EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of November
24, 2003, by and among REINSURANCE GROUP OF AMERICA, INCORPORATED, a Missouri
corporation (the "Company"), METLIFE, INC., a Delaware corporation ("MetLife"),
METROPOLITAN LIFE INSURANCE COMPANY, a New York life insurance company ("MLIC"),
GENERAL AMERICAN LIFE INSURANCE COMPANY, a Missouri insurance company ("GenAm")
and EQUITY INTERMEDIARY COMPANY, a Missouri corporation ("EIC").
WITNESSETH:
WHEREAS, the Company and MLIC, a wholly owned subsidiary of MetLife,
are parties to the Registration Rights Agreement, dated as of November 23, 1999
(the "MLIC Registration Rights Agreement"), pursuant to which the Company has
granted to MLIC certain registration and other rights with respect to the
Company's common stock, par value $0.01 per share;
WHEREAS, the Company and GenAm, a wholly owned subsidiary of MetLife,
are parties to the Registration Rights Agreement, dated as of April 15, 0000
(xxx "XxxXx Registration Rights Agreement"), pursuant to which the Company has
granted to GenAm certain registration and other rights with respect to the
Company's common stock, par value $0.01 per share;
WHEREAS, the Company has sold shares of its common stock, par value
$0.01 per share, in a public offering (the "2003 Public Offering") and each of
MetLife and EIC has purchased in the 2003 Public Offering 2,205,000 and 795,000
shares of common stock, respectively;
WHEREAS, in connection with the purchase of shares of common stock in
the 2003 Public Offering by MetLife and EIC, MetLife and the Company have been
negotiating to terminate the MLIC Registration Rights Agreement and the GenAm
Registration Rights Agreement in their entirety and replace them with a new
registration rights agreement as provided herein;
WHEREAS, the MLIC Registration Rights Agreement provides that it may
not be modified or amended except by an instrument in writing signed by the
party against whom enforcement of any such modification or amendment is sought,
and the GenAm Registration Rights Agreement provides that it may be amended by
the Company and holders of a majority of the Registrable Securities (as defined
thereunder only for purposes of this paragraph and the immediately following
paragraph); and
WHEREAS, EIC, a wholly-owned subsidiary of GenAm, is the holder of at
least a majority of the Registrable Securities under the GenAm Registration
Rights Agreement, and the Company and MLIC are parties to the MLIC Registration
Rights Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, 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 first 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, whether through stock ownership, contract or
otherwise.
"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.
"Company" shall have the meaning set forth in the first paragraph
hereof.
"Company Common Stock" shall mean shares of common stock, par value
$0.01 per share, of the Company.
"Confidential Information" shall have the meaning set forth in Section
9.12.
"Controlling persons" shall have the meaning set forth in Section 7.1.
"Counterpart" means a counterpart to this Agreement in the form of
Exhibit A, pursuant to the execution of which a person shall become bound by all
of the terms and conditions of this Agreement.
"Damages" shall have the meaning set forth in Section 7.1.
"Demand Notice" shall have the meaning set forth in Section 2.1.
"Demand Registration" shall have the meaning set forth in Section 2.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Filing Date" shall mean the date that is thirty (30) days after the
date of the Demand Notice.
"GenAm" shall have the meaning set forth in the first paragraph hereof.
"GenAm Registration Rights Agreement" shall have the meaning set forth
in the third paragraph hereof.
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"MetLife" shall have the meaning set forth in the first paragraph
hereof and, with respect to any Registrable Securities transferred on or after
the date hereof in accordance with Section 9.7, shall also have the meaning set
forth in Section 9.7.
"MLIC" shall have the meaning set forth in the first paragraph hereof.
"MLIC Registration Rights Agreement" shall have the meaning set forth
in the second paragraph hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"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.
"Piggyback Registration" shall have the meaning set forth in Section
3.1.
"prospectus" means the prospectus included in a registration statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
The terms "register, "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement by the SEC.
