-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HeoxGoN2pCAxYr+rVx4GlrjIs4TMexJjZXsasUakZQ/5x+BABcoac3g+qginiiu7 JqLx2txWc82gwRbykwrmsw== 0000950123-99-010690.txt : 19991206 0000950123-99-010690.hdr.sgml : 19991206 ACCESSION NUMBER: 0000950123-99-010690 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19991203 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: REINSURANCE GROUP OF AMERICA INC CENTRAL INDEX KEY: 0000898174 STANDARD INDUSTRIAL CLASSIFICATION: ACCIDENT & HEALTH INSURANCE [6321] IRS NUMBER: 431627032 STATE OF INCORPORATION: MO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-45137 FILM NUMBER: 99768385 BUSINESS ADDRESS: STREET 1: 1370 TIMBERLAKE MANOR PARKWAY CITY: CHESTERFIELD STATE: MO ZIP: 63017 BUSINESS PHONE: 6367367000 MAIL ADDRESS: STREET 1: 1370 TIMBERLAKE MANOR PARKWAY CITY: CHESTERFIELD STATE: MD ZIP: 63017-6039 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: METROPOLITAN LIFE INSURANCE CO/NY CENTRAL INDEX KEY: 0000728618 STANDARD INDUSTRIAL CLASSIFICATION: INSURANCE AGENTS BROKERS & SERVICES [6411] IRS NUMBER: 135581829 STATE OF INCORPORATION: NY FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: ONE MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10010 BUSINESS PHONE: 2125785914 MAIL ADDRESS: STREET 1: ONE MADISON AVENUE LAW DEPARTMENT CITY: NEW YORK STATE: NY ZIP: 10010-3690 SC 13D 1 SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 Reinsurance Group of America, Incorporated (Name of Issuer) Common Stock, Par Value $.01 Per Share (Title of Class of Securities) 759351 10 9 (CUSIP Number) Dorothy L. Murray Metropolitan Life Insurance Company 4100 Boy Scout Blvd. Tampa, FL 33607 (813) 801-2063 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies of all notices should be sent to: Linda E. Ransom, Esq. Dewey Ballantine LLP 1301 Avenue of the Americas New York, NY 10019-6092 (212) 259-8000 November 23, 1999 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box / /. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 SCHEDULE 13D - ---------------------- ----------------------------- CUSIP No. 759351 10 9 Page 2 of 11 Pages - ---------------------- ----------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Metropolitan Life Insurance Company 13-5581829 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 4,784,689* SHARES -------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 EACH -------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 4,784,689* -------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,784,689* - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6%* - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IC - -------------------------------------------------------------------------------- * See Items 3, 4 and 5 below. 3 Item 1. Security and Issuer. This Statement relates to the common stock, par value of $.01 per share (the "Shares"), of Reinsurance Group of America, Incorporated, a Missouri corporation ("RGA"). The address of the principal executive offices of RGA is 1370 Timberlake Manor Parkway, Chesterfield, Missouri 63017. Item 2. Identity and Background. (a) through (c) and (f). This Statement is filed on behalf of Metropolitan Life Insurance Company ("MetLife"). MetLife, a mutual life insurance company, is a New York corporation with its principal office and business at One Madison Avenue, New York, NY 10010. MetLife is not controlled by any person or persons. Set forth on Schedule A to this Statement, and incorporated herein by reference, is the name, business address, present principal occupation or employment and citizenship of each director and executive officer of MetLife. (d) During the last five years, neither MetLife nor any of its executive officers or directors has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the last five years, neither MetLife nor any of its executive officers or directors has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or other Consideration. Using $125,000,000.13 of working capital, MetLife purchased 4,784,689 Shares pursuant to a Stock Purchase Agreement, dated as of November 23, 1999 (the "RGA Agreement"), by and between RGA and MetLife, as described in Item 6 below. See also Item 4 below. Item 4. Purpose of Transaction. MetLife has purchased the Shares to which this Statement relates in order to provide RGA with an equity infusion for general corporate purposes. Upon the terms and subject to the conditions set forth in the Stock Purchase Agreement, dated as of August 26, 1999, as amended (the "General American Agreement"), by and between General American Mutual Holding Company, a Missouri mutual insurance holding company ("General American"), and MetLife, General American agreed to sell to MetLife, and MetLife agreed to purchase from General American, all of the issued and outstanding shares of capital stock of GenAmerica Corporation, a Missouri corporation ("GenAmerica"), for a purchase price of $1,200,000,000, subject to adjustment Page 3 of 11 Pages 4 as provided in the General American Agreement. Prior to MetLife's purchase of the Shares to which this Statement relates, GenAmerica was the beneficial owner of approximately 53% of the outstanding Shares, according to RGA's Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1999, and, upon completion of the acquisition of GenAmerica, MetLife will indirectly own such Shares. Such Shares are not included in Items 5(a) and (b) below because the acquisition of GenAmerica has not yet been completed. From time to time, as market conditions warrant, MetLife may acquire additional securities or dispose of securities of RGA. Except as contemplated by the RGA Agreement or as set forth in the General American Agreement, MetLife has no present plans or proposals which relate to or would result in any of the following: (a) The acquisition of additional securities or the disposition of securities of RGA; (b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving RGA or any of its subsidiaries; (c) A sale or transfer of a material amount of assets of RGA or of any of its subsidiaries; (d) Any change in the present board of directors or management of RGA, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board of directors; (e) Any material change in the present capitalization or dividend policy of RGA; (f) Any other material change in RGA's business or corporate structure; (g) Changes in RGA's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of RGA by any person; (h) Causing a class of securities of RGA to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) A class of equity securities of RGA becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (j) Any action similar to any of those enumerated above. The descriptions of the RGA Agreement, the General American Agreement and the transactions contemplated thereby set forth in this Statement are qualified in their entirety by reference to the RGA Agreement and the General American Agreement Page 4 of 11 Pages 5 included as Exhibits 1 and 2, respectively, to this Statement, each of which is incorporated herein in its entirety by reference. Item 5. Interest in Securities of the Issuer. (a) and (b). As of November 23, 1999, MetLife beneficially owned 4,784,689 Shares, or approximately 9.6 percent of the outstanding Shares. Such percentage amount is based upon the number of Shares issued and outstanding as of October 29, 1999, as described in RGA's Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1999, and assumes (as represented by RGA in the RGA Agreement) that the source of the Shares to which this Statement relates are treasury Shares or authorized and unissued Shares. See also Item 4 above. (c) In the 60 days prior to the date of filing of this Statement, neither MetLife nor, the best knowledge of MetLife, any of its directors and executive officers has effected any transactions in the Shares, except as disclosed in this Statement. (d) No other person is known to have the right to receive or the power to direct the receipt of dividends from, and the proceeds from the sale of, the Shares to which this Statement relates. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Pursuant to the RGA Agreement, MetLife purchased 4,784,689 Shares from RGA for a purchase price of $26.125 per share, or $125,000,000.13 in the aggregate (less $50,000 for MetLife's legal fees which RGA agreed to pay). RGA agreed to use such proceeds for general corporate purposes. In connection with the purchase and sale of such Shares under the RGA Agreement, (i) RGA and MetLife executed and delivered a Registration Rights Agreement, dated as of November 23, 1999 (the "Registration Rights Agreement"), and (ii) RGA, MetLife, GenAmerica, and two subsidiaries of GenAmerica (General American Life Insurance Company and Equity Intermediary Company ("EIM")) executed and delivered a Stockholders Agreement, dated as of November 23, 1999 (the "Stockholders Agreement"). The Registration Rights Agreement requires RGA, following a request from MetLife, to register the offer and sale of all or any part of the Shares to which this Statement relates under the Securities Act of 1933, as amended (the "Securities Act"). The Registration Rights Agreement also permits MetLife to include all or any part of the Shares to which this Statement relates in certain other proposed registrations by RGA of its Shares under the Securities Act. Pursuant to the Stockholders Agreement, MetLife has the right to include a certain amount of the Shares to which this Statement relates in proposed transfers of Shares Page 5 of 11 Pages 6 held by EIM or its affiliates, with certain exceptions. In addition to other specified termination events, the Stockholders Agreement will terminate upon the completion of MetLife's purchase from General American of all of the outstanding shares of capital stock of GenAmerica pursuant to the General American Agreement. The descriptions of the Registration Rights Agreement and the Stockholders Agreement set forth in this Statement are qualified in their entirety by reference to such agreements, included as Exhibits 3 and 4, respectively, to this Statement, each of which is incorporated herein in its entirety by reference. See also Items 3, 4 and 5 above. Item 7. Materials to be Filed as Exhibits.
Exhibit No. Description ----------- ----------- 1 RGA Agreement 2 General American Agreement 3 Registration Rights Agreement 4 Stockholders Agreement
Page 6 of 11 Pages 7 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: December 1, 1999 METROPOLITAN LIFE INSURANCE COMPANY By: /s/ Dorothy L Murray ---------------------------------------- Name: Dorothy L. Murray Title: Assistant Vice-President I, Thomas C. Hoi, Assistant Secretary of Metropolitan Life Insurance Company, a New York corporation, do hereby certify that the following is a full, true and correct copy of Section 4.1 of the By-Laws of Metropolitan Life Insurance Company: "Any officer, or any employee designated for the purpose by the chief executive officer, shall have power to execute all instruments in writing necessary or desirable for the Company to execute in the transaction and management of its business and affairs (including, without limitation, contracts and agreements, transfers of bonds, stocks, notes and other securities, proxies, powers of attorney, deeds, leases, releases, satisfactions and instruments entitled to be recorded in any jurisdiction, but excluding, to the extent otherwise provided for in the Bylaws, authorizations for the disposition of the funds of the Company deposited in its name and policies, contracts, agreements, amendment and endorsements of, for or in connection with insurance or annuities) and to affix the corporate seal." I further certify that the following person is an officer of Metropolitan Life Insurance Company and the the signature is the signature of such officer: Name Title Signature Dorthy L. Murray Assistant Vice President /s/ Dorothy L. Murray --------------------- In witnes whereof I have hereunto set my hand and have caused to be affixed the corporate seal of Metropolitan Life Insurance Company this 1st day of December, 1999. /s/ Thomas C. Hoi ----------------- Page 7 of 11 Pages 8 Index to Exhibits
Exhibit No. Description ----------- ----------- 1 RGA Agreement 2 General American Agreement 3 Registration Rights Agreement 4 Stockholders Agreement
Page 8 of 11 Pages 9 SCHEDULE A DIRECTORS AND EXECUTIVE OFFICERS OF METLIFE Set forth below is the name and present principal occupation or employment of each director and executive officer of MetLife. Except as set forth below, each present principal occupation set forth opposite an individual's name refers to MetLife. The principal business address of MetLife is One Madison Avenue, New York, NY 10010. Each person listed below is a citizen of the United States, except for Mr. Tweedie who is a citizen of the United States and Canada. Directors
Name and Business Address Present Principal Occupation or Employment - ------------------------- ------------------------------------------ Curtis H. Barnette Chairman and Chief Executive Officer, Bethlehem Steel Bethlehem Steel Corporation Corporation (steel manufacturing) 1170 Eighth Avenue, Martin Tower 2118 Bethlehem, Pennsylvania 18016 Robert H. Benmosche Chairman of the Board, President and Chief Executive Officer Gerald Clark Vice-Chairman of the Board and Chief Investment Officer Joan Ganz Cooney Chairman, Executive Committee, Children's Television Children's Television Workshop Workshop (broadcasting) One Lincoln Plaza New York, New York 10023 Burton A. Dole, Jr. Retired Chairman, President and Chief Executive Puritan Bennett Officer, Puritan Bennett (medical device P.O. Box 208 manufacturing) Pauma Valley, California 92061 James R. Houghton Chairman of the Board Emeritus, Corning Incorporated Corning Incorporated (ceramics manufacturing) 80 East Market Street, 2nd Floor Corning, New York 14830 Harry P. Kamen Retired Chairman of the Board and Chief Executive Metropolitan Life Insurance Company Officer 200 Park Avenue, Suite 5700 New York, New York 10166
Page 9 of 11 Pages 10
Helene L. Kaplan Of Counsel, Skadden, Arps, Slate, Meagher & Flom, LLP Skadden, Arps, Slate, Meagher & (law firm) Flom, LLP 919 Third Avenue New York, New York 10022 Charles M. Leighton Retired Chairman and Chief Executive Officer, CML CML Group, Inc. Group, Inc. (exercise and leisure products) P.O. Box 247 Bolton, Massachusetts 01740 Allen E. Murray Retired Chairman of the Board and Chief Executive Mobil Corporation Officer, Mobil Corporation (petroleum refining) 375 Park Avenue, Suite 2901 New York, New York 10152 Stewart G. Nagler Vice-Chairman of the Board and Chief Financial Officer John J. Phelan, Jr. Retired Chairman and Chief Executive Officer, New New York Stock Exchange, Inc. York Stock Exchange, Inc. (securities trading P.O. Box 312 exchange) Mill Neck, New York 11765 Hugh B. Price President and Chief Executive Officer, National Urban National Urban League, Inc. League, Inc. (charitable institution) 120 Wall Street, 7th & 8th Floors New York, New York 10005 Robert G. Schwartz Retired Chairman of the Board, President and Chief Metropolitan Life Insurance Company Executive Officer 200 Park Avenue, Suite 5700 New York, New York 10166 Ruth J. Simmons, Ph.D. President, Smith College (educational institution) Smith College College Hall 20 Northampton, Massachusetts 01063 William C. Steere, Jr. Chairman of the Board and Chief Executive Officer, Pfizer Inc. Pfizer Inc. (pharmaceutical manufacturing) 235 East 42nd Street New York, New York 10017
Page 10 of 11 Pages 11 Executive Officers (Who Are Not Directors)
Name Present Principal Occupation or Employment - ---- ------------------------------------------ Gary A. Beller Senior Executive Vice-President and General Counsel James M. Benson President, Individual Business; Chairman, Chief Executive Officer and President, New England Life Insurance Company C. Robert Henrikson President, Institutional Business Catherine A. Rein Senior Executive Vice-President; President and Chief Executive Officer, Metropolitan Property and Casualty Insurance Company William J. Toppeta President, Client Services; Chief Administrative Officer John H. Tweedie Senior Executive Vice-President Lisa M. Weber Senior Vice President, Human Resources Judy E. Weiss Executive Vice-President and Chief Actuary
Page 11 of 11 Pages EX-1 2 RGA AGREEMENT 1 Exhibit 1 ============================================================================= STOCK PURCHASE AGREEMENT BY AND BETWEEN REINSURANCE GROUP OF AMERICA, INCORPORATED AND METROPOLITAN LIFE INSURANCE COMPANY DATED AS OF NOVEMBER 23, 1999 ============================================================================= 2 TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS..................................................................................1 ARTICLE II PURCHASE AND SALE OF PURCHASED SHARES; CLOSING..............................................5 Section 2.1 Purchase and Sale......................................................................5 Section 2.2 Additional Agreements..................................................................6 Section 2.3 Closing................................................................................6 ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY..............................................6 Section 3.1 Organization and Qualification; Subsidiaries...........................................6 Section 3.2 Authority Relative to Agreements.......................................................7 Section 3.3 Capital Stock..........................................................................7 Section 3.4 No Conflicts...........................................................................8 Section 3.5 SEC Documents; Financial Statements; Undisclosed Liabilities...........................9 Section 3.6 Litigation............................................................................10 Section 3.7 Compliance with Law...................................................................11 Section 3.8 Absence of Certain Changes or Events..................................................11 Section 3.9 Tax Matters...........................................................................11 Section 3.10 Assets................................................................................12 Section 3.11 Employees and Employee Benefit Plans..................................................13 Section 3.12 Insurance.............................................................................14 Section 3.13 State Takeover Statutes and Shareholder Rights Plans..................................14 Section 3.14 Brokers or Finders....................................................................15 Section 3.15 Year 2000 Matters.....................................................................15 Section 3.16 Affiliate Transactions................................................................15 Section 3.17 No Significant Stock Acquisition......................................................15 Section 3.18 Use of Proceeds.......................................................................15 Section 3.19 Disclosure............................................................................15 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER....................................................16 Section 4.1 Investment Intent of Buyer............................................................16 Section 4.2 Organization and Qualification........................................................16 Section 4.3 Authority Relative to Agreements......................................................16 Section 4.4 No Conflicts..........................................................................17 Section 4.5 Interested Shareholder................................................................17 Section 4.6 No Reliance on Projections............................................................17
-i- 3
Page ---- ARTICLE V COVENANTS...................................................................................17 Section 5.1 Confidentiality.......................................................................17 Section 5.2 Public Announcements..................................................................18 Section 5.3 Information and Access................................................................18 Section 5.4 Use of Proceeds.......................................................................18 Section 5.5 Further Assurances....................................................................18 Section 5.6 Legend................................................................................18 ARTICLE VI CLOSING DELIVERIES.........................................................................19 Section 6.1 Company's Deliveries to Buyer.........................................................19 Section 6.2 Buyer's Deliveries to the Company.....................................................20 ARTICLE VII SURVIVAL..................................................................................20 Section 7.1 Survival..............................................................................20 ARTICLE VIII EXPENSES.................................................................................21 Section 8.1 Expenses..............................................................................21 ARTICLE IX MISCELLANEOUS..............................................................................21 Section 9.1 Counterparts..........................................................................21 Section 9.2 Governing Law.........................................................................21 Section 9.3 Entire Agreement......................................................................21 Section 9.4 Notices...............................................................................22 Section 9.5 Successors and Assigns................................................................23 Section 9.6 Headings..............................................................................23 Section 9.7 Amendments and Waivers................................................................23 Section 9.8 Severability..........................................................................23
EXHIBITS
Exhibit A Registration Rights Agreement Exhibit B Stockholders Agreement Exhibit C-1 Opinion of Bryan Cave LLP C-2 Opinion of Lewis, Rice & Fingersh, L.C. C-3 Opinion of the General Counsel of the Company
