitled to include if all Tag-Along Stockholders elected
to participate in the transfer to the fullest extent possible, determined in
accordance with Section 4.1(b). Failure by any Tag-Along Stockholder to deliver
a Tag-Along Notice by the end of such twenty (20) day period shall be deemed to
constitute the election of such Tag-Along Stockholder not to exercise its
Tag-Along Rights.
(e) In the event that the consideration proposed to be paid for the
Offered Shares by the Proposed Transferee shall include any consideration other
than cash, and the Offer includes a fair market value of such non-cash
consideration that the Tag-Along Stockholder objects to, the Tag-Along Notice
shall set forth such objection. If the Selling Stockholder and holders
representing a majority-in-interest of the Tag-Along Stockholders cannot agree
on a valuation within five (5) Business Days following the twenty (20) day
period following the date the Offer was made, then the dispute shall be referred
to a nationally-recognized investment banking firm selected jointly by the
Selling Stockholder and holders representing a majority-in-interest of the
Tag-Along Stockholders. If the Selling Stockholder and holders representing a
majority-in-interest of the Tag-Along Stockholders cannot agree on the selection
of an investment banking firm, then the Selling Stockholder and holders
representing a majority-in-interest of the Tag-Along Stockholders shall each
select one such firm and such firms shall designate a mutually acceptable
investment banking firm with a nationwide reputation to determine the aggregate
value of all consideration proposed to be paid by the Proposed Transferee for
the Offered Shares. The expenses of such investment banking firms shall be paid
one-half by each of the Selling Stockholder and the Tag-Along Stockholders (each
of whom shall pay their pro rata portion of such expenses based upon the number
of Tag-Along Shares that such Tag-Along Stockholder requested to sell). All
determinations made pursuant to this Section 4.1(e) shall be final, conclusive
and binding on the Selling Stockholder and the Tag-Along Stockholders.
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(f) Within forty-five (45) days of the delivery of the Offer to the
Tag-Along Stockholders, the Selling Stockholder shall deliver to each Tag-Along
Stockholder who validly exercises its Tag-Along Right, a notice setting forth
the number of shares of Company Common Stock that such Tag-Along Stockholder
will be entitled to sell to the Proposed Transferee pursuant to this Section
4.1, and the delivery instructions and procedures required to effectuate the
transfer. In the event that any Tag-Along Stockholders do not choose to
participate in the transfer to the fullest extent possible, the Selling
Stockholder shall have the right to include shares of Company Common Stock that
Tag-Along Stockholders would have been entitled to include but did not elect to
include, to the extent that the Selling Stockholder owns the number of such
shares of Company Common Stock.
(g) If the Proposed Transferee does not purchase shares of Company
Common Stock from the Tag-Along Stockholders who exercise their respective
Tag-Along Rights at the same price and on the same terms and conditions as the
Proposed Transferee purchases from the Selling Stockholder, then the Selling
Stockholder shall not be permitted to transfer any shares of Company Common
Stock to the Proposed Transferee in the proposed transfer. The Selling
Stockholder and the Tag-Along Stockholders who validly exercise their respective
Tag-Along Rights shall have the right, for a one hundred twenty (120) day period
following the delivery of the Offer, to transfer to the Proposed Transferee the
shares of Company Common Stock proposed to be transferred on terms and
conditions no more favorable to the Selling Stockholder and such Tag-Along
Stockholders than those stated in the Offer. Any shares of Company Common Stock
that continue to be held by the Selling Stockholder or any such Tag-Along
Stockholders after the earlier of the consummation of the proposed transfer or
the expiration of such one hundred twenty (120) day period shall again be
subject to the provisions of this Section 4.1.
Section 4.2 Costs. All reasonable costs and expenses incurred by any
seller in connection with a transfer under Section 4.1, including, without
limitation, all reasonable attorneys' fees, costs and disbursements and any
reasonable finders' fees or brokerage commissions, shall be allocated pro rata
among the stockholders transferring shares of Company Common Stock in such
transfer, with each bearing that portion of such costs and expenses equal to the
aggregate of such costs and expenses multiplied by a fraction, the numerator of
which is the amount of the gross proceeds received by such stockholder from such
transfer, and the denominator of which is the total amount of the gross proceeds
received by all stockholders from such transfer. Such costs and expenses shall
include the fees of no more than one counsel for Buyer, and no more than one
counsel for GenAmerica, GALIC and EIM collectively.