"Registrable Securities" shall mean (i) any shares of Company Common
Stock held by MetLife or any of its Affiliates (other than directors and
officers of MetLife or its Affiliates) at the date hereof or (ii) any shares of
Company Common Stock that MetLife or any of its Affiliates (other than directors
and officers of MetLife or its Affiliates) may acquire after the date hereof or
(iii) any shares of Company Common Stock that any permitted transferee acquires
in connection with such transfer or may acquire after the date of such transfer,
other than, in the case of either clause (i) or (ii), shares held on behalf of
any separate or managed account or by any such Affiliate acting as
broker-dealer, investment advisor, trustee or other fiduciary, it being the
intent that "Registrable Securities" shall only include shares held by MetLife
or such Affiliates for their own account; provided, that a Registrable Security
ceases to be a Registrable Security when (i) it is registered under the
Securities Act and disposed of in accordance with the registration statement
covering it, (ii) it is sold or transferred in accordance with the requirements
of Rule 144 (or similar provisions then in effect) promulgated by the SEC under
the Securities Act ("Rule 144"), or (iii) it is eligible to be sold or
transferred by MetLife or any of its Affiliates or any of their respective
permitted transferees under Rule 144 without being subject to any holding period
or volume limitations thereunder.
"Registration Expenses" shall have the meaning set forth in Section
6.1.
"SEC" shall mean the United States Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
"Shelf Registration Statement" means a registration statement of the
Company on Form S-3 or any other appropriate form under the Securities Act
including any prospectus included therein, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or deemed to be incorporated by
reference in such registration statement, for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 promulgated under the
Securities Act (or similar provisions then in effect) that (i) covers all or any
part of Registrable Securities pursuant to the provisions of this Agreement, and
(ii) sets forth a plan of distribution as determined by MetLife in accordance
with Section 2.2.
"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.
"Termination Date" shall have the meaning set forth in Section 2.1.
ARTICLE II
DEMAND REGISTRATION
Section 2.1. Request for Shelf Registration. MetLife may make up to six
(6) written requests to the Company (each, a "Demand Notice") that the Company
register the offer and sale of all or any part of the Registrable Securities
under the Securities Act (each, a "Demand Registration"). Upon receipt of the
Demand Notice, the Company shall: (i) prepare and file with the SEC on or prior
to the Filing Date a Shelf Registration Statement, (ii) use its reasonable best
efforts to cause such Shelf Registration Statement to become effective and (iii)
use its reasonable best efforts to keep such Shelf Registration Statement
continuously effective until the earlier of (A) the date when all Registrable
Securities covered by the Shelf Registration Statement have been sold and (B)
the date on which the Registrable Securities covered by the Shelf Registration
Statement are eligible to be sold or transferred under Rule 144 without being
subject to any holding period or volume limitations thereunder (provided that
MetLife has received an opinion of counsel to the Company who is reasonably
acceptable to MetLife covering the matters referred to in this clause (B) and
such opinion is reasonably satisfactory to MetLife), and MetLife and its
Affiliates (other than officers and directors of MetLife and those of its
Affiliates) do not own in excess of 10% of the Company Common Stock (the
"Termination Date").
Section 2.2. Selection of Plan of Distribution; Underwriters. The
offering of such Registrable Securities pursuant to the Shelf Registration
Statement shall be in the form of either (x) an underwritten offering or (y)
through the use of brokers or in privately negotiated transactions, in either
case as selected by MetLife within no more than five (5) Business Days following
the date of the Demand Notice. In the event that MetLife elects that the
offering be an underwritten offering, MetLife shall also select one or more
nationally recognized firms of investment bankers that is or are reasonably
acceptable to the Company, to act as the lead managing underwriter or
underwriters in connection with such offering and shall select any additional
investment bankers or managers to be used in connection with such offering. The
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Company and MetLife shall enter into a customary underwriting agreement with
such underwriter(s) (and MetLife may at its option require that the
representations, warranties and covenants of the Company to or for the benefit
of the underwriter(s) also be made for the benefit of MetLife).
Section 2.3. Permitted Delay in Filing and Suspensions of Sales.