-ii- 4 SCHEDULES
Schedule 3.1(d) Insurance Licenses Schedule 3.1(e) Company Subsidiaries Schedule 3.3(a) Equity Securities and Pro Forma Capitalization Schedule 3.3(b) Investments Schedule 3.4 Conflicts Schedule 3.5(a) Company Reports Schedule 3.5(e) Reserves and Liability Amounts Schedule 3.6 Litigation Schedule 3.8 Changes or Events Schedule 3.9(a) Tax Audits and Examinations; Tax Disputes and Claims Schedule 3.9(b) Tax Sharing Agreements Schedule 3.16 Affiliate Transactions
-iii- 5 STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of November 23, 1999, by and between REINSURANCE GROUP OF AMERICA, INCORPORATED, a Missouri corporation (the "Company"), and METROPOLITAN LIFE INSURANCE COMPANY, a New York mutual life insurance company ("Buyer"). W I T N E S S E T H: WHEREAS, Buyer wishes to purchase from the Company, and the Company wishes to sell to Buyer, shares of the Company's common stock, par value $0.01 per share (the "Company Common Stock"), on the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are 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 shall have the following respective meanings: "Action" shall mean any action, suit, arbitration, inquiry, proceeding or investigation by or before any Government Authority or before any private dispute resolution panel, including, without limitation, the New York State Exchange, Inc., the National Association of Securities Dealers, Inc. and similar organizations. "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. "Agreement" shall have the meaning set forth in the first paragraph hereof. "Applicable Insurance Laws" shall have the meaning set forth in Section 3.5(e). "Board" shall mean the Board of Directors of the Company. "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. 6 "Buyer" shall have the meaning set forth in the first paragraph hereof. "Charter Documents" shall mean, with respect to any person, (i) the articles of incorporation, articles of organization, certificate of formation or equivalent organizational document of such person and any amendment or supplement thereto, as in effect on the date hereof and (ii) the by-laws, operating agreement, partnership agreement or equivalent organizational document of any such person and any amendment or supplement thereto, as in effect on the date hereof. "Closing" shall mean the consummation of the purchase and sale of the Purchased Shares hereunder. "Closing Date" shall mean the date on which the Closing shall occur. "Code" shall mean the Internal Revenue Code of 1986, as amended, and any successor thereto, including all of the Treasury regulations promulgated thereunder. "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 Plan" shall have the meaning set forth in Section 3.11(b). "Company Preferred Stock" shall have the meaning set forth in Section 3.3(a). "Company Reports" shall have the meaning set forth in Section 3.5(a). "EIM" shall mean Equity Intermediary Company, a Missouri corporation and an indirect wholly-owned subsidiary of General American. "Equity Securities" shall mean, with respect to any person, all shares, interests, participations, rights in or other equivalent (however designated and whether voting or non-voting) of such person's capital stock or any form of membership interests, as applicable, whether outstanding on the Closing Date or issued after the Closing Date and any and all rights, warrants or options exercisable or exchangeable for or convertible into such capital stock or such form of membership interest, including, without limitation, any "equity security" within the meaning of Rule 3a11-1 under the Exchange Act. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended, and any successor thereto. "ERISA Affiliates" shall mean any entity which is under "common control" with the Company, within the meaning of Section 4001(b)(1) of ERISA. "Exchange Act" shall have the meaning set forth in Section 3.5(a). -2- 7 "GAAP" shall have the meaning set forth in Section 3.5(b). "GALIC" shall mean General American Life Insurance Company, a Missouri life insurance company. "GenAmerica" shall mean GenAmerica Corporation, a Missouri corporation. "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. "Government Authority" shall mean any government or state (or any subdivision thereof) of, in or outside the United States, or any agency, authority, bureau, commission, department or similar body or instrumentality thereof, or any governmental court or tribunal. "IRS" shall mean the Internal Revenue Service. "Law" shall mean any statute, ordinance, code, rule, regulation or order enacted, adopted, promulgated, applied or followed by any Government Authority. "Liabilities" shall mean, as to any person, all indebtedness, adverse claims, liabilities and obligations, direct, indirect, absolute or contingent of such person, whether fixed, unfixed, matured, unmatured, known or unknown, accrued, vested or otherwise, whether in contract, tort, strict liability or otherwise and whether or not actually reflected, or required by GAAP to be reflected, in such person's balance sheets or other books and records, including, without limitation, (i) all obligations arising from non-compliance with any Law, (ii) all indebtedness or liability of such person for borrowed money, or for the purchase price of property or services (including trade obligations), (iii) all obligations of such person as lessee under leases, capital or other, (iv) all liabilities of such person in respect of plans covered by Title IV of ERISA, or otherwise arising in respect of plans for current or former employees or their respective families or beneficiaries, (v) all reimbursement obligations of such person in respect of letters of credit, (vi) all obligations of such person arising under acceptance facilities, (vii) all liabilities of other persons or entities, directly or indirectly, guaranteed, endorsed (other than for collection or deposit in the ordinary course of business) or discounted with recourse by such person or with respect to which the person in question is otherwise directly or indirectly liable, (viii) all obligations secured by any Lien on property of such person, whether or not the obligations have been assumed, and (ix) all other items which have been, or in accordance with GAAP would be, included in determining total liabilities on the liability side of the balance sheet. -3- 8 "Liens" shall mean all liens, mortgages, deeds of trust, deeds to secure debt, security interests, pledges, claims, charges, limitations, restrictions, easements and other encumbrances of any nature whatsoever. "Material Adverse Effect" shall mean a material adverse effect on the condition (financial or otherwise), results of operations, assets, prospects or business of the Company and its Subsidiaries on a consolidated basis. "Material Subsidiaries" shall mean Reinsurance Company of Missouri, Incorporated, RGA Reinsurance Company, RGA Reinsurance Company (Barbados) Ltd., RGA International Ltd., RGA Canada Management Company Ltd. and RGA Life Reinsurance Company of Canada. "Permitted Liens" shall mean (i) Liens for taxes or other assessments or charges of Government Authorities that are not yet delinquent or that are being contested in good faith by appropriate proceedings, in each case, with respect to which adequate reserves are being maintained by the Company or its Subsidiaries to the extent required by GAAP, (ii) assets held in trust or in special deposits in order to meet insurance regulatory requirements, and (iii) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen and other Liens imposed by Law and created in the ordinary course of business or in order to meet insurance regulatory requirements for amounts not yet overdue or which are being contested in good faith by appropriate proceedings, in the case of clauses (i) and (iii), with respect to which adequate reserves or other appropriate provisions are being maintained by the Company or its Subsidiaries to the extent required by GAAP and which do not exceed $1,000,000 in the aggregate. "person" shall mean any individual, entity or group, including, without limitation, any individual, corporation, partnership, limited liability company, joint venture, trust, association, joint stock company, unincorporated organization, other form of business or legal entity or Government Authority. "Purchase Price" shall have the meaning set forth in Section 2.1. "Purchased Shares" shall have the meaning set forth in Section 2.1. "Registration Rights Agreement" shall have the meaning set forth in Section 2.2. "Rights" shall mean the rights issued pursuant to the Rights Agreement. "Rights Agreement" shall mean the Rights Agreement, dated as of May 4, 1993, between the Company and Chase Mellon Shareholder Services, L.L.C. (as successor to Boatman's Trust Company), as amended. "SAP Financial Statements" shall have the meaning set forth in Section 3.5(d). "SEC" shall mean the Securities and Exchange Commission. -4- 9 "Securities Act" shall have the meaning set forth in Section 3.3(c). "Securities Laws" shall have the meaning set forth in Section 3.5(a). "Significant Stock Acquisition" shall mean such time as (i) a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other than General American or any of its Subsidiaries, becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more than 5% of the outstanding voting capital stock of the Company; or (ii) during any period of two consecutive calendar years, individuals who at the beginning of such period constituted the Board (together with any new directors whose election by the Board or whose nomination for election was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office. "Stockholders Agreement" shall have the meaning set forth in Section 2.2. "Subsidiaries" 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. Without limiting the generality of the foregoing, when used herein without reference to any person, "Subsidiary" shall mean a Subsidiary of the Company, all of which are set forth on Schedule 3.1(e). "Tax" means any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Section 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add- on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not. The term "Tax" also includes any amounts payable pursuant to any tax sharing agreement to which any relevant entity is liable as a successor or pursuant to contract. "Tax Return" means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof. ARTICLE II PURCHASE AND SALE OF PURCHASED SHARES; CLOSING Section 2.1 Purchase and Sale. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, the Company shall issue, sell and deliver to Buyer, and Buyer shall purchase, acquire and accept from the Company, an -5- 10 aggregate of 4,784,689 shares of Company Common Stock (the "Purchased Shares"), for a purchase price of $26.125 per share, or One Hundred Twenty-Five Million Dollars and Thirteen Cents ($125,000,000.13) in the aggregate (the "Purchase Price"). Section 2.2 Additional Agreements. At the Closing, the Company and Buyer shall enter into a registration rights agreement substantially in the form attached hereto as Exhibit A (the "Registration Rights Agreement"), and the Company, Buyer, EIM, GALIC and GenAmerica shall enter into a stockholders agreement substantially in the form attached hereto as Exhibit B (the "Stockholders Agreement"). Section 2.3 Closing. The Closing shall take place upon execution of this Agreement, at the offices of Dewey Ballantine LLP, 1301 Avenue of the Americas, New York, New York, or at such other place and time as the Company and Buyer shall mutually agree. At the Closing, the Company shall deliver or cause to be delivered to Buyer the items listed in Section 6.1, and Buyer shall deliver or cause to be delivered to the Company the items listed in Section 6.2. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company hereby represents and warrants to Buyer as follows: Section 3.1 Organization and Qualification; Subsidiaries. (a) The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Missouri. The Company has all requisite corporate power and authority to own, operate and lease its properties and assets, to carry on its business as now conducted, and to enter into this Agreement, the Registration Rights Agreement and the Stockholders Agreement and to perform its obligations hereunder and thereunder. (b) Each of the Subsidiaries of the Company is a corporation duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, and has the corporate power and authority to own, operate and lease its properties and assets and to carry on its business as now conducted. (c) The Company and each of its Subsidiaries is duly licensed or qualified to do business and in good standing and has all insurance licenses in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such licensing or qualification, except for any failures to be so licensed or qualified or to be in good standing that would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (d) Each insurance license of the Company and its Subsidiaries, including, but not limited to, each authorization to transact reinsurance, is in full force and effect without amendment, limitation or restriction other than as described in -6- 11 Schedule 3.1(d), and the Company is not aware of any event, inquiry or proceeding which would reasonably be expected to lead to the revocation, amendment, failure to renew, limitation, suspension or restriction of any such insurance license, except, in each case, such failures to be in full force and effect and such revocations, amendments, failures to renew, limitations, suspensions and restrictions that would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (e) Schedule 3.1(e) sets forth the name of each Subsidiary of the Company (whether owned, directly or indirectly, through one or more intermediaries), its jurisdiction of incorporation or organization, and all jurisdictions where it is licensed or qualified to do business. All of the outstanding shares of capital stock of, or other equity interest in, each of the Subsidiaries are duly authorized, validly issued, fully paid and nonassessable, and are owned, directly or indirectly, by the Company free and clear of all Liens, except as set forth in Schedule 3.1(e). Except as set forth on Schedule 3.1(e), there are no outstanding Equity Securities of any of the Subsidiaries, other than Equity Securities owned directly or indirectly by the Company. None of the Subsidiaries, other than the Material Subsidiaries, individually accounted for more than 10 percent of the consolidated assets of the Company and its Subsidiaries as of September 30, 1999 or 10 percent of the consolidated revenues of the Company and its Subsidiaries for the nine months ended September 30, 1999. There is no state of affairs relating to any of the Subsidiaries, other than the Material Subsidiaries, that would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. Section 3.2 Authority Relative to Agreements. The execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Stockholders Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings are necessary therefor. This Agreement, the Registration Rights Agreement and the Stockholders Agreement have been duly executed and delivered by the Company and constitute the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms (except as enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors' rights generally and by general principles of equity). Section 3.3 Capital Stock. (a) The authorized capital stock of the Company consists of 75,000,000 shares of Company Common Stock, par value $0.01 per share, and 10,000,000 shares of Preferred Stock, par value $0.01 per share ("Company Preferred Stock"). As of the date hereof, (i) 45,151,264 shares of Company Common Stock are issued and outstanding, (ii) 1,117,320 shares of Company Common Stock are held in the Company's treasury, (iii) 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 and (iv) no shares of Company Preferred Stock are issued, outstanding or held in its treasury. Except as set forth in the immediately preceding sentence, no Equity Securities of the Company are issued, outstanding, held in the Company's treasury or reserved for issuance. All such issued -7- 12 and outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. Neither the Company nor any of its Subsidiaries has any outstanding obligations pursuant to which the holders thereof have the right to vote (or which are convertible into or exercisable or exchangeable for securities pursuant to which the holders thereof have the right to vote) with the stockholders of the Company on any matter. As of the date hereof, except as set forth in this Section 3.3(a) or in Schedule 3.3(a), there are no outstanding Equity Securities of the Company. Schedule 3.3(a) shows the pro forma capitalization of the Company as of September 30, 1999 after giving effect to the Closing. (b) Except for interests in the Subsidiaries of the Company and except as set forth in Schedule 3.3(b), none of the Company or any of its Subsidiaries owns or holds, directly or indirectly, any interest or investment (whether equity or debt) in any person (other than (i) investments made in the ordinary course and held in the portfolios of the Subsidiaries which are insurance companies or (ii) fixed income investments made in the ordinary course and held in the portfolio of the Company). (c) The Purchased Shares have been duly authorized for issuance, and upon issuance at the Closing will be duly and validly issued, fully paid and nonassessable. The source of the Purchased Shares is the Company's treasury shares or authorized and unissued shares of Company Common Stock. Upon issuance at the Closing, the Purchased Shares will be listed on the New York Stock Exchange, Inc. Upon the Closing, the Company will duly issue all of the Purchased Shares to Buyer free and clear of all Liens (other than any transfer restrictions under the Securities Laws). The issuance and sale of the Purchased Shares hereunder will not give any stockholder of the Company the right to demand payment for its shares or give rise to any preemptive or similar rights. Neither the Company nor any person acting on its behalf has taken, or will take, any action that would subject the offer, sale or issuance of the Purchased Shares to the registration requirements of (i) Section 5 of the Securities Act of 1933, as amended (the "Securities Act") or (ii) state securities Laws. On the basis of the representations contained in Article IV hereof, the offer, sale and issuance of the Purchased Shares by the Company to Buyer are exempt from the registration requirements of (i) Section 5 of the Securities Act and (ii) state securities Laws. No further approval or authorization of the stockholders or directors of the Company is required for the issuance and sale of the Purchased Shares to Buyer. Section 3.4 No Conflicts. Neither the execution and delivery by the Company of this Agreement, the Registration Rights Agreement and the Stockholders Agreement nor the performance by the Company of its obligations hereunder or thereunder will conflict with, result in a breach of the terms, conditions or provisions of, constitute a default under, result in the creation of any Lien upon any of the properties or assets of the Company or any of the Material Subsidiaries pursuant to, trigger any payment or other obligations pursuant to, accelerate vesting under, or require any consent, approval or other action by or any notice to or filing by the Company or any Material Subsidiary with any person pursuant to, the Charter Documents of the Company or any of the Material Subsidiaries, any Company Plan, any grant or award made under any Company Plan or any agreement, instrument, license, permit, order, judgment, -8- 13 injunction, writ, decree or Laws applicable to the Company or any of the Material Subsidiaries or by which any of their properties or assets is bound, except as set forth in Schedule 3.4. Section 3.5 SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Schedule 3.5(a) sets forth a list of each registration statement, report, form, schedule, statement or other document and all amendments and supplements thereto prepared by the Company or relating to its properties or assets filed with the SEC since June 1, 1996 (collectively, the "Company Reports"). Except as set forth in Schedule 3.5(a), the Company Reports were filed with the SEC in a timely manner and include all registration statements, reports, forms, schedules, statements and other documents required to be filed by the Company under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules and regulations promulgated thereunder (collectively, the "Securities Laws"). As of their respective dates, the Company Reports (i) complied in all material respects with all applicable requirements of the Securities Laws and (ii) were complete and correct in all material respects and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. There is no unresolved violation asserted by any Government Authority with respect to any of the Company Reports. (b) Each of the balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presented in all material respects the financial position of the person or persons to which it relates as of its date and each of the statements of income, stockholders' equity and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presented in all material respects the results of operations, retained earnings or cash flows, as the case may be, of the person or persons to which it relates for the periods set forth therein, in each case in accordance with United States generally accepted accounting principles consistently applied ("GAAP") during the periods involved, except as may be noted therein and except, in the case of the unaudited statements, normal recurring year-end adjustments which have not been and will not be material in nature or amount. (c) Except as and to the extent set forth in the Company Reports and the Company's financial statements filed with the SEC, neither the Company nor any of the Material Subsidiaries has any Liabilities (nor is the Company aware of any circumstances that would result in any such Liabilities) that would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (d) The Company has previously furnished Buyer with copies of audited statutory financial statements of each of the Material Subsidiaries as of and for the years ended December 31, 1998 and 1997, and unaudited statutory