ARTICLE V
CERTAIN COVENANTS
Section 5.1 Actions Requiring Consent of Buyer. For so long as Buyer
and its Affiliates collectively continue to own (whether beneficially or of
record) shares of Company Common Stock representing at least 5% of the shares of
Company Common Stock outstanding as of the date hereof, the Company shall not
undertake the following actions without the prior written consent of Buyer which
shall not be unreasonably withheld or delayed: (i) enter into, or waive or
materially modify any provision of, any registration rights agreement except for
such of the foregoing as which would not be reasonably likely to materially
adversely affect the rights of
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Buyer or its Affiliates hereunder, in Buyer's reasonable determination, or (ii)
directly or indirectly redeem or repurchase any shares of Company Common Stock
owned by EIM or any Affiliated Stockholder unless such redemption or repurchase
is available to all shareholders of the Company for the same consideration and
on the same terms and conditions, including without limitation any open market
repurchase program, or, in the case of an Affiliated Stockholder who is an
individual, unless such redemption or repurchase is in connection with an
employee or director benefit plan in the ordinary course of business.
Section 5.2 Further Assurances. Each party hereto shall do and perform
or cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
Section 5.3 Additional Remedies. In case any one or more of the
covenants and/or agreements set forth in this Agreement shall have been breached
by any party hereto, the party or parties entitled to the benefit of such
covenants or agreements may proceed to protect and enforce their rights either
by proceeding in equity and/or by action at law, including, but not limited to,
an action for damages as a result of any breach; and/or an action for specific
performance of any such covenant or agreement contained in this Agreement,
and/or a temporary or permanent injunction, in any case without showing any
actual damage and without establishing, in the case of an equitable proceeding,
that the remedy at law is inadequate and without the need to post any bond or
other undertaking as a condition to obtaining preliminary injunctive relief. The
rights, powers and remedies of the parties under this Agreement are cumulative
and not exclusive of any other right, power or remedy which such parties may
have under any other agreement or law. No single or partial assertion or
exercise of any right, power or remedy of a party hereunder shall preclude any
other or further assertion or exercise thereof.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Termination. This Agreement shall terminate upon the
earlier to occur of (i) the sale of all of Buyer's shares of Company Common
Stock pursuant to a Public Offering effectuated pursuant to the Registration
Rights Agreement or pursuant to Rule 144 under the Securities Act, (ii) at the
time when Buyer, its Affiliates and any person who purchases shares of Company
Common Stock from Buyer in accordance with Section 6.7(ii) hereof own in the
aggregate fewer than 478,469 shares of Company Common Stock purchased pursuant
to the Stock Purchase Agreement (and Buyer, its Affiliates or such persons agree
to deliver to the Company, within 30 days after receipt of a written request
from the Company, a written certification of its respective ownership of such
shares of Company Common Stock, but the Company shall not make such request (a)
earlier than June 30, 2000 or (b) within 180 days after the date of any other
such request), or (iii) the completion of Buyer's purchase of all of the
outstanding shares of capital stock of GenAmerica from General American pursuant
to the General American Agreement.
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Section 6.2 Share Calculations. Unless otherwise specified, all share
calculations made pursuant to this Agreement shall be determined on a primary
(i.e., undiluted) basis.
Section 6.3 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each party hereto and delivered to the other parties. Copies of executed
counterparts transmitted by telecopy, telefax or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Section, provided receipt of copies of such counterparts is confirmed.
Section 6.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to the choice of law principles thereof, except for the validity of corporate
action of the parties hereto, which shall be governed by and construed in
accordance with the laws of the jurisdiction of incorporation or organization of
such party.
Section 6.5 Entire Agreement; Amendment; Waiver. This Agreement, and
the certificates, instruments and other documents delivered pursuant hereto,
contain the entire agreement among the parties hereto with respect to the
subject matter hereof and there are no agreements, understandings,
representations or warranties among the parties hereto other than those set
forth or referred to herein. This Agreement is not intended to confer upon any
person not a party hereto any rights or remedies hereunder.