Notwithstanding the foregoing, if the Company determines in good faith that such
registration, or further sales under an effective Shelf Registration Statement,
will (1) have a material detrimental effect, as reasonably determined in good
faith by the Board of Directors of the Company, on the completion of a
transaction currently being negotiated or a plan currently being considered by
the Board of Directors of the Company that would, if completed, be material to
the Company and its Subsidiaries taken as a whole at the time the right to delay
or withhold efforts or suspend sales is exercised (whether or not a final
decision has been made to undertake such transaction or plan), or (2) involve
initial or continuing disclosure obligations that are not in the best interests
of the Company's stockholders, as reasonably determined in good faith by the
Board of Directors of the Company, then upon advance written notice to MetLife
(a) the Company may delay in filing the Shelf Registration Statement and may
withhold efforts to cause the Shelf Registration Statement to become effective,
but not more than once and for not more than thirty (30) days, or (b) the
Company may request MetLife to, and MetLife shall, suspend any further sales
under the Shelf Registration Statement (or under a registration statement of the
Company which includes Registrable Securities pursuant to Section 3.1), but not
more than twice in any two-year period and for not more than thirty (30) days
each. Notwithstanding anything to the contrary that may be contained in this
Agreement, if the Company exercises its right to delay or to withhold efforts or
suspend sales, the Company shall use its reasonable best efforts to have the
Shelf Registration Statement or such other registration statement filed or
declared effective, or amended (or otherwise bringing the Shelf Registration
Statement or such other registration statement current with appropriate Exchange
Act filings), as the case may be, at the earliest reasonably practicable date
after the Company's reasons for delaying or withholding efforts or suspending
sales are no longer applicable (but subject to the time limitations in the
immediately preceding sentence).
ARTICLE III
PIGGYBACK REGISTRATIONS
Section 3.1. Right to Piggyback. Whenever the Company proposes to
register (including on behalf of a selling stockholder) any shares of Company
Common Stock under the Securities Act (except for the registration of shares of
Company Common Stock to be offered pursuant to an employee benefit plan on Form
S-8 or pursuant to a registration made on Form S-4, or any successor forms or
any form that does not include substantially the same information, other than
information relating to selling shareholders or their plan of distribution, that
would be required to be included in a registration statement covering the sale
of the Registrable Securities) at any time other than pursuant to a Demand
Registration, and the registration form to be used may be used for the
registration of the Registrable Securities (a "Piggyback Registration"), it will
so notify MetLife in writing no later than the earlier to occur of (i) the tenth
(10th) day following the Company's receipt of notice of exercise of other demand
registration rights, or (ii) thirty (30) days prior to the anticipated date of
filing. Subject to the provisions of Section 3.2, the Company will include in
the Piggyback Registration all Registrable Securities with respect to which the
Company has received written requests for inclusion from MetLife within ten (10)
Business Days after MetLife's receipt of the Company's notice. MetLife may
withdraw all or any part of
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the Registrable Securities from a Piggyback Registration at any time before five
(5) Business Days prior to the effective date of the Piggyback Registration. The
Company, MetLife and any person who hereafter become entitled to register its
securities in a registration initiated by the Company shall sell their
securities on the same terms and conditions.
Section 3.2. Priority on Piggyback Registrations. If the managing
underwriter advises the Company in writing (a copy of which shall be provided to
MetLife) that a limitation on the total number of securities to be included in
the Piggyback Registration is advisable in order to avoid a likely material and
adverse effect on the success of the offering, the Company will so advise
MetLife and will include the securities in the registration in the following
order of priority: (i) first, all securities the Company or the holder for whom
the Company is effecting the registration, as the case may be, proposes to sell;
and (ii) second, any other securities requested to be included in the
registration (including Registrable Securities), allocated among the holders of
such securities in proportion (as nearly as practicable) to the number of
securities which each holder requested to be included in the Piggyback
Registration.
Section 3.3. Underwriters. If any Piggyback Registration is an
underwritten offering, the Company and MetLife shall enter into a customary
underwriting agreement with the underwriter(s) administering the offering.
MetLife may not participate in any Piggyback Registration without (a) agreeing
to sell securities on the basis provided in the underwriting arrangements
approved by the Company, and (b) promptly completing, executing and delivering
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required by the underwriting arrangements.
ARTICLE IV
RESTRICTIONS ON PUBLIC SALES
Section 4.1. Restrictions on Public Sales. The Company shall agree not
to make any public sale or distribution of its common stock, or any securities
convertible into or exchangeable or exercisable for its common stock, including
a sale under Regulation D under the Securities Act or under any other exemption
of the Securities Act (except pursuant to registrations on Forms S-8 or S-4 or
any successor form), during the two (2) days prior to and the 180 days after the
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration unless the managing underwriter(s) agrees otherwise.