financial statements of RGA Life Insurance Company of Canada as of and for the period ended June 30, 1999 and -9- 14 RGA Reinsurance Company as of and for the period ended September 30, 1999, in each case prepared in conformity with accounting practices prescribed or permitted by their respective jurisdictions of domicile, and in each case to the extent that such statutory financial statements have been prepared or are required by Law to be prepared (collectively, the "SAP Financial Statements"). Each of the balance sheets included in the SAP Financial Statements fairly presented in all material respects the financial position of the reporting person as of its date and each of the statements of operations and cash flows included in the SAP Financial Statements fairly presented in all material respects the results of operations and cash flows of the reporting person for the period therein set forth, in each case in accordance with statutory accounting practices prescribed or permitted by the applicable jurisdiction on a consistent basis. As of their respective dates, the SAP Financial Statements complied in all material respects with all applicable Laws. No material deficiencies or unresolved violations have been asserted by any Government Authority with respect to the SAP Financial Statements. (e) Each reserve and other liability amount in respect of the insurance or reinsurance business, established or reflected in the SAP Financial Statements of each reporting person was determined in accordance with generally accepted actuarial standards consistently applied, was based on actuarial assumptions that were in accordance with or stronger than those called for in relevant policy and contract provisions, is fairly stated in all material respects in accordance with sound actuarial principles and is in compliance with the requirements of the insurance Laws of their respective jurisdictions of domicile as well as those of any other applicable jurisdictions (collectively, "Applicable Insurance Laws"). Except as set forth on Schedule 3.5(e), such reserves and liability amounts with respect to each reporting person were adequate in all material respects to cover the total amount of all Liabilities of such reporting person under all its outstanding insurance, reinsurance and other similar contracts as of December 31, 1998 and 1997, June 30, 1999 or September 30, 1999, as appropriate. Such investment assumptions were reasonable as of December 31, 1998 or 1997, June 30, 1999 or September 30, 1999, as appropriate. Each reporting person owns assets that qualify as admitted assets in an amount at least equal to the sum of all such reserves and liability amounts and its minimum statutory capital and surplus as required by Applicable Insurance Laws. Section 3.6 Litigation. Except as set forth on Schedule 3.6, there are no Actions pending or, to the Company's knowledge, threatened against or affecting (i) the Company, (ii) any of the Material Subsidiaries, (iii) any director, officer, agent, employee, consultant or other person authorized to act on behalf of the Company or any of the Material Subsidiaries, arising out of or in connection with his or her capacity as a director, officer, agent, employee or consultant of, the Company or any of the Material Subsidiaries, or (iv) any properties of any of the foregoing, that would, individually or in the aggregate, be reasonably likely to result in a Material Adverse Effect, or which question the validity of this Agreement, the Registration Rights Agreement or the Stockholders Agreement or any of the transactions contemplated hereby or thereby. Except as disclosed in Schedule 3.6, there are no continuing orders, injunctions or decrees of any Government Authority to which the Company or any of the Material Subsidiaries is a party or by which any of its properties or assets are bound. -10- 15 Section 3.7 Compliance with Law. (a) None of the Company or any of the Material Subsidiaries is in violation of any Law, order, writ, decree or injunction of any Government Authority or any body having jurisdiction over them or any of their respective properties or assets which, if enforced, would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect. Neither the Company nor any of the Material Subsidiaries is in violation of, or in default under (and there does not exist any event or condition which, after notice or lapse of time or both, would constitute such a default under), any term of its Charter Documents, or of any term of any agreement, contract, instrument, judgment, decree, writ, determination, arbitration award, or Law applicable to the Company or any of the Material Subsidiaries or to which the Company or any of the Material Subsidiaries is bound, or to any properties or assets of the Company or any of the Material Subsidiaries, except in each case to the extent that such violations or defaults would not, individually or in the aggregate, be reasonably expected to (i) affect the validity or enforceability of this Agreement, the Registration Rights Agreement or the Stockholders Agreement, (ii) have a Material Adverse Effect, or (iii) impair the ability of the Company or any of the Material Subsidiaries to perform fully on a timely basis any obligation which the Company or any such Material Subsidiary will have under this Agreement, the Registration Rights Agreement or the Stockholders Agreement. (b) The Company and each of the Material Subsidiaries have filed all reports, registrations and statements, together with any amendments required to be made with respect thereto, that they were required to file with any Government Authority, to be filed, and have paid all fees or assessments due and payable in connection therewith except, in each case, such failure to file or pay fees or assessments that would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. Section 3.8 Absence of Certain Changes or Events. Except as disclosed in the Company Reports filed with the SEC prior to the date hereof or in Schedule 3.8, since December 31, 1998, the Company and each of the Material Subsidiaries has conducted its business only in the ordinary course, and there has not been (a) any change, circumstance or event that would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, (b) any declaration, setting aside or payment of any dividend or other distribution with respect to the Company Common Stock, (c) any Liability, capital expenditure, commitment or transaction incurred by the Company or any of the Material Subsidiaries, other than Liabilities, capital expenditures, commitments and transactions incurred in the ordinary course of business consistent with the Company's past practices, or (d) any Lien placed on any of the properties or assets of the Company or any of the Material Subsidiaries that remains in existence on the date hereof, other than Permitted Liens. Section 3.9 Tax Matters. (a) Except where the failure would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, the Company and each of the -11- 16 Material Subsidiaries has timely filed with the appropriate Government Authority all Tax Returns required to be filed by it or has timely requested extensions and any such request has been granted and has not expired. Each such Tax Return is complete and accurate in all material respects. All Taxes shown as owed by the Company or any of the Material Subsidiaries on any Tax Return or claimed or asserted to be due, from or with respect to any of them, have been paid, except for Taxes being contested in good faith and for which adequate reserves have been taken on the balance sheet of the person taking such reserves. The Company and each of the Material Subsidiaries have properly made due and sufficient accruals for all Taxes for such periods subsequent to the periods covered by such Tax Returns as required by GAAP. The Company and each of the Material Subsidiaries have made all required current estimated Tax payments in an amount sufficient to avoid any understatement penalties. Except as set forth in Schedule 3.9(a), none of the Company or any of the Material Subsidiaries is being audited or examined by any Government Authority with respect to any Tax or is a party to any pending action or proceedings by any Government Authority for assessment or collection of any Tax, and no claim for assessment or collection of any Tax has been asserted against it. Except as set forth in Schedule 3.9(a), there is no dispute or claim concerning any Tax liability of the Company or any of the Material Subsidiaries, (i) claimed or raised by any Government Authority in writing or (ii) as to which the Company or any of the Material Subsidiaries has knowledge, except to the extent such dispute or claim would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (b) Except as set forth in Schedule 3.9(b), neither the Company nor any of the Material Subsidiaries is a party to, bound by, or obligated under, any Tax sharing agreement (whether written or oral). (c) The Company and each of the Material Subsidiaries (i) have complied in all material respects with the provisions of the Code relating to the withholding and payment of Taxes, including, without limitation, the withholding and reporting requirements under Code Sections 1441 through 1464, 3401 through 3406, and 6041 through 6049, and any similar provisions under any other Laws, (ii) have within the time and in the manner prescribed by Law withheld from employee wages and paid over to the proper Government Authorities all amounts required, and (iii) have complied in all material respects with the requirements for classifying persons who provide services to the Company and the Material Subsidiaries as employees for purposes of such tax withholding requirements. Section 3.10 Assets. (a) Each agreement to which the Company or any of the Material Subsidiaries is a party or by which it is bound and which is material to the business of the Company or such Material Subsidiary is in full force and effect. Neither the Company nor any of the Material Subsidiaries is in material breach, violation or default thereunder. The Company is not aware of a breach, violation or default thereunder by any other parties thereto that, when taken together with all of the other breaches, violations and -12- 17 defaults under the other material agreements of the Company or any Material Subsidiary, would reasonably be expected to have a Material Adverse Effect. (b) Neither the Company nor any of the Material Subsidiaries owns or has owned any real property. Each of the leases for office space occupied by the Company or any of the Material Subsidiaries (the "Leases") is in full force and effect and there are no existing defaults under any of the Leases nor does there exist any event or condition which, with notice or lapse of time or both, would give rise to a default or constitute grounds for termination or re-entry under any of the Leases that would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (c) All copyrights, patents, trademarks, licenses, trade names, logos, assumed or other names and other intangible property rights owned or, to the Company's knowledge, used by the Company or any of the Material Subsidiaries in their businesses, are valid, subsisting and in full force and effect without interference by any other person, except for such instances which would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. Neither the Company nor any of the Material Subsidiaries has received any notice with respect to any alleged infringement or unlawful use of any intangible property right owned or alleged to be owned by others that would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (d) The Company and each of the Material Subsidiaries has good and marketable title to all of the assets owned by the Company or such Material Subsidiary, as the case may be, free and clear of all Liens (except for Permitted Liens and Liens which do not materially interfere with the current and intended use of such assets). All assets used in or necessary for the conduct of the business of the Company and each of the Material Subsidiaries as currently conducted are owned by or leased or licensed to it. No other person owns, or has any rights whatsoever in, any such assets (except in the case of assets leased or licensed to the Company or any of the Material Subsidiaries, the ownership interest in such assets by the lessor or licensor), except where such ownership or rights would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. Such assets have been properly maintained and are in good operating condition and repair, ordinary wear and tear excepted, and are reasonably adequate for the uses to which they are being put. Section 3.11 Employees and Employee Benefit Plans. (a) With respect to each Company Plan, the Company and each of its Subsidiaries is in compliance in all material respects with the terms of each Company Plan and with the requirements prescribed by all applicable statutes, orders or governmental rules or regulations. As to each Company Plan intended to be qualified under Section 401(a) of the Code, the Company has received a favorable determination letter from the IRS and nothing has occurred since the date of such letter to impair its continued validity and effectiveness, assuming that the plan is amended on a timely basis to comply with any changes in legislative, regulatory or administrative requirements as to -13- 18 which the remedial amendment period has not yet ended. No Company Plan, nor any fiduciary of party in interest thereof, has engaged in any material, non-exempt prohibited transaction under ERISA of the Code. (b) For purposes hereof, "Company Plan" means any employee benefit or compensation plan, policy, program, arrangement or agreement, including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA, maintained or contributed to by the Company or a Subsidiary or in which the Company or a Subsidiary participates or participated and which provides benefits to current or former employees of the Company or a Subsidiary. (c) With respect to each Company Plan and each plan of an ERISA Affiliate that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (ii) no reportable event within the meaning of Section 4043(c) of ERISA has occurred in the past 3 years, with respect to which notice has not been waived, and (iii) there is no liability, contingent or otherwise, under Title IV of ERISA, except for payment of PBGC premiums. Neither the Company nor any ERISA Affiliate participates in any "multiemployer plan" (as defined in Section 3(37) of ERISA) nor has the Company or any ERISA Affiliate incurred any withdrawal liability under any multiemployer plan that has not been satisfied in full. Section 3.12 Insurance. The Company maintains insurance policies, including liability policies, covering the assets, business, equipment, properties, operations, employees, officers and directors of the Company and each of the Material Subsidiaries, which are of a type and in amounts customarily carried by persons conducting businesses similar to those of the Company and the Material Subsidiaries. Section 3.13 State Takeover Statutes and Shareholder Rights Plans. The Company has caused to be taken all actions necessary such that no "fair price," "moratorium," "control share acquisition," "business combination" or other form of antitakeover statute, regulation or provision of the Company Charter (assuming Buyer's representations in Section 4.5 are accurate) is applicable to any of the transactions contemplated hereby or by the Registration Rights Agreement or the Stockholders Agreement, including, without limitation, Sections 351.407 and 351.459 of the Missouri Revised Statutes; provided that with respect to Section 351.459 of the Missouri Revised Statutes, the Company has not taken any action that would permit the assignment of the Purchased Shares by Buyer to an "interested shareholder" as defined in such Section. The Company has caused to be taken all actions necessary such that, for all purposes under the Rights Agreement, neither Buyer nor any of its Affiliates shall be deemed an Acquiring Person (as defined in the Rights Agreement), the Distribution Date (as defined in the Rights Agreement) shall not be deemed to occur, and the Rights will not separate from the Company Common Stock, in each case as a result of Buyer's entering into this Agreement, the Registration Rights Agreement and the Stockholders Agreement or consummating the acquisition of the Purchased Shares pursuant hereto, and there shall be no effect under the Rights Agreement or with respect to the Rights as a result of such -14- 19 transactions, other than the issuance of Rights to Buyer pursuant thereto. For the avoidance of doubt, references to "Buyer" in this Section shall only refer to Buyer and not any of its successors or permitted assigns. Section 3.14 Brokers or Finders. Neither the Company nor any of its Subsidiaries, stockholders, officers, directors or employees has engaged any agent, broker, investment banker or other firm or person that will be entitled to any broker's or finder's fee or any other commission or similar fee in connection with this Agreement or any of the transactions contemplated hereby for which the Buyer or any of its Affiliates will be responsible. Section 3.15 Year 2000 Matters. All information technology presently expected to be used by the Company or any Material Subsidiary following December 31, 1999 in the administration and the business operations of the Company or any Material Subsidiary, including, without limitation, in all products and services (i) provided by the Company or any Material Subsidiary whether to third parties or for internal use or (ii) to the best of the Company's knowledge after reasonable investigation, used in combination with any information technology of its clients, customers, suppliers or vendors, accurately processes or will process all date and time data (including, but not limited to calculating, comparing and sequencing) from, into and between the years 1999 and 2000 and the twentieth century and the twenty-first century, including leap year calculations, and neither the performance nor the functionality of such technology will be affected by dates prior to, during and after the year 2000 which would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. Neither the Company nor any Material Subsidiary has any obligation under warranty agreements, service agreements or otherwise to remedy any information technology defect relating to the year 2000 which would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. Section 3.16 Affiliate Transactions. Schedule 3.16 sets forth a complete and accurate list and description of all transactions entered into by the Company or any of the Material Subsidiaries since January 1, 1999 or currently proposed which are of the type required to be disclosed by the Company pursuant to Item 404 of Regulation S-K of the Securities Laws. Section 3.17 No Significant Stock Acquisition. Except pursuant to the General American Agreement, since June 30, 1999, to the Company's knowledge, no Significant Stock Acquisition of the Company has occurred and no event has occurred which is reasonably likely to lead to a Significant Stock Acquisition. Section 3.18 Use of Proceeds. The Company will apply the proceeds of the sale of the Purchased Shares solely for general corporate purposes. Section 3.19 Disclosure. Neither this Agreement (including the schedules and exhibits hereto) nor any certificate, instrument or written statement furnished to Buyer by or on behalf of the Company pursuant to this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order -15- 20 to make the statements contained herein and therein in light of the circumstances under which they were made not misleading. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER Buyer hereby represents and warrants to the Company as follows: Section 4.1 Investment Intent of Buyer. Buyer understands that the offer and sale of the Purchased Shares have not been registered under the Securities Act. Buyer also understands that the Purchased Shares are being offered and sold pursuant to an exemption from registration contained in the Securities Act based in part upon Buyer's representations contained in this Agreement. Taking into account its personnel and resources, Buyer is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Purchased Shares, including investments in securities issued by the Company, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to purchase the Purchased Shares. Buyer is acquiring the Purchased Shares for its own account for investment only and with no present intention of distributing any of the Purchased Shares and has no arrangement or understanding with any other persons regarding the distribution of the Purchased Shares. Buyer will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Purchased Shares except in compliance with the Securities Act and applicable state securities laws, the rules and regulations promulgated thereunder and the terms and conditions hereof. Buyer is an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act. Section 4.2 Organization and Qualification. Buyer is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of New York. Buyer has all requisite corporate power and authority to enter into this Agreement, the Registration Rights Agreement and the Stockholders Agreement and to perform its obligations hereunder and thereunder. Section 4.3 Authority Relative to Agreements. The execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Stockholders Agreement have been duly and validly authorized by all necessary corporate action on the part of Buyer and no other corporate proceedings are necessary therefor. This Agreement, the Registration Rights Agreement and the Stockholders Agreement have been duly executed and delivered by Buyer and constitute the valid and legally binding obligations of Buyer, enforceable against Buyer in accordance with their terms (except as enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors' rights generally and by general principles of equity). -16- 21 Section 4.4 No Conflicts. Neither the execution and delivery by Buyer of this Agreement, the Registration Rights Agreement and the Stockholders Agreement nor the performance by Buyer of its obligations hereunder or thereunder will conflict with, result in a breach of the terms, conditions or provisions of the Charter Documents of Buyer, or require any consent, approval or other action by or any notice to or filing by Buyer with any Governmental Authority pursuant to any Laws applicable to Buyer, except to the extent that any such conflict or breach or lack of consent, approval, action, notice or filing would not reasonably be expected to (i) affect the validity or enforceability of this Agreement, the Registration Rights Agreement or the Stockholders Agreement, or (ii) impair the ability of Buyer to perform any of its material obligations under this Agreement, the Registration Rights Agreement or the Stockholders Agreement. Section 4.5 Interested Shareholder. Buyer represents and warrants that, except to the extent that Buyer may be deemed to have a beneficial ownership interest in, or be the direct or indirect owner of, Company Common Stock (or "voting power" or "voting stock" with respect thereto, or entitled to exercise or direct the exercise of the foregoing) owned by GenAmerica or any of its direct or indirect Subsidiaries (including, without limitation, EIM) under Section 351.407 or 351.459 of the Missouri Revised Statutes or under the Rights Agreement as a result of the execution and delivery of the General American Agreement, at no time from March 1, 1993 through the date hereof has Buyer, alone or as part of a group, been, within the meaning of Section 351.407 or 351.459 of the Missouri Revised Statutes or the Rights Agreement, the "beneficial owner" or the direct or indirect owner of, or entitled to exercise or direct the exercise of, twenty percent (20%) or more of the Company's then outstanding "voting power" and/or "voting stock." Section 4.6 No Reliance on Projections. The purchase of the Purchased Shares and the consummation of the transactions contemplated hereby by Buyer are not done in reliance by Buyer upon any projections as to future financial performance or condition or business prospects prepared by the Company or any of its Subsidiaries or any of their Affiliates. ARTICLE V COVENANTS Section 5.1 Confidentiality. Buyer agrees that all confidential or proprietary information of the Company provided to it pursuant to this Agreement shall be kept confidential, and Buyer shall not use such information except in connection with the consummation of the transactions contemplated by this Agreement and shall not disclose such information to any persons other than the directors, officers, employees, financial advisors, investors, lenders, legal advisors, accountants, consultants and Affiliates of Buyer who reasonably need to have access to the confidential or proprietary information and who are advised of the confidential or proprietary nature of such information and who agree for the benefit of the Company (in writing, with respect to -17- 22 financial advisors, investors, lenders, legal advisors, accountants and consultants) to be bound hereby; provided, however, the foregoing obligation of Buyer as to disclosure shall not (i) relate to any such information that (x) is or becomes generally available other than as a result of unauthorized disclosure by Buyer or by persons to whom Buyer has made such information available, or (y) is or becomes available to Buyer on a non-confidential basis from a third party that is not, to Buyer's knowledge, bound by any other confidentiality agreement or obligation with the Company, or (ii) prohibit disclosure of any such information if required by Law. Section 5.2 Public Announcements. Subject to each party's disclosure obligations imposed by Law and any stock exchange or similar rules and the confidentiality provisions contained in Section 5.1, the Company and Buyer will cooperate with each other in the development and distribution of all news releases and other public information disclosures with respect to this Agreement, the Registration Rights Agreement, the Stockholders Agreement and any of the transactions contemplated hereby or thereby. If a party is required by Law or any stock exchange or similar rule to issue a news release or other public announcement, it shall advise the other party in advance thereof and cooperate with the other party to cause a mutually agreeable release or announcement to be issued. Section 5.3 Information and Access. So long as Buyer and its Subsidiaries and Affiliates continue to hold in the aggregate at least 1,000,000 shares of Company Common Stock purchased pursuant to this Agreement (and so certify in writing to the Company following the Company's written request therefor), the Company and each of the Material Subsidiaries shall afford to Buyer and its accountants, counsel and other representatives full and reasonable access during normal business hours (and at such other times as the parties may mutually agree) to its properties, books, contracts, commitments, records and personnel and shall furnish promptly to Buyer (i) a copy of each report, schedule, form, statement and other document filed or received by it pursuant to the requirements of the Securities Laws, and (ii) all other information concerning their businesses, personnel and the Company Properties as Buyer may reasonably request from time to time. Section 5.4 Use of Proceeds. The Company will apply the proceeds of the sale of the Purchased Shares solely for general corporate purposes. Section 5.5 Further Assurances. The Company and Buyer agree that, from time to time, whether before, at or after any Closing Date, each of them will execute and deliver such further instruments of conveyance and transfer and take such other action as may be necessary to carry out the purposes and intents hereof. Section 5.6 Legend. Buyer agrees that the certificates representing the Purchased Shares may bear legends substantially to the effect that the Purchased Shares have not been registered under the Securities Act or state securities Laws and may not be resold without registration or delivery of a legal opinion reasonably satisfactory to the Company from counsel who is reasonably satisfactory to the Company that registration is not required. -18- 23 ARTICLE VI CLOSING DELIVERIES Section 6.1 Company's Deliveries to Buyer. At the Closing, the Company will deliver, or cause to be delivered, to Buyer the following (to the extent any such delivery is not waived in writing by Buyer): (a) Purchased Shares. A certificate representing the Purchased Shares, free and clear of all Liens, with all necessary share transfer and other documentary stamps attached, and the Purchased Shares shall be listed on the New York Stock Exchange, Inc. (b) Secretary's Certificate. A certificate executed by the Secretary of the Company dated the Closing Date, which certifies that (i) attached is a true, correct and complete copy of the Articles of Incorporation of the Company and each of the Material Subsidiaries, as amended, certified as of a recent date by the Secretary of State or equivalent Government Authority in the jurisdiction of incorporation or organization; (ii) attached is a true, correct and complete copy of the Bylaws of the Company and each of the Material Subsidiaries, as in full force and effect; (iii) attached are certificates issued by the appropriate Government Authority evidencing the good standing of the Company and each Material Subsidiary in its jurisdiction of incorporation or organization; (iv) attached are true, correct and complete copies of certificates of authority to conduct insurance business issued by the appropriate Government Authorities with respect to the Company and each Material Subsidiary in each jurisdiction in which the Company or such Material Subsidiary conducts any insurance business; (v) attached are true, correct and complete resolutions of the Board authorizing this Agreement, the Registration Rights Agreement and the Stockholders Agreement, and authorizing the acquisition by Buyer of the Purchased Shares (which constitutes all action necessary for the representations in Section 3.13 to be true and correct); (vi) such resolutions were duly adopted, are in full force and effect and have not been rescinded or amended; (vii) there are no proceedings or other action for dissolution, liquidation or reorganization of the Company or any of its Material Subsidiaries; and (viii) the incumbency and specimen signatures of officers who have executed instruments, agreements and other documents in connection with transactions contemplated hereby. (c) Consents. The consents set forth in Schedule 3.4. (d) Registration Rights Agreement and Stockholders Agreement. The Registration Rights Agreement as executed by the Company, and the Stockholders Agreement as executed by the Company, EIM, GALIC and GenAmerica. (e) Legal Opinion. Opinions dated the Closing Date covering the matters set forth in Exhibits C-1, C-2 and C-3 attached hereto from Bryan Cave LLP, counsel for the Company, Lewis, Rice & Fingersh, L.C., counsel for GenAmerica, and the General Counsel of the Company, respectively. -19- 24 (f) Counsel Fees. The fees of Dewey Ballantine LLP, counsel for the Buyer, not to exceed $50,000, as an offset to the payment of the Purchase Price, as set forth in Section 6.2(a). (g) Listing. Notice of listing of the Purchased Shares on the New York Stock Exchange, Inc., subject to official notice of issuance. (h) Receipt. An acknowledgement by the Company of its receipt of the Purchase Price, less the fees of Dewey Ballantine LLP, counsel for Buyer. Section 6.2 Buyer's Deliveries to the Company At the Closing, Buyer will deliver, or cause to be delivered, to the Company the following: (a) Purchase Price. The Purchase Price by wire transfer of immediately available funds in U.S. dollars to the account or accounts specified by the Company, less the fees of Dewey Ballantine LLP, counsel for Buyer, not to exceed $50,000. (b) Registration Rights Agreement and Stockholders Agreement. The Registration Rights Agreement as executed by Buyer, and the Stockholders Agreement as executed by Buyer. ARTICLE VII SURVIVAL Section 7.1 Survival. All representations, warranties and covenants and agreements of the parties contained herein (including the schedules or exhibits hereto), or any certificate, document or other instrument delivered in connection herewith, shall survive the Closing for three years, regardless of any investigation made at any time by Buyer or on its behalf, and shall thereupon expire except with respect to claims asserted at or prior to such time; provided, however, that (i) the representations and warranties set forth in Sections 3.2 and 3.3(c) shall survive the Closing forever, regardless of any investigation made at any time by Buyer or on its behalf, and (ii) the covenant in Section 5.1 shall survive the Closing but shall expire on the earlier of the date of the Closing (as defined in the General American Agreement) under the General American Agreement or one year after the disposition of the Purchased Shares by Buyer; provided, further, that (i) such representations, warranties and covenants and agreements shall apply only with respect to the transactions contemplated by this Agreement and shall not apply to, or be used or relied on in any other transaction, including, without limitation, the transactions contemplated by the General American Agreement. -20- 25 ARTICLE VIII EXPENSES Section 8.1 Expenses. The Company agrees to pay, and hold Buyer harmless against liability for the payment of, (a) Buyer's reasonable out-of-pocket costs and legal fees arising in connection with the negotiation and execution of this Agreement, the Registration Rights Agreement and the Stockholders Agreement, and the Closing and completion of the transactions contemplated by this Agreement, including, without limitation, reasonable fees and expenses of up to $50,000 of Dewey Ballantine LLP, counsel for Buyer; (b) stamp and other transfer taxes which may be payable in respect of (i) the execution and delivery of this Agreement, and (ii) the issuance of the Purchased Shares; (c) reasonable fees and expenses (including, without limitation, reasonable attorneys' fees) incurred in respect of the enforcement by Buyer of any material rights granted to Buyer under this Agreement, the Registration Rights Agreement or the Stockholders Agreement, provided that Buyer succeeds in any material respect in the enforcement of such rights; and (d) reasonable fees and expenses (including, without limitation, reasonable attorneys' fees) incurred in connection with any consent relating to material matters requested to be given by Buyer pursuant to this Agreement, the Registration Rights Agreement or the Stockholders Agreement. ARTICLE IX MISCELLANEOUS Section 9.1 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 9.2 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 9.3 Entire Agreement. This Agreement (including the schedules and exhibits hereto), 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, 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. -21- 26 Section 9.4 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, such 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 1370 Timberlake Manor Parkway Chesterfield, Missouri 63107-6039 Attention: Jack B. Lay, Executive Vice President and Chief Financial Officer Telecopy: 636-736-7839 with copies to: Reinsurance Group of America, Incorporated c/o General American Life Insurance Company 700 Market Street St. Louis, Missouri 63101 Attention: James E. Sherman, Esq. Telecopy: 314-444-0510 Bryan Cave LLP One Metropolitan Square 211 North Broadway St. Louis, Missouri 63102-2750 Attention: R. Randall Wang, Esq. Telecopy: 314-259-2020 Notices to Buyer shall be addressed to: Metropolitan Life Insurance Company One Madison Avenue New York, New York 10010 Attention: William Wheeler, Treasurer Telecopy: 212-578-0266 with a copy to: Dewey Ballantine LLP 1301 Avenue of the Americas New York, New York 10019 Attention: Linda E. Ransom, Esq. Telecopy: 212-259-6333 -22- 27 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 9.5 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 Buyer may assign its rights and obligations hereunder to a Subsidiary or Affiliate of Buyer without the consent of the Company (provided that Buyer shall remain, become or be deemed the primary obligor hereunder if such Subsidiary or Affiliate has a net worth of less than $50 million at the time of such assignment or thereafter and, in all other cases, such Subsidiary or Affiliate shall execute a counterpart of this Agreement as if it were the original party hereto and assumes Buyer's obligations hereunder pursuant to an instrument in form and substance reasonably satisfactory to the Company). Section 9.6 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 Exhibits mean Sections or Articles of or Exhibits to this Agreement unless otherwise stated. Section 9.7 Amendments and Waivers. This Agreement shall 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. Section 9.8 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. -23- 28 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/ Jack B. Lay ---------------------------------------- Name: Jack B. Lay Title: Executive Vice President and Chief Financial Officer METROPOLITAN LIFE INSURANCE COMPANY By: /s/ William J. Wheeler ---------------------------------------- Name: William J. Wheeler Title: Senior Vice-President & Treasurer -24- EX-2 3 GENERAL AMERICAN AGREEMENT 1 Exhibit 2 STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT, dated as of August 26, 1999, by and between GENERAL AMERICAN MUTUAL HOLDING COMPANY, a Missouri mutual insurance holding company ("Seller"), and METROPOLITAN LIFE INSURANCE COMPANY, a New York mutual life insurance company ("Buyer"). RECITALS WHEREAS, Seller is the owner of 1,000 shares (the "Shares") of the common stock, no par value, of GenAmerica Corporation, a Missouri corporation (the "Company"), which Shares constitute all of the issued and outstanding shares of the Company's capital stock; and WHEREAS, Seller desires to sell, and Buyer desires to purchase, the Shares, upon the terms and subject to the conditions set forth herein and pursuant to a plan of reorganization containing the terms specified in Exhibit A and such other terms as are reasonably acceptable to Buyer and Seller (as amended from time to time, the "Reorganization Plan") to be implemented through a proceeding (the "Reorganization Proceeding") proposed to be commenced under the Missouri Insurance Code. NOW THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be bound hereby, the parties agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions. For all purposes of this Agreement, the following terms shall have the respective meanings set forth in this Section 1.1 (such definitions to be equally applicable to both the singular and plural forms of the terms herein defined): "Action" means any legal, administrative, arbitration or other similar proceeding, claim, action or governmental or regulatory investigation of any nature. "Actual Section 338(h)(10) Tax Liability" has the meaning set forth in Section 8.6(c). "Affiliate" means, 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 2 "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. "Agreement" means this Stock Purchase Agreement, including the Schedules and Exhibits hereto, as it may hereafter be amended from time to time. "Allocation" has the meaning set forth in Section 8.6(b). "Alternative Transaction" has the meaning set forth in Section 6.13(b). "Ancillary Agreements" means the Escrow Agreement, and any other agreements entered into by Buyer and Seller in connection with the interim arrangements described in Article VII. "Applicable Insurance Laws" has the meaning set forth in Section 4.17(b). "Applicable Law" means any federal, state, local or foreign law (including common law), statute, ordinance, rule, regulation, permit, regulatory agreement with a Governmental Authority, order, writ, injunction, judgment or decree applicable to a Person or any such Person's subsidiaries, properties, assets, officers, directors, employees or agents. "Asserted Liability" has the meaning set forth in Section 10.4(a). "Audit" has the meaning set forth in Section 4.14(e). "Business Day" means any day other than a Saturday, a Sunday or a day on which banks in St. Louis, Missouri or New York, New York are required to be closed for regular banking business. "Buyer" has the meaning set forth in the first paragraph of this Agreement. "Claims Notice" has the meaning set forth in Section 10.4(a). "Closing" has the meaning set forth in Section 3.1. "Closing Date" means the date of the Closing. "COBRA" means Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985. "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute. 2 3 "Company" has the meaning set forth in the Recitals of this Agreement. "Company Confidentiality Agreements" means those certain agreements between Seller and the potential bidders for the Shares with respect to the confidentiality of information about Seller, the Company and their respective Affiliates and other related Persons that were provided to such potential bidders by or at the request of Seller or the Company, as such agreements may be amended from time to time. "Company Employees" means those current or former employees of the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary, each of whom, on the Closing Date, is either: (a) actively employed by the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary, including an employee who, on the Closing Date, is absent from employment due to illness, vacation, injury, military service or other authorized absence (including an employee who is "disabled" within the meaning of either the short-term or the long-term disability plan currently applicable to such employee (collectively, the "Disability Plans") or who is on approved leave under the Family Medical and Leave Act); (b) a former employee who, on the Closing Date, is receiving long-term disability benefits under the Disability Plans; (c) a former employee who, on the Closing Date, has previously satisfied the requirements for retiree medical and/or life insurance coverage under the retiree medical and/or life insurance plans currently applicable to the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary; (d) a former employee who, on the Closing Date, is receiving COBRA benefits or who is in an election period following a COBRA qualifying event under the terms of the plans currently applicable to the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary; or (e) a former employee who, on the Closing Date, has previously satisfied the requirements for benefits under the terms of the retirement plan and profit sharing/401(k) plan currently applicable to the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary; but does not mean (i) other former employees and (ii) Persons not otherwise actively employed by the Company, any Subsidiary, 3 4 Conning, any Conning Subsidiary, RGA or any RGA Subsidiary (other than any employee specifically included above). "Company GAAP Financial Statements" has the meaning set forth in Section 4.6(a). "Confidentiality Agreement" means that certain agreement dated August 13, 1999, between Buyer and Seller with respect to the confidentiality of information about Seller, the Company and their respective Affiliates and other related Persons which was provided to Buyer by or at the request of Seller or the Company, as such agreement may be amended from time to time. "Conning" means Conning Corporation, a Missouri corporation. "Conning GAAP Financial Statements" has the meaning set forth in Section 4.6(c). "Conning Interim Financial Statements" has the meaning set forth in Section 4.6(c). "Conning Subsidiary" means the Persons listed on Schedule 1.1(c). "Consolidated Return" has the meaning set forth in Section 8.3(a). "Contacts" has the meaning set forth in Section 6.1(a). "Contest" has the meaning set forth in Section 8.5(a). "Control Transaction" has the meaning set forth in Section 6.13(b). "Contracts" has the meaning set forth in Section 4.15(a). "Department" means the Missouri Department of Insurance. "Director" means the Director of the Department. "Disability Plans" has the meaning set forth in the definition of "Company Employees." "Election" has the meaning set forth in Section 8.6(a). "Encumbrance" means any lien, pledge, security interest, claim, easement, limitation, restriction or encumbrance of any kind or nature whatsoever, or any agreement to give any of the foregoing; provided, however, that this definition of "Encumbrance" shall not include: (a) with respect to all property other than the Shares,(i) the Supervision Order, (ii) liens for 4 5 current Taxes and assessments not yet due and payable, including, without limitation, liens for nondelinquent ad valorem Taxes and nondelinquent statutory liens arising other than by reason of any default on the part of Seller, the Company or any Subsidiary for which appropriate reserves have been established and are reflected on the relevant financial statements, (iii) such liens, minor imperfections of title or easements on real property, leasehold estates or personalty as do not detract from the value thereof in a material respect and do not interfere in a material respect with the present use of the property subject thereto, and (iv) materialmen's, mechanics', workmen's, repairmen's, employees', carriers', warehousemen's and other like liens arising in the ordinary course of business or relating to any construction, rebuilding or repair of any property leased pursuant to any lease agreement, so long as any such lien does not materially impair the value of such leased property; and (b) with respect to the Shares only, (i) any such lien, pledge, security interest, claim, easement, limitation, restriction or encumbrance arising solely as a result of any action taken by Buyer or any of its Affiliates, and (ii) any limitation or restriction imposed upon the transfer of the Shares by any registration provision of the Securities Act of 1933, as amended, or any applicable state securities or insurance law regulating the disposition of the Shares. "Environmental Laws" means any Applicable Law that relates to or otherwise imposes liability or standards of conduct concerning the environment (including ambient air, surface water, groundwater, land and subsurface strata), natural resources or human health and safety, each with respect to the discharges, emissions, releases, or threatened releases, presence, manufacture, processing, generation, distribution, use, treatment, storage, disposal, cleanup, transport or handling of Hazardous Materials, including the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act, as amended, the Resource Conservation and Recovery Act, as amended, the Toxic Substances Control Act, as amended, the Federal Water Pollution Control Act, as amended, the Clean Water Act, as amended, the Clean Air Act, as amended, any so-called "Superlien" law, and any other similar federal, state or local law currently in effect. "Environmental Permits" means all permits, approvals, identification numbers, licenses and other authorizations required under any Environmental Law. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder. "ERISA Affiliate" as to any Person means any entity required to be aggregated with such Person pursuant to Section 414(b) or (c) of the Code and/or Section 4001(b) of ERISA. 5 6 "Escrow" means the escrow account created pursuant to and intended to operate in accordance with the terms of the Escrow Agreement. "Escrow Agent" means the Escrow Agent identified in the Escrow Agreement, which Escrow Agent shall be a commercial banking institution with capital equal to at least $100 million and mutually agreed to by Buyer and Seller prior to the Closing. "Escrow Agreement" means an Escrow Agreement substantially in the form of Exhibit B hereto. "GAAP" means generally accepted accounting principles as used in the United States of America as in effect at the time any applicable financial statements were prepared or any act requiring the application of GAAP was performed. "GALIC" means General American Life Insurance Company, a Missouri insurance company. "Governmental Authority" means any nation or government, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder. "Hazardous Material" means any (i) hazardous substance, toxic substance, chemical substance, hazardous waste, hazardous material, contaminant, toxic pollutant, extremely hazardous substance, chemical or pollutant (as such terms are defined by or within the meaning of any Environmental Law), (ii) any other substance (including any product), in relevant quantity or concentration, regulated as harmful or potentially harmful to human health or the environment, (iii) petroleum, petroleum products, by-products or additives, crude oil or fraction thereof, (iv) asbestos and asbestos-containing material, (v) polychlorinated biphenyls, (vi) lead-based paint, or (vii) radioactive material. "Hypothetical Stock Sales Tax Liability" has the meaning set forth in Section 8.6(c). "Indemnified Litigation" has the meaning set forth in Section 10.2. "Indemnifying Party" has the meaning set forth in Section 10.4(a). "Indemnitee" has the meaning set forth in Section 10.4(a). 6 7 "Independent Accounting Firm" has the meaning set forth in Section 8.6(b). "Intellectual Property Right" has the meaning set forth in Section 4.12(a). "Interim Financial Statements" has the meaning set forth in Section 4.6(a). "IRS" means the Internal Revenue Service. "Leased Real Property" means the real property leased by the Company or any Subsidiary, as tenant, together with, to the extent leased by the Company or any Subsidiary, all buildings and other structures, facilities or improvements currently located thereon. "Life Insurance Subsidiaries" means the Persons listed on Schedule 1.1(a). "Loss" means any and all claims, losses, liabilities, damages, costs and expenses (including attorney's, accountant's, consultant's and expert's fees and expenses) that are imposed upon or otherwise incurred or suffered by the relevant party. "Material Adverse Effect" means a material adverse effect on the financial condition or results of operations of the Company, the Subsidiaries, Conning, the Conning Subsidiaries, RGA and the RGA Subsidiaries, taken as a whole; provided, however, to the extent such effect results from any of the following, such effect shall not be considered a Material Adverse Effect: (i) general conditions applicable to the economy of the United States or elsewhere, including changes in interest rates and changes in the stock or other financial markets; (ii) conditions generally affecting the life insurance, life reinsurance or securities industries; or (iii) conditions or effects resulting from or relating to the announcement or the existence or terms of this Agreement or the consummation of the transactions contemplated hereby (including, without limitation, any indication by any rating agency that the claims paying ability rating of the Company or any Subsidiary will be adversely affected as result of the consummation of the transactions contemplated hereby); and provided, further, none of the following shall be considered a Material Adverse Effect: (a) the inability or any limit on the ability of any of the Life Insurance Subsidiaries or RGA or any RGA Subsidiary to write new or renewal insurance or reinsurance business, provided that any such limit imposed by a state insurance department is reasonably likely to be removed prior to 60 days after the Closing Date (it being understood that Buyer will use all commercially reasonable efforts to have any such limit removed); (b) any changes prior to the date hereof in the value of the investment portfolios of the Company, any Life Insurance Subsidiary, RGA, any RGA Subsidiary, Conning or any 7 8 Conning Subsidiary; (c) the Supervision Order and the Reorganization Proceeding including any rehabilitation proceeding involving GALIC; (d) any alleged breaches of contracts relating to the Stable Value Business and the direct consequences thereof; (e) any alleged default in connection with 8.525% Capital Securities issued by a wholly owned trust of the Company or the 7.625% Surplus Notes issued by GALIC and the direct consequences thereof; or (f) any downgrade of the financial strength or claims paying rating of the Company, any Subsidiary, RGA, any RGA Subsidiary, Conning or any Conning Subsidiary. "MEC" has the meaning set forth in Section 4.26(iv). "Missouri Insurance Code" means title XXIV of the Revised Statutes of Missouri, section 374 et seq., as amended from time to time. "Owned Real Property" means the real property owned by the Company or any Subsidiary, together with all buildings and other structures, facilities or improvements currently located thereon, and all fixtures, systems, equipment of the Company or any Subsidiary attached or appurtenant thereto. "Permits" has the meaning set forth in Section 4.10(a). "Person" means any individual, corporation, company, partnership (limited or general), joint venture, limited liability company, association, trust or other entity. "Proposal" has the meaning set forth in Section 6.13(b). "Purchase Price" has the meaning set forth in Section 2.1. "Records" means all records and other documents which are used by the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary, to administer, reflect, monitor, evidence or record information relating to such Person's business or conduct and all such records and other documents, including all such records maintained on electronic or magnetic media, or in any electronic database system of the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary, or necessary to comply with any Applicable Law with respect to the business of the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary. "Reorganization Plan" has the meaning set forth in the Recitals of this Agreement. "Reorganization Proceeding" has the meaning set forth in the Recitals of this Agreement. 8 9 "Representative" has the meaning set forth in Section 6.13(a). "RGA" means Reinsurance Group of America, Incorporated, a Missouri corporation. "RGA GAAP Financial Statements" has the meaning set forth in Section 4.6(b). "RGA Interim Financial Statements" has the meaning set forth in Section 4.6(b). "RGA Subsidiaries" means the Persons listed on Schedule 1.1(d). "Rights" means the rights issued pursuant to the Rights Agreement. "Rights Agreement" means the Rights Agreement, dated as of May 4, 1993, between RGA and Chase Mellon Shareholder Services, L.L.C. (as successor to Boatman's Trust Company), as amended. "SAP Financial Statements" has the meaning set forth in Section 4.6(d). "SEC" means the Securities and Exchange Commission. "SEC Documents" has the meaning set forth in Section 4.24. "Seller" has the meaning set forth in the first paragraph of this Agreement. "Seller Plans" has the meaning set forth in Section 4.13(a). "Shares" has the meaning set forth in the Recitals of this Agreement. "Stable Value Business" means funding agreements and guaranteed investment contracts issued by GALIC. "Subsidiaries" means the Persons listed on Schedule 1.1(b). "Supervision Order" means that order entered on August 10, 1999 placing GALIC under the Department's supervision, as such order may from time to time be modified, amended, supplemented or replaced. "Supplemental Schedules" has the meaning set forth in Section 6.8(b). 9 10 "Tax" means all taxes, charges, fees and levies based upon gross or net income, gross receipts, franchises, premiums, profits, sales, use, value added, transfer, employment or payroll, including, without limitation, any ad valorem, environmental, excise, license, occupation, property, severance, stamp, withholding, or windfall profit tax, any custom duty or other tax, together with any interest credit or charge, penalty, addition to tax or additional amount imposed by or payable to any Taxing Authority. "Tax Allocation Agreements" means the tax allocation agreements of which the Company, the Subsidiaries, RGA, the RGA Subsidiaries, Conning or the Conning Subsidiaries are parties, which are noted on Schedule 1.1(e), true and correct copies of which were previously provided to Buyer. "Tax Election Amount" has the meaning set forth in Section 8.6(c). "Tax-Qualified Retirement Contract" means any insurance policy or annuity that is held as part of or in connection with a tax-qualified retirement plan described in section 401(a), section 403(a) or section 403(b) of the Code or as part of or in connection with any individual retirement annuity described in section 408(b) of the Code. "Tax Return" means with respect to any corporation or group of corporations, all reports, estimates, extension requests, information statements and returns relating to, or required to be filed in connection with, any payment of any Tax. "Taxing Authority" means the Internal Revenue Service and any other domestic or foreign Governmental Authority responsible for the administration of any Tax. "Undisputed Amount" has the meaning set forth in Section 8.6(d). "Wire Transfer" means a payment in immediately available funds by wire transfer in lawful money of the United States of America to such account or accounts as shall have been designated by notice to the paying party. ARTICLE II PURCHASE OF SHARES Section 2.1 Purchase of Shares. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing Seller shall sell to Buyer, and Buyer shall purchase from Seller, the Shares for a purchase price of One Billion Two Hundred Million Dollars ($1,200,000,000), subject to adjustment 10 11 in accordance with Section 2.2 (as so adjusted, the "Purchase Price"). The Purchase Price shall be deposited into the Escrow. Section 2.2 Adjustment of Purchase Price. The Purchase Price shall be adjusted as follows: (a) In the event that all approvals required from Governmental Authorities (other than the Department or the court before which the Reorganization Proceeding is brought) have been obtained and in the event that the Closing Date is a date 120 or more but less than 180 calendar days after the date of this Agreement, the Purchase Price shall be reduced by One Million Dollars ($1,000,000) for each calendar day in the period commencing on the later of the date that the last approval from a Governmental Authority (other than the Department or the court before which the Reorganization Proceeding is brought) has been obtained or the 120th day after the date of this Agreement and ending on the Closing Date (inclusive). (b) In the event that all approvals required from Governmental Authorities (other than the Department or the court before which the Reorganization Proceeding is brought) have been obtained, and in the event that the Closing Date is a date 180 or more calendar days after the date of this Agreement, the Purchase Price shall be reduced by One Million Dollars ($1,000,000) for each calendar day in the period commencing on the 120th day and ending on the 179th day after the date of this Agreement (inclusive), and Two Million Dollars ($2,000,000) for each calendar day in the period commencing on the 180th day after the date of this Agreement and ending on the Closing Date (inclusive); provided, however, that any reductions in the Purchase Price pursuant to this Section 2.2(b) shall not commence until the date that the last approval from a Governmental Authority (other than the Department or the court before which the Reorganization Proceeding is brought) has been obtained if so obtained after the 120th day after the date of this Agreement. ARTICLE III THE CLOSING Section 3.1 Closing. Upon the terms and subject to the conditions of this Agreement, the closing of the purchase and sale of the Shares (the "Closing") shall be at 10:00 A.M. local time at the offices of LeBoeuf, Lamb, Greene & MacRae, L.L.P., 125 West 55th Street, New York, New York 10019, on the second Business Day following the date on which all of the conditions set forth in Article IX (other than those conditions designating instruments, certificates or other documents to be delivered at the Closing) shall have been satisfied or waived, or such other location, date and time as Buyer and Seller shall agree upon in writing. 11 12 Section 3.2 Closing Deliveries. At the Closing, the parties hereto shall take the following actions: (a) Seller shall deliver to Buyer one or more certificates representing all of the Shares, duly executed in blank or accompanied by stock powers duly executed in blank, in proper form for transfer, with all appropriate stock transfer tax stamps affixed, such Shares being free and clear of all Encumbrances; (b) Except as set forth on Schedule 3.2(b), Seller shall deliver to Buyer certificates as to the good standing of the Company and the Subsidiaries in the respective jurisdictions of their incorporation, together with a copy of the Certificate of Incorporation of the Company certified by the Secretary of State of the State of Missouri; (c) Seller shall deliver to Buyer a copy of any approvals required in connection with the Reorganization Proceeding; (d) Seller shall deliver to Buyer resolutions of the board of directors of Seller, certified by the Secretary or Assistant Secretary of Seller, approving and authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; (e) Seller shall deliver a certificate of the Secretary or Assistant Secretary of Seller as to the incumbency of the officers executing this Agreement and the Ancillary Agreements and the genuineness of their signatures; (f) Seller shall deliver the minute books, stock ledgers, corporate seal and all other corporate books and records of the Company; (g) Buyer shall deliver to the Escrow Agent the Purchase Price by Wire Transfer; (h) Buyer shall deliver to Seller a receipt evidencing receipt by Buyer of the Shares; (i) Buyer shall deliver to Seller resolutions of the board of directors of Buyer, certified by the Secretary or Assistant Secretary of Buyer, approving and authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; (j) Seller shall deliver to Buyer resolutions of the board of directors of RGA, certified by the Secretary or Assistant Secretary of RGA, approving and authorizing the indirect acquisition by Buyer of RGA Common Shares for purposes of Section 351.459 of the Missouri Revised 12 13 Statutes, making the Rights Agreement inapplicable to the transactions contemplated hereby and by the Ancillary Agreements and taking such actions as are necessary to provide that Section 351.407 of the Missouri Revised Statutes does not apply to the transactions contemplated hereby and by the Ancillary Agreements; and (k) Seller shall deliver to Buyer resolutions of the board of directors of Conning, certified by the Secretary or Assistant Secretary of Conning, approving and authorizing the indirect acquisition by Buyer of Conning common shares. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Buyer as follows: Section 4.1 Organization and Related Matters. (a) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Missouri and has the corporate power and authority to carry on its business as it is now being conducted and to own, lease or operate all of its properties and assets, and is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the nature of the business conducted by it or the character of the assets owned by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller is a mutual insurance holding company duly incorporated, validly existing and in good standing under the laws of the State of Missouri. Section 4.2 Subsidiaries. (a) Except as set forth on Schedule 4.2, all of the outstanding shares of capital stock of the Subsidiaries, Conning, the Conning Subsidiaries, RGA and the RGA Subsidiaries are owned beneficially and of record, directly or indirectly, by the Company, free and clear of any Encumbrances. Except as set forth on Schedule 4.2, each Subsidiary, Conning, each Conning Subsidiary, RGA and each RGA Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, and has the corporate power and authority to carry on its business as now being conducted and to own, lease and operate all of its properties and assets. Each Subsidiary, Conning, each Conning Subsidiary, RGA and each RGA Subsidiary is duly licensed or qualified to do business and is in good standing and has all insurance licenses in each jurisdiction in which the nature of the business conducted by it or the character of the assets owned by it makes such qualification or licensing 13 14 necessary, except where the failure to be so qualified or licensed would not, individually or in the aggregate, have a Material Adverse Effect. Each insurance license of the Subsidiaries, including but not limited to each authorization to transact reinsurance, is in full force and effect without amendment, limitation or restriction other than as described in Schedule 4.2, and, except for the Supervision Order and the Reorganization Proceeding (including any rehabilitation proceeding involving GALIC), Seller does not have knowledge of any event, inquiry or proceeding which could reasonably be expected to lead to the revocation, amendment, failure to renew, limitation, suspension or restriction of any such insurance license, except, in each case, such failures to be in full force and effect and such revocations, amendments, failures to renew, limitations, suspensions and restrictions that would not, individually or in the aggregate, have a Material Adverse Effect. Other than Conning, the Conning Subsidiaries, RGA and the RGA Subsidiaries, the Company has no direct or indirect subsidiaries except as set forth on Schedule 1.1(b). Conning has no direct or indirect subsidiaries except the Conning Subsidiaries. RGA has no direct or indirect subsidiaries except the RGA Subsidiaries. (b) Except as set forth on Schedule 4.2, and except for the stock of the Subsidiaries, Conning, each Conning Subsidiary, RGA and each RGA Subsidiary and portfolio investments made in the ordinary course of business (consistent with past practice), there are no corporations, partnerships or other entities in which the Company owns, of record or beneficially, any direct or indirect equity interest or any right (contingent or otherwise) to acquire the same. Section 4.3 Authority; No Violation. (a) Seller has full corporate power and authority to execute and deliver this Agreement and, assuming the approval of the Director required by the Supervision Order and the Reorganization Proceeding (including any rehabilitation proceeding involving GALIC), to consummate the transactions contemplated hereby, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly approved by all requisite corporate action on the part of Seller, and no other corporate proceedings on the part of Seller are necessary to approve this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Seller and (assuming (i) the approval of the Director required by the Supervision Order, (ii) any approvals required in connection with the Reorganization Proceeding and (iii) the due authorization, execution and delivery of this Agreement by Buyer) constitute