Section 6.6 Notices. All notices and other communications hereunder shall be
sufficiently given for all purposes hereunder if in writing and delivered
personally, sent by documented overnight delivery service or, to the extent
receipt is confirmed, telecopy, telefax or other electronic transmission service
to the appropriate address or number as set forth below. Notices to the Company
shall be addressed to:
Reinsurance Group of America, Incorporated
0000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxx, Executive Vice President and
Chief Financial Officer
Telecopy: 000-000-0000
with copies to:
Reinsurance Group of America, Incorporated
c/o General American Life Insurance Company
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: 000-000-0000
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Xxxxx Xxxx XXX
Xxx Xxxxxxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attention: R. Xxxxxxx Xxxx, Esq.
Telecopy: 314-259-2020
Notices to Buyer or any of its Affiliates shall be addressed
to:
Metropolitan Life Insurance Company
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Treasurer
Telecopy: 000-000-0000
with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy: 000-000-0000
Notices to GenAmerica, GALIC and EIM shall be addressed to:
General American Life Insurance Company
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxxx
Telecopy: 000-000-0000
with a copy to:
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxx, Esq.
Telecopy: 000-000-0000
Each party may change the person, address and number to which notices
are to be sent by giving written notice of any such change in the manner
provided herein.
Section 6.7 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by any
party hereto without the prior written consent of the other parties, except that
Buyer may assign its rights hereunder without the consent of the other parties
hereto to (i) a Subsidiary or Affiliate of Buyer or (ii) a person who purchases
shares of Company Common Stock from Buyer other than in a Public Offering or
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other than pursuant to Rule 144 under the Securities Act, and who assumes the
obligations of Buyer hereunder pursuant to an agreement delivered to the Company
in form and substance reasonably satisfactory to the Company.
Section 6.8 Headings. The headings contained in this Agreement are
inserted for convenience of reference only and will not affect the meaning or
interpretation of this Agreement. All references to Sections, Articles or
Schedules contained herein mean Sections or Articles of or Schedules to this
Agreement unless otherwise stated.
Section 6.9 Amendments and Waivers. This Agreement may not be modified
or amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Each
party hereto may waive compliance by any other party hereto with any term or
provision hereof on the part of such other party hereto to be performed or
complied with only by an instrument in writing. The waiver by any party hereto
of a breach of any term or provision hereof shall not be construed as a waiver
of any subsequent breach.
Section 6.10 Severability. Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
Section 6.11 Registration Rights Agreement. GALIC acknowledges that it
is the Holder of a majority of the outstanding Registrable Securities (as
"Holder" and "Registrable Securities" are defined in the Registration Rights
Agreement dated as of April 15, 1993 between the Company and GALIC (the "GALIC
Registration Rights Agreement")), and GALIC hereby (i) consents to the Company's
execution and delivery of and performance under the Registration Rights
Agreement dated as of November 23, 1999 between the Company and Buyer (the
"Buyer Registration Rights Agreement") and (ii) waives any breaches at any time
under the GALIC Registration Rights Agreement resulting from the Company's
execution and delivery of or performance under the Buyer Registration Rights
Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by or on
behalf of each of the parties hereto as of the date first above written.
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice-President & Treasurer
GENAMERICA CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name:
Title:
GENERAL AMERICAN LIFE INSURANCE
COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name:
Title:
EQUITY INTERMEDIARY COMPANY
By: /s/ Xxxxxx X. XxXxxxxx
-----------------------------------------------
Name:
Title:
REINSURANCE GROUP OF AMERICA, INCORPORATED
By: /s/ Xxxx X. Xxx
-----------------------------------------------
Name:
Title:
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SCHEDULE 1
CAPITALIZATION OF THE COMPANY
75,000,000 shares of Company Common Stock authorized, with 45,151,264 shares of
Company Common Stock issued and outstanding and 1,117,320 shares of Company
Common Stock held by the Company in its treasury.
10,000,000 shares of Preferred Stock, par value $0.01 per share, authorized,
with no shares of Preferred Stock of the Company issued and outstanding.
Options to purchase 1,704,922 shares of Company Common Stock.