ARTICLE V
REGISTRATION PROCEDURES
Section 5.1. Obligations of the Company. Whenever the Company is
required to effect or cause the registration of the offer and sale of
Registrable Securities pursuant to Article II or Article III, the Company will
use its reasonable best efforts to effect or cause the registration of the offer
and sale of such Registrable Securities in accordance with the intended
method(s) of disposition thereof as quickly as reasonably practicable, and in
connection with any such request the Company shall:
(a) prepare and file with the SEC a registration statement on the
appropriate form and use its reasonable best efforts to cause the registration
statement to become effective. A
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reasonable time before filing a registration statement or prospectus or before
filing any amendments or supplements thereto, the Company will furnish to
MetLife and MetLife's counsel copies of all documents proposed to be filed for
their review, comment and approval, which comment or approval shall be delivered
within a reasonable time after receipt;
(b) immediately notify MetLife of any stop order threatened or issued
by the SEC and use its reasonable best efforts to prevent the entry of a stop
order or, if entered, to have it rescinded or otherwise removed;
(c) subject to Section 2.3, prepare and file with the SEC such
amendments, supplements and post-effective amendments to the registration
statement and the corresponding prospectus necessary to keep the registration
statement continuously effective until (x) the Termination Date in the case of a
Shelf Registration Statement or (y) otherwise for 180 days or such shorter
period as may be required to sell all Registrable Securities covered by the
registration statement; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by the registration
statement during each period in accordance with MetLife's intended method of
disposition as set forth in the registration statement;
(d) furnish to MetLife a sufficient number of copies of the
registration statement, each amendment and supplement thereto (in each case
including all exhibits), the corresponding prospectus (including each
preliminary prospectus), and such other documents as MetLife may reasonably
request to facilitate the disposition of Registrable Securities;
(e) register or qualify the Registrable Securities under securities or
blue sky laws of jurisdictions in the United States as MetLife requests and do
any and all other reasonable acts and things that may be necessary or advisable
to enable MetLife to consummate the disposition of its Registrable Securities in
such jurisdiction, provided that the Company shall not be required to subject
itself to service of process or taxation in such jurisdictions;
(f) notify MetLife of any event as a result of which the prospectus or
any document incorporated therein by reference contains an untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which such
statements were made, and, subject to Section 2.3, prepare a supplement or
amendment to the prospectus or any such document incorporated therein so that
thereafter the prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading in light of the circumstances under which such statements were
made;
(g) cause all registered Registrable Securities to be listed on each
securities exchange, if any, on which similar securities issued by the Company
are then listed;
(h) provide an institutional transfer agent and registrar and a CUSIP
number for all Registrable Securities on or before the effective date of the
registration statement;
(i) enter into such reasonably customary agreements (including an
underwriting agreement in reasonably customary form) and take all other actions
in connection with those agreements as MetLife or the underwriter(s), if any,
reasonably request to expedite or facilitate the disposition of the Registrable
Securities (and MetLife may at its option require that the representations,
warranties and covenants of the Company to or for the benefit of the
underwriter(s) also be made for the benefit of MetLife);
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(j) make reasonably available for inspection by MetLife, any
underwriter participating in any disposition pursuant to the registration
statement, and any attorney, accountant or other agent of MetLife or such
underwriter, all financial and other records, pertinent corporate documents, and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by MetLife or such
underwriter, attorney, accountant or other agent in connection with the
registration statement; provided that an appropriate confidentiality agreement
reasonably satisfactory to the Company is executed by MetLife and such
underwriter, attorney, accountant or other agent;
(k) in connection with any underwritten offering, obtain a "cold
comfort" letter from the Company's independent public accountants in customary
form and covering those matters customarily covered by "cold comfort" letters as
MetLife or the managing underwriter reasonably requests, addressed to MetLife,
the Company and the underwriter(s);
(l) in connection with any underwritten offering, furnish, at the
request of MetLife or any underwriter(s) of the offering, an opinion of counsel
representing the Company for the purposes of the registration, in the form and
substance customarily given to underwriters in an underwritten public offering
and reasonably satisfactory to counsel representing MetLife and the
underwriter(s) of the offering, addressed to MetLife and the underwriter(s);
(m) comply with all applicable rules and regulations of the SEC, and,
if applicable, make available to its security holders, no later than 90 days
after the end of the 12-month period beginning with the first day of the
Company's first quarter commencing after the effective date of a registration
statement, an earnings statement complying with the provisions of Section 11(a)
and Rule 158 of the Securities Act and covering the period of at least twelve
(12) months, but not more than eighteen (18) months, beginning with the first
month after the effective date of the registration statement;
(n) cooperate with MetLife and each underwriter participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;
(o) in connection with any underwritten offering, participate, to the
extent reasonably requested by MetLife or the managing underwriter or
underwriters for the offering, in customary efforts to sell the securities under
the offering, including, without limitation, participating in "road shows,"
unless the Company demonstrates to MetLife's reasonable satisfaction that such
participation will materially interfere with the management of the Company's
business; and
(p) take all other steps reasonably necessary to effect the
registration of the Registrable Securities contemplated hereby.