valid and binding obligations of Seller, enforceable against Seller in accordance with their terms. (b) Except as set forth on Schedule 4.3(b) and assuming that the consents and approvals referred to in Section 4.4 are duly obtained, neither the execution and delivery of this 14 15 Agreement by Seller, nor the consummation by Seller of the transactions contemplated hereby to be performed by it, nor compliance by Seller with any of the terms or provisions hereof, will (i) violate any provision of the Certificate of Incorporation or Bylaws of Seller, the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA and any RGA Subsidiary, or (ii) (A) violate in any respect any Applicable Law with respect to Seller, the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA and any RGA Subsidiary, or any of their respective properties or assets, (B) result in the creation of any Encumbrance upon any of the Shares or upon any of the assets or properties of the Seller, the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA and any RGA Subsidiary, or (C) violate, conflict with, result in a breach of any provision of, or constitute a default under, any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which Seller, the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA and any RGA Subsidiary, is a party, or by which Seller, the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA and any RGA Subsidiary, or any of their respective properties or assets, may be bound or affected, except for such violations, Encumbrances, conflicts, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect. Section 4.4 Consents and Approvals. Except for (i) the approval of the Director required by the Supervision Order, (ii) any approvals or orders required in connection with the Reorganization Proceeding, (iii) approvals or consents of Governmental Authorities under the insurance holding company laws of Missouri, California, New York, Illinois, and Texas, (iv) consents or approvals required under the Investment Company Act of 1940, as amended, the Investment Advisers Act of 1940, as amended, or the Securities Exchange Act of 1934, as amended, (v) the applicable filings under the HSR Act, (vi) the matters set forth on Schedule 4.4, and (vii) such other filings, notifications, authorizations, consents or approvals the failure to make or obtain which would not, individually or in the aggregate, have a Material Adverse Effect, no consents or approvals of or filings or registrations with any Governmental Authority or third party are necessary in connection with the execution and delivery by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby. Seller is not aware of any consents specified in the preceding sentence that it believes it is not reasonably likely to obtain. Seller has delivered to Buyer a true and correct copy of the Supervision Order. Section 4.5 Stock Ownership. Seller owns beneficially and of record all of the Shares, free and clear of all Encumbrances. Upon consummation of the transactions contemplated hereby, Buyer will own all of the issued and outstanding capital stock of the Company free and clear of all Encumbrances. Upon approval of the Director required by the 15 16 Supervision Order and any approvals required in connection with the Reorganization Proceeding, Seller shall have the full and unrestricted power to sell, assign, transfer and deliver the Shares to Buyer upon the terms and subject to the conditions of this Agreement free and clear of Encumbrances. There are no shares of capital stock of the Company issued or outstanding other than the Shares. All of the Shares are duly authorized, validly issued, fully paid, nonassessable and free of any preemptive rights. There is no outstanding option, warrant, right, subscription, call, unsatisfied preemptive right, convertible or exchangeable security, or other agreement or right of any kind to purchase or otherwise acquire any capital stock of the Company. Except as set forth on Schedule 4.5, all of the issued and outstanding shares of capital stock of the Subsidiaries, RGA, the RGA Subsidiaries, Conning and the Conning Subsidiaries are duly authorized, validly issued, fully paid, nonassessable and free of any preemptive rights, and are owned beneficially and of record by the Company or another of the Subsidiaries, free and clear of all Encumbrances. Except as set forth on Schedule 4.5, there is no outstanding option, warrant, right, subscription, call, unsatisfied preemptive right, convertible or exchangeable security, or other agreement or right of any kind to purchase or otherwise acquire, in each case from the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary, any capital stock of any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary. Except as set forth on Schedule 4.5, there is no outstanding security of any kind convertible into or exchangeable for the capital stock of any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary and there is no outstanding contract or other agreement of Seller, the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary to purchase, redeem or otherwise acquire any outstanding shares of capital stock or any other equity security of the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary. Section 4.6 Financial Statements. (a) Seller has previously furnished Buyer with true and correct copies of audited consolidated financial statements for the Company and the Subsidiaries as of and for the years ended December 31, 1998, 1997 and 1996 (collectively, the "Company GAAP Financial Statements") and interim unaudited consolidated financial statements for the Company and the Subsidiaries as of and for the quarterly periods ended March 31, 1999, and June 30, 1999 (collectively, the "Interim Financial Statements"). Seller has also previously furnished Buyer with a summary of adjustments proposed to be made to certain future financial statements. Subject to the adjustments referred to in the second sentence of this Section 4.6, each of the balance sheets included in the Company GAAP 16 17 Financial Statements fairly presents in all material respects the financial position of the Company and the Subsidiaries as of its date and each of the statements of operations and cash flow statements included in the Company GAAP Financial Statements fairly presents in all material respects the results of operations and cash flows of the Company and the Subsidiaries for the period therein set forth, in each case in accordance with GAAP applied on a consistent basis (except as may be disclosed in the notes thereto). Subject to the adjustments referred to in the second sentence of this Section 4.6, the Interim Financial Statements were prepared in a manner consistent with that employed in the Company GAAP Financial Statements. The Interim Financial Statements do not contain footnote disclosures and are subject to normal recurring year-end adjustments, but otherwise fairly present in all material respects the financial position and results of operations of the Company and the Subsidiaries for the periods and as of the dates therein set forth. (b) Seller has previously furnished Buyer with true and correct copies of audited consolidated financial statements for RGA and the RGA Subsidiaries as of and for the years ended December 31, 1998, 1997 and 1996 (collectively, the "RGA GAAP Financial Statements") and interim unaudited consolidated financial statements for RGA and the RGA Subsidiaries as of and for the quarterly periods ended March 31, 1999, and June 30, 1999 (collectively, the "RGA Interim Financial Statements"). Each of the balance sheets included in the RGA GAAP Financial Statements fairly presents in all material respects the financial position of RGA and the RGA Subsidiaries as of its date and each of the statements of operations and cash flow statements included in the RGA GAAP Financial Statements fairly presents in all material respects the results of operations and cash flows of RGA and the RGA Subsidiaries for the period therein set forth, in each case in accordance with GAAP applied on a consistent basis (except as may be disclosed in the notes thereto). The RGA Interim Financial Statements were prepared in a manner consistent with that employed in the RGA GAAP Financial Statements. The RGA Interim Financial Statements do not contain footnote disclosures and are subject to normal recurring year-end adjustments, but otherwise fairly present in all material respects the financial position and results of operations of RGA and the RGA Subsidiaries for the periods and as of the dates therein set forth. (c) Seller has previously furnished Buyer with true and correct copies of audited consolidated financial statements for Conning and the Conning Subsidiaries as of and for the years ended December 31, 1998, 1997 and 1996 (collectively, the "Conning GAAP Financial Statements") and interim unaudited consolidated financial statements for Conning and the Conning Subsidiaries as of and for the quarterly periods ended March 31, 1999, and June 30, 1999 (collectively, the "Conning Interim Financial Statements"). Each of the balance sheets included in the Conning GAAP Financial Statements fairly presents in all material respects the financial position of Conning and the Conning Subsidiaries as of its date and each of the statements of operations and cash flow statements included in the Conning GAAP 17 18 Financial Statements fairly presents in all material respects the results of operations and cash flows of Conning and the Conning Subsidiaries for the period therein set forth, in each case in accordance with GAAP applied on a consistent basis (except as may be disclosed in the notes thereto). The Conning Interim Financial Statements were prepared in a manner consistent with that employed in the Conning GAAP Financial Statements. The Conning Interim Financial Statements do not contain footnote disclosures and are subject to normal recurring year-end adjustments, but otherwise fairly present in all material respects the financial position and results of operations of Conning and the Conning Subsidiaries for the periods and as of the dates therein set forth. (d) Seller has previously furnished Buyer with copies of audited statutory financial statements of each Life Insurance Subsidiary and each RGA Subsidiary as of and for the years ended December 31, 1998, 1997 and 1996, and unaudited statutory financial statements of each Life Insurance Subsidiary and each RGA Subsidiary as of and for the period ended June 30, 1999, prepared in conformity with accounting practices prescribed or permitted by their respective jurisdictions of domicile (collectively, the "SAP Financial Statements"). Each of the balance sheets included in the SAP Financial Statements fairly presents in all material respects the financial position of the reporting Person as of its date and each of the statements of operations and cash flows included in the SAP Financial Statements fairly presents in all material respects the results of operations and cash flows of the reporting Person for the period therein set forth, in each case in accordance with statutory accounting practices prescribed or permitted by the applicable jurisdiction on a consistent basis. No material deficiencies have been asserted by any Governmental Authority with respect to the SAP Financial Statements, and the SAP Financial Statements comply in all material respects with all Applicable Law. (e) The books of account and other financial records of the Company and each material Subsidiary: (i) reflect all material items of income and expense and all material assets and liabilities required to be reflected therein in accordance with GAAP or statutory accounting principles, as applicable, (ii) are in all material respects complete and correct, and (iii) have been maintained in accordance with what the Company or such Subsidiary believes to be good business, accounting and actuarial practices, as applicable. Section 4.7 No Other Broker. Other than Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co., the fees and expenses of which will be paid by Seller, no broker, finder or similar intermediary has acted for or on behalf of Seller or the Company or the Subsidiaries, or is entitled to any broker's, finder's or similar fee or other commission from Seller, the 18 19 Company or the Subsidiaries in connection with this Agreement or the transactions contemplated hereby. Section 4.8 Legal Proceedings. Except (i) as set forth on Schedule 4.8, (ii) for the Supervision Order, (iii) for the Reorganization Proceeding, including any rehabilitation proceeding involving GALIC, and (iv) for Actions arising in the ordinary course of business consistent with past practice from or related to the obligations of any Life Insurance Subsidiary, RGA or any RGA Subsidiary under any insurance policy or similar instrument written, assumed or reinsured by such Life Insurance Subsidiary, RGA or RGA Subsidiary, neither the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA nor any RGA Subsidiary is a party to any, and there are no pending or, to the knowledge of Seller, threatened, Actions against or otherwise affecting the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary, or any of their respective properties or assets, or challenging the validity or propriety of the transactions contemplated by this Agreement or the Ancillary Agreements which, if adversely determined, would have, individually or in the aggregate, a Material Adverse Effect, and there is no injunction, order, judgment, decree or regulatory restriction imposed upon the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary, or any of their respective properties, or assets which has had or would have, individually or in the aggregate, a Material Adverse Effect. Section 4.9 Undisclosed Liabilities. Except for (i) those liabilities or items set forth on Schedule 4.9 or any other Schedule to this Agreement, (ii) those liabilities that may result from any alleged breaches of any contracts constituting Stable Value Business, (iii) those liabilities that may result from any alleged default in connection with the 8.525% Capital Securities issued by a wholly owned trust of the Company or the 7.625% Surplus Notes issued by GALIC, (iv) those liabilities that are reflected or reserved against on the Interim Financial Statements as of June 30, 1999, and (vi) liabilities incurred in the ordinary course of business consistent with past practice since June 30, 1999, no liabilities have been incurred by the Company or the Subsidiaries other than those that would not, individually or in the aggregate, have a Material Adverse Effect. Section 4.10 Compliance with Applicable Law; Insurance Operations. (a) Except as set forth on Schedule 4.10, each of the Company and the Subsidiaries holds in full force and effect all licenses, franchises, permits and authorizations, other than Environmental Permits (which are addressed solely in Section 4.21) ("Permits"), necessary for the lawful ownership and use of their respective properties and assets and the conduct of their respective businesses under and pursuant to Applicable Laws relating to the Company and the Subsidiaries, and there has been no violation of any Permit nor has the Seller, the Company or any Subsidiary received written notice asserting any such violation, 19 20 except for such failures to be in full force and effect and for such violations, if any, which would not, individually or in the aggregate, have a Material Adverse Effect. (b) Except as set forth on Schedule 4.10, each of the Company and the Subsidiaries is in compliance with each Applicable Law relating to it or any of its assets, properties or operations, except where noncompliance with any such Applicable Law would not, individually or in the aggregate, have a Material Adverse Effect. (c) Each Subsidiary which is either a broker-dealer or an investment advisor is duly registered as such with all applicable Governmental Authorities, including without limitation the SEC and state securities or "blue sky" authorities (with such registrations being in full force and effect), and is in good standing, except for failures to be so registered or in good standing as would not, individually or in the aggregate, have a Material Adverse Effect. (d) ERISA Compliance. Except as set forth on Schedule 4.10 with respect to any actions of the Company or any of its Subsidiaries or Affiliates, or agents, directors, officers or employees of such entities, where such entities or parties have acted or could be deemed to have acted as an ERISA fiduciary (within the meaning of Section 3(21)(A) of ERISA) or have performed services as a result of which any such person was a party in interest (within the meaning of Section 3(14) of ERISA) or a disqualified person (within the meaning of Section 4975(e)(2) of the Code), such actions have been in compliance with ERISA's and the Code's fiduciary and prohibited transaction requirements (to the extent applicable), except for such violations as would not, individually or in the aggregate, have a Material Adverse Effect. Section 4.11 Absence of Certain Changes. Except (i) as set forth on Schedule 4.11, (ii) with respect only to clause (x) and subclauses (a), (k) and (l) (insofar as (l) applies to (a) and (k)) of clause (y), as a result of the Supervision Order and the Reorganization Proceeding, including any rehabilitation proceeding involving GALIC, (iii) with respect only to clause (x) and subclauses (a), (k) and (l)(insofar as (l) applies to (a) and (k)) of clause (y) as a result of any alleged breaches of Stable Value Business, (iv) with respect only to clauses (x) and subclauses (a), (k) and (l) (insofar as (l) applies to (a) and (k)) of clause (y) as a result of any alleged default in connection with the 8.525% Capital Securities issued by a wholly owned trust of the Company or the 7.625% Surplus Notes issued by GALIC, (v) with respect only to clauses (x) and subclauses (a), (k) and (l) (insofar as (l) applies to (a) and (k)) of clause (y),as a result of any downgrade of the financial strength and claims paying ability ratings of the Company, any Subsidiary, RGA, any RGA Subsidiary, Conning or any Conning Subsidiary, (vi) as reflected on the Company GAAP Financial Statements, the 20 21 Interim Financial Statements, the RGA GAAP Financial Statements, the RGA Interim Financial Statements, the Conning GAAP Financial Statements or the Conning Interim Financial Statements, or (vii) as otherwise contemplated or permitted by this Agreement or the Ancillary Agreements, since December 31, 1998, the Company and its Subsidiaries, taken as a whole, (x) have conducted their business in the ordinary course of business consistent with past practice and (y) have not: (a) made any change in its fiscal year, or, if a Life Insurance Subsidiary, made any change in underwriting, reinsurance, marketing, claim processing and payment, reserving, financial or accounting practices or policies of any Life Insurance Subsidiary, except as required by law, GAAP or statutory accounting practices of its state of domicile or as would not, individually or in the aggregate, have a Material Adverse Effect; (b) issued, sold, pledged, encumbered or disposed of, any of its capital stock, notes, bonds or other securities, or any option, warrant or other right to acquire the same; (c) split, combined or reclassified any shares of capital stock, or redeemed, repurchased or otherwise acquired any of its capital stock or declared, made or paid any dividends or distributions (whether in cash, securities or other property) to the holders of its capital stock; (d) merged with, entered into a consolidation with or acquired an interest of 5% or more in any Person or acquired, in one transaction of a series of transactions, a substantial portion of the assets or business of any Person or any division or line of business thereof, or otherwise acquired any assets or securities (other than fixed maturity securities, cash and short-term investments) with an aggregate value in excess of $10,000,000 other than in the ordinary course of the Company's business consistent with past practice; (e) made any capital expenditure or commitment for any capital expenditure including, without limitation, capital lease obligations, in excess of $5,000,000 in the aggregate; (f) incurred indebtedness for money borrowed in excess of $10,000,000 in the aggregate; (g) made any loan to, guaranteed any indebtedness for money borrowed of, or otherwise incurred such indebtedness on behalf of, any Person in excess of $5,000,000 in the aggregate other than investments made in the ordinary course of business; (h) except as required by law, rule or regulation or any collective bargaining agreement or involving increases 21 22 in the ordinary course of business consistent with past practice, (i) granted any increase, or announced any increase, in the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable to any of its senior officers who in the preceding 12 months received compensation in excess of $200,000, or any director including, without limitation, any increase or change pursuant to any Seller Plan, or (ii) established or promised to establish any plan or benefit program or increased or promised to increase any benefits under any Seller Plan (including any severance arrangement or employee retention arrangement); (i) amended or restated its charter or Bylaws (or other organizational documents); (j) paid, discharged, settled or satisfied any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) other than (i) for an amount of $5,000,000 or less, (ii) an insurance claim arising in the ordinary course of business consistent with past practice, (iii) ordinary course repayment of indebtedness or payment of contractual obligations when due and (iv) payments made to holders of contracts relating to the Stable Value Business; (k) renewed, amended, modified or terminated any of its contracts, agreements or arrangements, or otherwise waived, released, cancelled or assigned any of its rights, claims or benefits thereunder except renewals, amendments, modifications and terminations as would not, individually or in the aggregate, have a Material Adverse Effect; or (l) agreed, whether in writing or otherwise, to take any of the actions specified in this Section 4.11, except as expressly contemplated by this Agreement. Section 4.12 Technology and Intellectual Property. (a) Except as set forth on Schedule 4.12, the Company or a Subsidiary