Section 5.2. MetLife Information. In the event of any registration by
the Company, the Company may request from time to time that MetLife furnish to
the Company information regarding MetLife and its affiliates and associates and
the distribution of the securities subject to the registration, and MetLife
shall furnish all such information reasonably requested by the Company.
Section 5.3. Notice by MetLife. Whenever MetLife has requested that any
Registrable Securities be registered pursuant to this Agreement, MetLife shall
notify the Company, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of
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the happening of any event which to its knowledge relates to matters concerning
MetLife or its Affiliates or associates, as a result of which the prospectus
included in the registration statement contains an untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
Section 5.4. "Market Stand-Off" Agreement. MetLife, if reasonably
requested in writing by the managing underwriter(s) of an underwritten public
offering by the Company of the Company's common stock, or securities convertible
into or exchangeable or exercisable for its common stock, agrees not to sell,
make any short sale of, loan, grant any option for the purchase of, or otherwise
transfer or dispose of, directly or indirectly, any Registrable Securities owned
by MetLife (other than (x) any transaction on behalf of any separate or managed
account or any transaction by MetLife or any subsidiary of MetLife acting as
broker-dealer, investment advisor, trustee or other fiduciary in the ordinary
course of its business (collectively, a "Fiduciary Affiliate"), (y) to a
Subsidiary or Affiliate of MetLife, or (z) Registrable Securities included in
such public offering) without the prior written consent of such managing
underwriter(s) during a period of up to two (2) days prior to and 180 days
following the effective date of such underwritten registration of the Company's
securities, but only to the extent that Registrable Securities owned by MetLife
have not been requested to be included in such underwritten registration
following the Company's compliance with Article III. Such agreement shall be in
writing in form reasonably satisfactory to such managing underwriter(s), and may
be included in the underwriting agreement. The Company may impose stop-transfer
instructions with respect to the securities subject to the foregoing restriction
until the end of the required stand-off period and shall lift such stop-transfer
restrictions immediately upon the end of such period.
ARTICLE VI
REGISTRATION EXPENSES
Section 6.1. Generally. All Registration Expenses incident to the
Company's performance of or compliance with this Agreement shall be paid by the
Company. The term "Registration Expenses" includes, without limitation, all
registration filing fees, professional fees and other expenses of the Company's
compliance with federal and state securities laws (including fees and
disbursements of counsel for the underwriter(s) in connection with state
securities law qualifications and registrations), printing expenses, messenger,
telephone and delivery expenses; fees and disbursements of counsel for the
Company and reasonable fees and disbursements of one counsel for MetLife; fees
and disbursements of all independent certified public accountants (including the
expenses relating to any audit or "cold comfort" letters required by or incident
to the performance of the obligations contemplated by this Agreement); fees and
expenses of the underwriter(s) (excluding discounts and commissions) customarily
borne by the issuer in transactions of that kind; fees and expenses of any
special experts retained by the Company at the reasonable request of the
managing underwriter(s) in connection with the registration and as shall be
customary in transactions of that kind; and applicable stock exchange and NASD
registration and filing fees. The term "Registration Expenses" does not include
MetLife's internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
any fees or disbursements of any other counsel for MetLife, or the underwriting
discounts or commissions or transfer taxes applicable to the Registrable
Securities, all of which shall be paid by MetLife.
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ARTICLE VII
INDEMNIFICATION
Section 7.1. Indemnification by the Company. In the event of any
registration of Registrable Securities under the Securities Act pursuant to this
Agreement, to the fullest extent permitted by law, the Company agrees to
indemnify MetLife, its officers, directors, trustees, partners, employees,
advisors and agents, and each person who controls MetLife (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act), together
with all officers, directors, trustees, partners, employees, advisors and agents
of such controlling person (collectively, "Controlling persons"), against all
losses, claims, damages, liabilities, attorneys' fees, costs and expenses and
expenses of investigating and defending any claims (collectively, "Damages")
that arise out of, or are based upon, any untrue or allegedly untrue statement
of a material fact contained in any registration statement under which such
Registrable Securities were registered under the Securities Act or any
prospectus or preliminary prospectus contained therein or any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading in light of
the circumstances under which such statements were made, except to the extent
the untrue statement or omission resulted from information that MetLife
furnished in writing to the Company expressly for use therein and except to the
extent that the Company advised MetLife not to dispose of any Registrable
Securities pursuant to Section 2.3 hereof and MetLife disregarded such advice.
In connection with a firm or best efforts underwritten offering, to the extent
customarily required by the managing underwriter, the Company will indemnify the
underwriters, their officers, directors, trustees, partners, employees, advisors
and agents, and each person who controls the underwriters (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act), and each of
the Underwriter's Controlling persons, to the extent customary in such
agreements.
Section 7.2. Indemnification by MetLife. In the event of any
registration of Registrable Securities under the Securities Act pursuant to this
Agreement, to the fullest extent permitted by law, MetLife agrees to indemnify
the Company, its officers, directors, trustees, partners, employees, advisors
and agents, and each person who controls the Company (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act), and each of
the Company's Controlling persons, against any Damages that arise out of, or are
based upon any untrue or allegedly untrue statement of a material fact contained
in any registration statement under which such Registrable Securities were
registered under the Securities Act or any prospectus or preliminary prospectus
contained therein or any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements contained
therein not misleading in light of the circumstances under which such statements
were made, but only to the extent that the untrue statement or omission is
contained in or omitted from any information MetLife furnished in writing to the
Company expressly for use therein and only in an amount not exceeding the net
proceeds received by MetLife with respect to securities sold pursuant to such
registration statement and except to the extent that the Company advised MetLife
not to dispose of any Registrable Securities pursuant to Section 2.3 hereof and
MetLife disregarded such advice. In connection with a firm or best efforts
underwritten offering, to the extent customarily required by the managing
underwriter, MetLife will indemnify the underwriters, their officers, directors,
trustees, partners, employees, advisors and agents, and each person who controls
the underwriters (within the meaning of Section 15 of the Securities
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Act or Section 20 of the Exchange Act), and each of the underwriters'
Controlling persons, to the extent customary in such agreements.
Section 7.3. Indemnification Proceedings. Any person entitled to
indemnification under this Agreement will (i) give prompt (but in no event more
than thirty (30) days') notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided, however, that failure to so
promptly notify the indemnifying party shall not relieve the indemnifying party
from liability except to the extent the indemnifying party is prejudiced
thereby) and (ii) unless in the indemnified party's reasonable judgment a
conflict of interest may exist between the indemnified and indemnifying parties
with respect to the claim, permit the indemnifying party, at its expense, to
assume the defense of the claim with counsel reasonably satisfactory to the
indemnified party. If the indemnifying party does not assume the defense, the
indemnifying party will not be liable for any compromise or settlement made
without its consent or judgment consented to without its consent, but any such
consent shall not be unreasonably withheld. An indemnifying party who is not
entitled to or elects not to assume the defense of a claim will not be under an
obligation to pay the reasonable fees and expenses of more than one counsel for
all parties indemnified by the indemnifying party with respect to the claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between the indemnified party and any other indemnified party
with respect to the claim, in which event the indemnifying party shall be
obligated to pay the reasonable fees and expenses of no more than one additional
counsel for the indemnified parties. Notwithstanding anything to the contrary
that may be contained in this Section 7.3, the indemnifying party shall not,
without the indemnified party's prior written consent, which consent shall not
be unreasonably withheld, settle or compromise any claim or consent to the entry
of any judgment in respect thereof which imposes any future obligation on the
indemnified party or which does not include, as an unconditional term thereof,
the giving by the claimant or plaintiff to the indemnified party, a release from
all liability in respect of such claim.