owns or possesses, or has rights or licenses to use, the patents, trademarks (including common law trademarks), service marks, copyrights (including any registrations or applications relating to any of the foregoing), trade names, technology, trade secrets, inventions, know-how and computer programs which are reasonably necessary to carry on its business as currently conducted (each, an "Intellectual Property Right"), and neither the Company nor any Subsidiary has engaged in any infringement of the intellectual property rights of others with respect to any such Intellectual Property Right that, if such infringement is determined to be unlawful, is reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. Except as set forth on Schedule 4.12, the execution and delivery of this Agreement and the Ancillary Agreements by Seller, and the consummation of the transactions contemplated 22 23 hereby and thereby, will neither cause the Company or any Subsidiary to be in violation or default under any licenses, sublicenses or other agreements to which the Company or any Subsidiary is a party and pursuant to which the Company or any Subsidiary is authorized to use any Intellectual Property Right, nor entitle any other party to any such license, sublicense or agreement to terminate such license, sublicense or agreement, except where any such violation, default, termination or modification would not, individually or in the aggregate, have a Material Adverse Effect. Schedule 4.12 sets forth a complete and correct list, as of the date hereof, of the trademarks that are material to the business as currently conducted by the Company or any Subsidiary and all registrations and applications for registration of any Intellectual Property Rights. Except as set forth on Schedule 4.12, Seller has no knowledge of any infringement by third parties of the Intellectual Property Rights. (b) Except as set forth on Exhibit 4.12, the use of any Intellectual Property Right in the business as currently conducted by the Company or any Subsidiary does not breach, violate or infringe any intellectual property rights of any third party or (except for the payment of computer software or other licensing fees) does not require any payment for the use of any patent, trade name, service mark, trade secret, trademark, copyright or other intellectual property right or technology owned by any third party except where any such breaches, violations, infringements, or payments, would not, individually or in the aggregate, have a Material Adverse Effect. Section 4.13 Employee Benefit Plans; ERISA. (a) Each "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) or other employment or compensation plan, agreement or arrangement (whether or not subject to ERISA) under which any Company Employees, or any current or former director or independent contractor of the Company, any Subsidiary, Conning, any Conning Subsidiary, RGA or any RGA Subsidiary, in their capacity as such, shall have any benefit entitlements as of the Closing Date or in which any of such Persons otherwise participates (collectively, the "Seller Plans") for which Seller will have no liability or responsibility after the Closing Date is listed on Schedule 4.13, other than any Seller Plan which does not have an aggregate lifetime present value liability in excess of $500,000. (b) Except as set forth on Schedule 4.13 each Seller Plan has been maintained and administered at all times in compliance with its terms and Applicable Law including, in the case of any Seller Plan intended to be qualified under Code Section 401(a), the provisions of Code Section 401(a), there is no audit, investigation or proceeding pending or threatened involving any Seller Plan before the IRS, Department of Labor or any other Governmental Authority, there has not occurred with respect to any Seller Plan (and no person or entity is 23 24 contractually bound to enter into) any transaction constituting a non-exempt "prohibited transaction" within the meaning of Section 4975 of the Code or Section 406 of ERISA, and a determination letter has been received from the IRS as to each Seller Plan that is intended to be qualified under Code Section 401(a), and neither Seller nor Company is aware of any circumstances likely to result in the revocation of any such determination letter except where any such non-compliance, prohibited transaction or failure to have a determination letter would not, individually or in the aggregate, have a Material Adverse Effect. (c) None of Seller, RGA or Conning nor any ERISA Affiliate thereof has incurred or expects to incur any liability under Title IV of ERISA (other than for payment of Pension Guaranty Corporation insurance premiums) or Section 412 of the Code which would have, individually or in the aggregate, a Material Adverse Effect. None of such entities has any obligation to contribute to, or any liability under, any multiemployer plan (as defined in ERISA Section 4001(a)(3)). Based on the most recent actuarial valuations, the accrued liabilities of the Seller Plans subject to Title IV of ERISA do not exceed such Seller Plans' assets. Section 4.14 Taxes. Except as set forth on Schedule 4.14: (a) Each of Seller, the Company (and any affiliated group of which the Company is a member) and the Subsidiaries has timely filed with the appropriate taxing authorities all Tax Returns required to be filed (taking into account all valid extensions) and all such Tax Returns are complete and accurate; (b) All Taxes shown in the Tax Returns referred to in Section 4.14(a) that are due and payable by the Company and the Subsidiaries before the date hereof have been timely paid; (c) There are no Encumbrances on any of the assets of the Company or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes (other than Taxes that are not due as of the date hereof); (d) The Company and the Subsidiaries have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party; (e) No federal, state, local or foreign audit or other administrative proceeding or court proceeding (each an "Audit") exists or has been initiated with regard to Taxes or Tax Returns of the Company or any Subsidiary, and neither the Company nor any Subsidiary has received any notice that 24 25 any such Audit is pending or threatened with respect to any Taxes due from or with respect to the Company or any Subsidiary or any Tax Return filed by or with respect to the Company or any Subsidiary; (f) Neither the Company nor any Subsidiary has requested an extension of time within which to file any Tax Return in respect of any taxable year which has subsequently not been filed and no outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Tax Returns has been given by or on behalf of the Company or any Subsidiary; (g) No power of attorney has been granted by or with respect to the Company or any Subsidiary with respect to any matter relating to Taxes; and (h) Any representation or warranty with respect to Taxes contained in this Section 4.14 shall be deemed to be accurate unless an inaccuracy contained therein would have, individually or in the aggregate, a Material Adverse Effect. Section 4.15 Contracts. (a) Schedule 4.15 sets forth a complete and accurate list, as of the date hereof, of (i) all contracts to which the Company or any Subsidiary is a party (excluding policies of insurance or reinsurance in the ordinary course of business) or by which any of their respective assets are bound which contain obligations of the Company or any Subsidiary in excess of $5,000,000, and (ii) all contracts and agreements that limit or purport to limit the Company, GALIC, Conning or RGA to compete in any line of business or with any Person or in any geographic area (collectively, the "Contracts"). Neither Seller, the Company, nor any Subsidiary has received written notice of a cancellation of or an intent to cancel any Contract whose cancellation would have, individually or in the aggregate, a Material Adverse Effect. (b) Except as set forth on Schedule 4.15, assuming the due authorization, execution and delivery by the other parties thereto, each Contract is legal, valid, binding, enforceable against the other parties thereto and in full force and effect, and will not cease to be in full force and effect on terms identical to those currently in effect as a result of the consummation of the transactions contemplated by this Agreement or the Ancillary Agreements, nor will the consummation of the transactions contemplated by this Agreement constitute a breach or default under such Contract, except such failures to be enforceable or to be in full force and effect or such breaches or defaults as would not have, individually or in the aggregate, a Material Adverse Effect. (c) Except as set forth on Schedule 4.15, assuming the due authorization, execution and delivery by the other parties thereto, neither the Company nor any Subsidiary is in breach of, 25 26 or default under, any Contract and, to the knowledge of Seller, no other party to any Contract is in beach thereof or default thereunder, except for such breaches or defaults as would not have, individually or in the aggregate, a Material Adverse Effect. Section 4.16 Portfolio Investments. Seller has previously delivered to Buyer true and complete lists of all assets held in the investment portfolios of the Life Insurance Subsidiaries as of August 11, 1999. Section 4.17 Liabilities and Reserves. (a) The consolidated balance sheets as of December 31, 1998 and June 30, 1999 included as part of the Company GAAP Financial Statements and the Interim Financial Statements, respectively, reflect adequate provision for all obligations and liabilities of the Company and the Subsidiaries, Conning and the Conning Subsidiaries and RGA and the RGA Subsidiaries, at such date for which provision is required under the accounting principles specified in Section 4.6 pursuant to which such balance sheets were prepared, and except to the extent specifically disclosed, reflected or reserved against in such balance sheets and the notes thereto, none of the Company and the Subsidiaries, Conning and the Conning Subsidiaries and RGA and the RGA Subsidiaries, has any material obligations or liabilities of any nature (whether accrued, absolute, contingent or otherwise, and whether or not due, or arising out of transactions entered into, or any state of facts existing, prior to such date) required under such accounting principles to be set forth on a consolidated balance sheet of any of the Company and the Subsidiaries or in the notes thereto, except (x) liabilities incurred since December 31, 1998, in the ordinary course of business consistent with past practice and (y) as disclosed in Schedule 4.17(a). (b) Each reserve and other liability amount in respect of the insurance business, including without limitation reserve and other liability amounts in respect of insurance policies, annuity contracts or guaranteed investment or reinsurance, coinsurance or other similar insurance contracts, whether direct or assumed by reinsurance, established or reflected in the respective Annual Statements for the year ended December 31, 1998, and the Quarterly Statements for the period ended June 30, 1999 of each of the Life Insurance Subsidiaries was determined in accordance with generally accepted actuarial standards consistently applied, was based on actuarial assumptions that were in accordance with or stronger than those called for in relevant policy and contract provisions, is fairly stated in accordance with sound actuarial principles and is in compliance with the requirements of the insurance laws, rules and regulations of their respective jurisdictions of domicile as well as those of any other applicable jurisdictions (collectively, "Applicable Insurance Laws"). Except as set forth on Schedule 4.17(b), such reserves and liability amounts with respect to each Life Insurance Subsidiary were adequate to cover the total amount 26 27 of all matured and unmatured liabilities and obligations of such Life Insurance Subsidiary under all its outstanding insurance policies, funding agreements and annuity, guaranteed interest, reinsurance, coinsurance and other similar contracts as of December 31, 1998 or June 30, 1999, as appropriate. Such investment assumptions were reasonable as of December 31, 1998 or June 30, 1999, as appropriate. Each Life Insurance Subsidiary owns assets that qualify as admitted assets under Applicable Insurance Laws in an amount at least equal to the sum of all such reserves and liability amounts and its minimum statutory capital and surplus as required by Applicable Insurance Laws. (c) Except for regular periodic assessments in the ordinary course of business and except as set forth in Schedule 4.8, no claim or assessment is pending nor, to the knowledge of the Seller, threatened against any Life Insurance Subsidiary by any State insurance guaranty association in connection with such association's fund relating to insolvent insurers. Section 4.18 Title to Assets. Except as set forth in Schedule 4.18, and subject to the Supervision Order and the approval of the Reorganization Plan, the Company and the Subsidiaries have good and marketable title to, or valid and subsisting leasehold interests in, all real and personal property and other assets on their books and reflected on the Company's balance sheet at December 31, 1998 and June 30, 1999 included as part of the Company GAAP Financial Statements and the Interim Financial Statements, respectively, or acquired in the ordinary course of business consistent with past practice since December 31, 1998 or June 30, 1999, as appropriate, which would have been required to be reflected on such balance sheet if acquired on or prior to such date, other than assets which have been disposed of in the ordinary course of business and those assets the failure of which to have good title to, or valid and subsisting leasehold interests in, would not, individually or in the aggregate, have a Material Adverse Effect. None of such property and other assets is subject to any Encumbrance, except for Encumbrances set forth on Schedule 4.18 or reflected in the financial statements of the Company as of December 31, 1998. Except as set forth on Schedule 4.18 and as would not, individually or in the aggregate, have a Material Adverse Effect, the Company and the Subsidiaries have the right to quiet enjoyment of all property leased by any of them for the full term of each such lease or sublease or similar agreement (or any renewal option) relating thereto and such leased property is not subject to any failure to have the right to quiet enjoyment. Section 4.19 Transactions with Certain Persons. Except as set forth on Schedule 4.19, neither any officer, director or employee of Seller, the Company or any Subsidiary, nor any member of any such Person's immediate family, is now a party to any material transaction with the Company or any Subsidiary, including any contract or other binding arrangement (i) providing for the furnishing of material services by such 27 28 Person (except in such Person's capacity as an officer, director, employee or consultant), (ii) providing for the rental of material real or personal property from such Person, or (iii) otherwise requiring material payments (whether pursuant to indebtedness or otherwise) to such Person (other than for services as an officer, director, employee or consultant of Seller, the Company or any Subsidiary). Section 4.20 Reinsurance and Retrocessions. Schedule 4.20 sets forth a true and complete list of all reinsurance and retrocession treaties and agreements in force as of the date of this Agreement to which any Life Insurance Subsidiary is a ceding party, any terminated or expired treaty or agreement under which there remains any outstanding liability from one reinsurer in excess of $15,000,000 and any treaty or agreement with any Affiliate of the Company or any Life Insurance Subsidiary, the effective date of each such treaty or agreement, and the termination date of any treaty or agreement which has a definite termination date. Except as set forth on Schedule 4.20, (i) no Life Insurance Subsidiary is in default in any respect as to any provision of any reinsurance or retrocession treaty or agreement or has failed to meet the underwriting standards required for any business reinsurance thereunder and (ii) no reinsurer or retrocessionaire is in default to any Life Insurance Subsidiary pursuant to any reinsurance or retrocession treaty or agreement, except for defaults which would not, individually or in the aggregate, have a Material Adverse Effect. Section 4.21 Environmental Laws. (a) To the knowledge of Seller, except as set forth on Schedule 4.21 and as would not, individually or in the aggregate, have a Material Adverse Effect: (i) the Company and each Subsidiary have been and are in compliance with all applicable Environmental Laws, and have possessed, possess, have been, and are in compliance with all Environmental Permits required under such laws for the conduct of its business operations and ownership of its Owned Real Property, (ii) there are no past, present or future events (including, without limitation, the sale of any Owned Real Property), conditions or legal requirements that would prevent, or substantially increase the cost to the Company or any Subsidiary of complying with Environmental Laws or of their obtaining, renewing or complying with all Environmental Permits required under such laws for the conduct of its business and operations and ownership of its Owned Real Property or that would give rise to any liability arising under any Environmental Law, and (iii) there are no liabilities or obligations of the Company or any of its Subsidiaries of any kind whatsoever, whether accrued, contingent, absolute, direct or indirect, determined, determinable or otherwise, arising under or relating to any Environmental Law, (iv) there are and have been no conditions relating to the release or threatened release of Hazardous Materials at any property owned, operated or otherwise used by the Company or any Subsidiary now or in the past that would give rise to liability of the Company or any Subsidiary under any 28 29 Environmental Law and (v) no written notice, notification, demand, request for information, citation, summons, complaint, order, or notice of investigation has been received by the Company or any of its Subsidiaries from, and no action, claim, suit, proceeding or review is pending or threatened by, any Governmental Authority or Person against, the Company or any of its Subsidiaries, with respect to any Environmental Law. (b) Notwithstanding anything herein to the contrary, the representations and warranties contained in this Section 4.21 do not address any liability or obligation of the Company or any Subsidiary arising specifically from any obligation the Company or any Subsidiary may have to defend or indemnify an insured, pursuant to a contract of insurance or reinsurance, with respect to any claim relating to Hazardous Materials or under any Environmental Law. Section 4.22 Insurance Coverage. The Company has furnished to Buyer a true and correct list, as of the date hereof, of all policies of insurance maintained by the Company or any Subsidiary relating to the assets, properties, business, operations, employees, officers or directors of the Company or any Subsidiary. The Company maintains insurance relating to such assets, properties, business, operations, employees, officers and directors which is reasonable for a company of its size engaged in the life and health insurance business. Section 4.23 Year 2000. Except as set forth on Schedule 4.23 and except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each hardware, software and firmware product (including embedded microcontrollers in computer equipment which are owned or licensed and used by the Company or any Subsidiary and which are involved in electronic data interchange and integration with third parties) owned or licensed and used by the Company or any of its Subsidiaries (including without limitation all software sold or licensed by NaviSys Incorporated and its subsidiaries) will, when required to do so, correctly differentiate between the years in different centuries and will accurately process date/time data (including, but not limited to, calculating, comparing, and sequencing) from, into, and between the twentieth and twenty-first centuries, including leap year calculations. Section 4.24 RGA and Conning. Each of RGA and Conning has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC since January 1, 1996 (collectively, the "SEC Documents"). Except as set forth on Schedule 4.24, each of the SEC Documents has been duly and timely filed, and when filed was in material compliance with the requirements (including accounting requirements) of any applicable federal securities law and the applicable rules and regulations of the SEC thereunder, and no event has occurred requiring the filing of any amendment of any of the SEC Documents which amendment has not been duly and timely filed. Each of such 29 30 SEC Documents was complete and correct in all material respects as of its date and, as of its date, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Complete and correct copies of such SEC Documents have been made available by the Company to the Buyer prior to the date of this Agreement or, in the case of those not yet due and filed, will be so made available promptly after filing. Section 4.25 State Takeover Statutes and Shareholder Rights Plans. Except for the provisions of Article III of RGA's Articles of Incorporation, Seller has caused to be taken all actions necessary such that no "fair price," "moratorium," "control share acquisition," "business combination" or other form of antitakeover statute, regulation or provision of the Articles of Incorporation of RGA or Conning is applicable to any of the transactions contemplated hereby or by the Ancillary Agreements, including without limitation Sections 351.407 and 351.459 of the Missouri Revised Statutes. Seller has caused to be taken all actions necessary such that, for all purposes under the Rights Agreement, neither Buyer nor any of its Affiliates shall be deemed an Acquiring Person (as defined in the Rights Agreement), the Distribution Date (as defined in the Rights Agreement) shall not be deemed to occur, and the Rights will not separate from the common stock of RGA, in each case as a result of Buyer's entering into this Agreement and the Ancillary