Section 7.4. Contribution. If the indemnification provided for in
Sections 7.1 or 7.2 is unavailable to an indemnified party in respect of any
Damages referred to therein, then each indemnifying party thereunder shall
contribute to the amount paid or payable by such indemnified party as a result
of such Damages in such proportion as is appropriate to reflect the relative
fault of and relative benefit to the Company and MetLife in connection with the
statements or omissions that resulted in such Damages, as well as any other
relevant equitable considerations. The relative fault of the Company and MetLife
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
MetLife and the parties' relative intent and knowledge. The parties hereto agree
that it would not be just and equitable if contribution pursuant to this Section
7.4 were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in the
immediately preceding sentence. Notwithstanding anything herein to the contrary,
MetLife shall not be required to contribute any amount in excess of the amount
by which the net proceeds of the offering (before deducting expenses, if any)
received by MetLife exceeds the amount of any Damages that MetLife has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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ARTICLE VIII
SECURITIES ACT AND EXCHANGE ACT FILINGS
Section 8.1. Securities Act and Exchange Act Filings. The Company
covenants that it will promptly file all documents required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
promulgated by the SEC thereunder, including, without limitation, pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, and it will take such
further action as MetLife reasonably may request, all to the extent required
from time to time, so that the Company will qualify for registration on Form S-3
and to enable MetLife to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, or (ii) any similar rule or regulation hereafter
promulgated by the SEC. Upon the request of MetLife, the Company will deliver to
MetLife a written statement as to whether it has complied with Rule 144's or any
successor rule's requirements.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Recapitalizations, Exchanges, etc. Notwithstanding
anything to the contrary that may be contained in this Agreement, the provisions
of this Agreement shall apply to the full extent set forth herein with respect
to (i) any shares of Company Common Stock, now or hereafter authorized to be
issued, (ii) any and all shares of voting common stock of the Company into which
the shares of Company Common Stock are converted, exchanged or substituted in
any recapitalization or other capital reorganization by the Company and (iii)
any and all securities of any kind whatsoever of the Company or any successor or
assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued on or after the date hereof in respect of, in
conversion of, in exchange for or in substitution of, the shares of Company
Common Stock, and shall be appropriately adjusted for any stock dividends, or
other distributions, stock splits or reverse stock splits, combinations,
recapitalizations mergers, consolidations, exchange offers or other
reorganizations occurring after the date hereof.
Section 9.2. 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 party. 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 9.3. 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 by 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 9.4. Entire Agreement. This Agreement, and the certificates,
instruments and other documents delivered pursuant hereto, contain the entire
agreement between the parties hereto with respect to the subject matter hereof
and there are no agreements, understandings,
12
representations or warranties between 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 9.5. 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. If sent via
overnight delivery service, notice is deemed to have been received on the next
succeeding Business Day.
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
0000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: 000-000-0000
Xxxxx Xxxx LLP
One Metropolitan Square
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attention: R. Xxxxxxx Xxxx, Esq.
Telecopy: 314-259-2020
Notices to MetLife shall be addressed to:
MetLife, Inc.
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopy: 000-000-0000
13
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy: 000-000-0000
Either 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 9.6. 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 either
party hereto without the prior written consent of the other party, except that
MetLife may assign its rights hereunder to a Subsidiary or Affiliate of MetLife
(and such Subsidiary or Affiliate shall execute a Counterpart and deliver same
to the Company prior to or at the time of assignment) or in accordance with
Section 9.7 without the consent of the Company.
Section 9.7. Transfer of Registration Rights. Provided that the Company
is given written notice by MetLife prior to or at the time of such transfer
stating the name and address of the transferee and identifying the securities
with respect to which the rights under this Agreement are being assigned, the
registration rights under this Agreement may be transferred with the transfer of
Registrable Securities. Notwithstanding the foregoing, if such transfer is
subject to covenants, agreements or other undertakings restricting
transferability thereof, the registration rights under this Agreement shall not
be transferred in connection with such transfer unless such transfer complies
with all such covenants, agreements and other undertakings. In all cases, such
registration rights shall not be transferred unless the transferee thereof
executes a Counterpart and delivers same to the Company. Upon a transfer in
compliance with this Section 9.7, all references in this Agreement to "MetLife"
shall be deemed to refer in addition to any transferee hereunder with respect to
such transferred Registrable Securities. Notwithstanding anything to the
contrary that may be contained in this Agreement, in the event that MetLife does
not transfer all of the Registrable Securities or transfers the Registrable
Securities to more than one transferee, the holders of the Registrable
Securities thereafter shall be entitled to take any action hereunder by majority
vote of all Registrable Securities or by majority vote of the Registrable
Securities which are the subject of such registration, as appropriate.
Section 9.8. 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 in this Agreement to Sections,
Articles or Exhibits mean Sections or Articles of or Exhibits to this Agreement
unless otherwise stated.
Section 9.9. 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. Either
party hereto may waive compliance by the 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.
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Section 9.10. 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 9.11. No Inconsistent Agreements. The Company represents and
warrants that it has not granted to any person the right to request or require
the Company to register any securities issued by the Company other than pursuant
to this Agreement, the MLIC Registration Rights Agreement and the GenAm
Registration Rights Agreement. Except with the prior written consent of MetLife,
the Company will not enter into any agreement with respect to its securities
that shall grant to any person registration rights that in any way conflict with
or are prior in right to the rights provided under this Agreement.
Section 9.12. Confidentiality. Notwithstanding anything to the contrary
in this Agreement, MetLife may not use any Confidential Information received by
it from the Company pursuant to this Agreement in violation of the Exchange Act
or reproduce, disclose or disseminate such information to any person (other than
its directors, officers, employees, financial advisors, legal advisors,
accountants, consultants and other persons having a reasonable reason for
knowing the contents of such information and who agree for the benefit of the
Company (in writing, with respect to financial advisors, legal advisors,
accountants and consultants) to be bound hereby), unless such information is (i)
available to the public generally (other than by the recipient in violation of
any confidentiality agreement or obligation with the Company), (ii) available to
MetLife or such recipient on a non-confidential basis from a third party that is
not, to MetLife's or such recipient's knowledge, bound by any other
confidentiality agreement or obligation with the Company or (iii) required to be
disclosed by MetLife or such recipient by a governmental body or regulatory
agency or by law. "Confidential Information" shall mean only the following
information: (i) confidential or proprietary information of the Company supplied
by or on behalf of the Company which MetLife requested in writing to the Company
pursuant to this Agreement and (ii) the fact that the Company requested that
MetLife suspend further sales pursuant to Section 2.3. Notwithstanding anything
to the contrary in this Agreement, MetLife and the Company agree that the
Company shall not furnish to MetLife any of its confidential or proprietary
information, including without limitation, in advance of the filing of any
registration statement (including the Shelf Registration Statement) or
prospectus or any amendment or supplement thereof, except upon receipt of a
written request from MetLife.
Section 9.13. Effectiveness; Termination. The Company, MetLife, MLIC ,
GenAm and EIC agree that upon execution of this Agreement, the MLIC Registration
Rights Agreement and the GenAm Registration Rights Agreement will be terminated
in their entirety and of no further force and effect. This Agreement shall
expire, and the rights and obligations of the parties shall terminate, at such
time as MetLife (together with its Affiliates, other than Fiduciary Affiliates)
no longer beneficially owns in excess of 5% of the outstanding Company Common
Stock.
15
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.
Reinsurance Group of America, Incorporated
By: /s/ Xxxx X. Xxx
-----------------------------------------
Name: Xxxx X. Xxx
Title: Executive Vice President and
Chief Financial Officer
MetLife, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Treasurer
Metropolitan Life Insurance Company
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Treasurer
General American Life Insurance Company
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President and Treasurer
Equity Intermediary Company
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Director, Vice President and Treasurer
16
EXHIBIT A TO REGISTRATION RIGHTS AGREEMENT
COUNTERPART
THIS INSTRUMENT forms part of the Registration Rights Agreement (the
"Agreement"), dated as of November [ ], 2003, by and among REINSURANCE GROUP OF
AMERICA, INCORPORATED, a Missouri corporation (the "Company"), METLIFE, INC., a
Delaware corporation, METROPOLITAN LIFE INSURANCE COMPANY, a New York life
insurance company, GENERAL AMERICAN LIFE INSURANCE COMPANY, a Missouri life
insurance company, and EQUITY INTERMEDIARY COMPANY, a Missouri corporation,
which Agreement permits execution (including by facsimile) by counterpart. The
undersigned hereby acknowledges having received a copy of the Agreement (which
is annexed hereto as Schedule I) and having read the Agreement in its entirety,
and for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound, hereby agrees that the
terms and conditions of the Agreement binding upon and inuring to the benefit of
MetLife shall be binding upon and inure to the benefit of the undersigned and
its successors and permitted assigns as if it were the original MetLife
thereunder.
IN WITNESS WHEREOF, the undersigned has executed this instrument this
___ day of ____________, ___.
-----------------------------------
(Signature of Transferee)
-----------------------------------
(Name in Block Letters)