Agreements or consummating the transactions contemplated hereby or thereby, and the Rights Agreement and the Rights are inapplicable to such transactions. There is no rights agreement, rights plan or other similar agreement, plan or arrangement with respect to Conning applicable to the transactions contemplated hereby or by the Ancillary Agreements. Section 4.26 Insurance Issued. Except as set forth on Schedule 4.26 or as disclosed to Buyer in a letter from Seller to Buyer dated August 26, 1999 and except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, with respect to all insurance issued by any Life Insurance Subsidiary: (i) All insurance policy and annuity contract benefits payable by any Life Insurance Subsidiary and, to the knowledge of the Seller, by any other Person that is a party to or bound by any reinsurance, coinsurance or other similar agreement with any Life Insurance Subsidiary, have been paid in accordance with the terms of the insurance policies, annuity contracts and other contracts under which they arose, except for such benefits for which there is a reasonable basis to contest payment. (ii) Except as set forth on Schedule 4.26, all advertising, promotional and sales materials and other 30 31 marketing practices used by any Life Insurance Subsidiary or any agent of any Life Insurance Subsidiary have complied and are currently in compliance with Applicable Laws. (iii) Each insurance agent, at the time such agent wrote, sold or produced business for any Life Insurance Subsidiary since January 1, 1994, was duly licensed as an insurance agent (for the type of business written, sold or produced by such insurance agent) in the particular jurisdiction in which such agent wrote, sold or produced such business. (iv) The Tax treatment under the Code of all insurance or annuity policies, plans or contracts; all financial products, employee benefit plans, individual retirement accounts or annuities; or any similar or related policy, contract, plan, or product, whether individual, group, or otherwise, if any, issued or sold by any Life Insurance Subsidiary is and at all times has been the same or not less favorable to the purchaser, policyholder or intended beneficiaries thereof as the Tax treatment under the Code for which such contracts qualified or purported to qualify at the time of their issuance or purchase, except for changes resulting from changes to the Code which do not apply to such issuance or purchase due to their effective date. For purposes of this Section 4.26, the provisions of the Code relating to the Tax treatment of such contracts shall include, but not be limited to, Sections 72, 79, 101, 104, 105, 106, 125, 130, 401, 402, 403, 404, 408, 412, 415, 419, 419A, 457, 501, 505, 817, 818, 7702 and 7702A. In addition, except as disclosed to Buyer in a letter from Seller to Buyer dated August 26, 1999, each annuity contract issued by any Life Insurance Subsidiary qualified as an annuity contract under Section 72 of the Code. Each life insurance policy issued by any Life Insurance Subsidiary qualified as a life insurance contract for federal income tax purposes when issued and any such policy which is a modified endowment contract under Section 7702A of the Code, (each, a "MEC") has been marketed as such at all relevant times or the policyholder otherwise has consented to such MEC status. Each of the employee benefit plans issued or sold by the Company qualifies under Section 401(a), 403(b) or 457, as applicable, of the Code. (v) The underwriting standards utilized and ratings applied by each Life Insurance Subsidiary with respect to insurance policies, annuity contracts or guaranteed investment contracts outstanding as of the date hereof have been provided to Buyer and, with respect to any such policy or contract reinsured in whole or in part, conform in all material respects to the standards and ratings required pursuant to the terms of the related reinsurance, coinsurance or other similar contracts and Seller has 31 32 provided Buyer with copies of all underwriting policies and procedures for each Life Insurance Subsidiary. (vi) No insurance agent or broker at the time such agent or broker wrote, sold or produced business for any Life Insurance Subsidiary, violated (or with notice or lapse of time or both would have violated) any term or provision of any law or order applicable to any aspect (including, but not limited to, the writing, sale or production) of the business of any Life Insurance Subsidiary. Section 4.27 Real Property. (a) Schedule 4.27 lists all Owned Real Property. (b) Schedule 4.27 lists all leases with respect to Leased Real Property requiring the payment of more than $1,000,000 per annum. (c) The Seller has, or has caused to be, delivered to the Buyer true and complete copies of all leases listed on Schedule 4.27. Each such lease is legal, valid, binding, enforceable and in full force and effect with respect to the Company or the Subsidiary, as applicable, and, to the knowledge of Seller, each such lease is legal, valid, binding, enforceable and in full force and effect with respect to the lessor thereof, except when the failure to be legal, valid, binding, enforceable and in full force and effect would not have a Material Adverse Effect. (d) To the knowledge of Seller, there are no condemnation proceedings or eminent domain proceedings of any kind pending or threatened against the Owned Real Property or Leased Real Property. (e) Except as set forth on Schedule 4.27, the rental set forth in each lease of the Leased Real Property is the actual rental being paid, and there are no separate agreements or understandings with respect to the same, except as would not, individually or in the aggregate, be a Material Adverse Effect. ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER Buyer hereby represents and warrants to Seller as follows: Section 5.1 Organization and Related Matters. Buyer is a mutual life insurance company duly organized, validly existing and in good standing under the laws of the State of New York. 32 33 Section 5.2 Authority; No Violation. (a) Buyer has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly approved by all requisite action on the part of Buyer, and no other proceedings on the part of Buyer are necessary to approve this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Buyer and (assuming the due authorization, execution and delivery of this Agreement by Seller) constitutes the valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms. (b) Neither the execution and delivery of this Agreement by Buyer, nor the consummation by Buyer of the transactions contemplated hereby to be performed by it, nor compliance by Buyer with any of the terms or provisions hereof, will (i) violate any provision of the Charter or Bylaws of Buyer, or (ii) assuming that the consents and approvals referred to in Section 5.3 are duly obtained, (A) violate in any material respect any Applicable Law with respect to Buyer, or any of its properties or assets or (B) violate, conflict with, result in a breach of any provision of, or constitute a default under any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which Buyer is a party, or by which Buyer or any of its properties or assets may be bound or affected, except for such violations, conflicts, breaches or defaults which would not, individually or in the aggregate, prevent or materially delay the performance by Buyer of any of its obligations hereunder. Section 5.3 Consents and Approvals. Except for (i) the approval of the Director required by the Supervision Order, (ii) any approvals or orders required in connection with the Reorganization Proceeding (iii) approvals or consents of Governmental Authorities under the insurance holding company laws of Missouri, California, New York, Illinois, and Texas, (iv) applicable filings under the HSR Act, (v) the matters set forth on Schedule 5.3, and (vi) such other filings, authorizations, consents or approvals the failure to make or obtain which would not, individually or in the aggregate, prevent or materially delay the performance by Buyer of any of its obligations pursuant to this Agreement, no consents or approvals of or filings or registrations with any Governmental Authority or any third party are necessary in connection with the execution and delivery by Buyer of this Agreement and the consummation by Buyer of the transactions contemplated hereby. Buyer is not aware of any consents specified in the preceding sentence which it believes it is not reasonably likely to obtain. Section 5.4 Legal Proceedings. Buyer is not a party to any, and there are no pending or, to Buyer's knowledge, threatened, Actions against or otherwise affecting Buyer or its 33 34 properties or assets or challenging the validity or propriety of the transactions contemplated by this Agreement which, if adversely determined, would, individually or in the aggregate, prevent or materially delay the performance by Buyer of any of its obligations pursuant to this Agreement, and there is no injunction, order, judgment, decree or regulatory restriction imposed upon Buyer or its properties or assets which would, individually or in the aggregate, prevent or materially delay the performance by Buyer of any of its obligations pursuant to this Agreement. Section 5.5 Investment Intent of Buyer. The Shares to be acquired under this Agreement will be acquired by Buyer for its own account and not for the purpose of a distribution. Buyer will refrain from transferring or otherwise disposing of any of the Shares acquired by it, or any interest therein, in such manner as to violate any registration provision of the Securities Act of 1933, as amended, or any applicable state securities law regulating the disposition thereof. Buyer agrees that the certificates representing the Shares may bear legends to the effect that the Shares have not been registered under the Securities Act of 1933, as amended, or such other state securities laws, and that no interest therein may be transferred or otherwise disposed of in violation of the provisions thereof. Section 5.6 No Other Broker. Other than Credit Suisse First Boston Corporation, the fees and expenses of which will be paid by Buyer, no broker, finder or similar intermediary has acted for or on behalf of Buyer or any Affiliate of Buyer, or is entitled to any broker's, finder's or similar fee or other commission from Buyer, or any Affiliate of Buyer, in connection with this Agreement or the transactions contemplated hereby. Section 5.7 Financing. Buyer has, and at the Closing will have, sufficient cash to consummate the transactions contemplated hereby and to pay all related fees and expenses. ARTICLE VI COVENANTS Section 6.1 Conduct of Business. Prior to the Closing Date or the termination of this Agreement pursuant to the terms hereof,(a) except the events described in clauses (ii), (iii) and (iv) of Section 4.11, or any order of the Director of the Department or from the Reorganization Proceeding, Seller shall cause each of the Company, the Subsidiaries, RGA, the RGA Subsidiaries, Conning and the Conning Subsidiaries to use commercially reasonable efforts to (i) preserve intact its present organization, business and franchise; (ii) maintain in effect all material licenses, approvals, qualifications, registrations and authorizations necessary to carry on its business as currently conducted; (iii) preserve material existing 34 35 relationships with its employees and agents, other distribution sources, customers, lenders, suppliers, regulators, rating agencies and others having material business relationships with it (referred to herein as "Contacts"); (iv) continue its advertising and promotional activities, pricing and purchasing policies, operations and business plan implementation consistent with past practice; (v) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of its assets, properties, business, operations, employees, officers or directors except as required by applicable law; (vi) in the case only of the Company and the Subsidiaries, not undertake any material new business initiatives; and (vii) cooperate with Buyer to present the change of ownership contemplated by this Agreement in a positive manner to its Contacts, including without limitation furnishing such introductions and facilitating such continuing access to such Contacts as Buyer may reasonably request; and (b) without the prior written consent of Buyer, which consent shall not be unreasonably withheld, Seller will not, and will not permit the Company or the Subsidiaries to, except as required pursuant to any order of the Director or the Department or issued pursuant to the Reorganization Proceeding, (i) take or omit to take any action that would be reasonably likely to cause any of the representations and warranties made by Seller in this Agreement to become untrue; (ii) take any action that would prevent or materially impair the ability of Seller to consummate the transactions contemplated by this Agreement, including without limitation actions that would be reasonably likely to prevent or materially impair the receipt of any consent, registration, approval, permit or authorization, that is necessary in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; or (iii) sell or otherwise transfer or dispose of the shares of the capital stock of RGA or Conning held by the Company. Section 6.2 Public Announcements. Buyer and Seller shall consult with each other and the Department before issuing, and provide each other the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement, and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by the Department, by Applicable Law or court process or by obligations pursuant to any listing agreement with any national securities exchange. Section 6.3 Expenses. Regardless of whether any or all of the transactions contemplated by this Agreement are consummated, and except as otherwise expressly provided herein, Buyer and Seller shall each bear their respective direct and indirect expenses incurred in connection with the negotiation and 35 36 preparation of this Agreement, the Ancillary Agreements and the consummation of the transactions contemplated hereby or thereby. Section 6.4 Access; Certain Communications. Between the date of this Agreement and the Closing Date, subject to Applicable Laws relating to the exchange of information and to any order of the Director of the Department or issued pursuant to the Reorganization Proceeding: (a) Seller shall (and shall cause the Company and each Subsidiary to) afford to Buyer and its authorized agents and representatives access, upon reasonable notice and during normal business hours, to all contracts and other documents and other information (except immaterial contracts, documents and information subject to confidentiality agreements) of or relating to the assets, liabilities, business, operations and other aspects of the business of the Company and the Subsidiaries and shall use commercially reasonable efforts to cause RGA, the RGA Subsidiaries, Conning and the Conning Subsidiaries to afford such access to Buyer and its authorized agents and representatives. Seller shall cause the Company Employees and the employees of any Subsidiary and each of the Company's and their respective attorneys, financial advisors, auditors, actuarial advisors and other representatives to provide reasonable assistance to Buyer in Buyer's investigation of matters relating to the purchase of the Shares; provided, however, that Buyer's investigation shall be conducted in a manner which does not materially interfere with the normal operations, customers and employee relations of the Company, its Subsidiaries, RGA, the RGA Subsidiaries, Conning or the Conning Subsidiaries. Without limiting any of the terms thereof, the terms of the Confidentiality Agreement shall govern Buyer's and its agents' and representatives' obligations with respect to all confidential information with respect to the Company, the Subsidiaries, RGA, the RGA Subsidiaries, Conning and the Conning Subsidiaries, which has been provided or made available to them at any time, including during the period between the date of this Agreement and the Closing Date; (b) except as required pursuant to any order of the Director of the Department or issued pursuant to the Reorganization Proceeding, Seller shall give prompt notice to Buyer of (i) any material communication received from or given to any Governmental Authority in connection with any of the transactions contemplated hereby, (ii) any notice or other communication from or on behalf of any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; and (iii) any actions, suits, claims or investigations commenced or to Seller's knowledge threatened against Seller, the Company and the Subsidiaries, and, if known, RGA, the RGA Subsidiaries, Conning and the Conning Subsidiaries, that, if pending on the date of this Agreement, would have been required to have been disclosed, or relate to the consummation of the transactions contemplated by this Agreement; provided, however, that the delivery of any 36 37 notice pursuant to this Section 6.4(b) shall not limit or otherwise affect the remedies available hereunder to Buyer; and (c) Seller shall, and shall cause any other Person receiving access thereto to, keep strictly confidential any and all non-public information it or they may receive from or concerning Buyer and its Affiliates, including, without limitation, any information received pursuant to Section 6.6. Section 6.5 Reorganization Plan. As soon as practicable after execution of this Agreement, Seller shall make reasonable efforts to cause the Department to commence a Reorganization Proceeding and to submit the Reorganization Plan incorporating the material terms of this Agreement. Section 6.6 Regulatory Matters; Third Party Consents. (a) Buyer and Seller shall cooperate with each other and (i) shall use their commercially reasonable efforts promptly to prepare and to file all necessary documentation, and to effect all applications, notices, petitions and filings, with each Governmental Authority which are necessary or advisable to consummate the transactions contemplated by this Agreement, and (ii) shall use their commercially reasonable efforts to obtain as promptly as practicable any permit, consent, approval, waiver or authorization of such Governmental Authority which is necessary or advisable to consummate the transactions contemplated by this Agreement. (b) Buyer and Seller shall cooperate with each other and (i) shall use their commercially reasonable efforts promptly to prepare and to file all necessary documentation, and to effect all applications, notices, petitions and filings, with each third party (other than a Governmental Authority) which are necessary or advisable to consummate the transactions contemplated by this Agreement, and (ii) shall use their commercially reasonable efforts to obtain as promptly as practicable any permit, consent, approval, waiver or authorization of such third party which is necessary or advisable to consummate the transactions contemplated by this Agreement. (c) Buyer and Seller shall have the right to review in advance, and shall consult with the other party on, in each case subject to Applicable Laws relating to the exchange of information, all the information relating to Seller, the Company and the Subsidiaries or Buyer, as the case may be, and any of their respective Affiliates, which appear in any filing made with, or written materials submitted to, any Governmental Authority or any other third party in connection with the transactions contemplated by this Agreement. The parties hereto agree that they will consult with each other with respect to the obtaining of any permit, consent, approval or authorization of a Governmental Authority or other third party necessary or advisable to consummate the transactions contemplated by this Agreement and each party shall keep the other apprised of the 37 38 status of obtaining any such permit, consent, approval or authorization. The party responsible for any such filing shall promptly deliver to the other party evidence of the filing of all applications, filings, registrations and notifications relating thereto, and any supplement, amendment or item of additional information in connection therewith. The party responsible for a filing shall also promptly deliver to the other party a copy of each notice, order, opinion and other item of correspondence received from or sent to any Governmental Authority by such filing party in respect of any such application. In exercising the foregoing rights and obligations, Buyer and Seller shall act reasonably and promptly. (d) Without limiting the generality of the foregoing, as promptly as practical and, in any event within 21 calendar days after the date hereof, Buyer shall make Form A filings, which shall include all required exhibits thereto, with the insurance departments of the States of Missouri, California, New York, Illinois and Texas with respect to the transactions contemplated hereby and, as promptly as practical, Buyer shall make all required foreign filings with respect to the transactions contemplated hereby. Buyer shall as promptly as practicable make any and all other filings and submissions of information with such insurance departments which are required or requested by such insurance departments in order to obtain the approvals required by such insurance departments to consummate the transactions contemplated hereby. If any such insurance department, including without limitation the insurance department of the States of Missouri, California, New York, Illinois and Texas, requires that a hearing be held in connection with any such approval, Buyer shall use its commercially reasonable efforts to arrange for such hearing to be held as promptly as practicable after the notice that such hearing is required has been received by Buyer. Seller agrees to furnish Buyer with such necessary information and reasonable assistance as Buyer may reasonably request in connection with its preparation of such Form A filings and other filings or submissions. Buyer shall keep Seller fully apprised of its actions with respect to all such filings, submissions and scheduled hearings and shall provide Seller with copies of such Form A filings and other filings or submissions (except to the extent that such information would be, or relates to information that would be, filed under a claim of confidentiality). (e) Buyer and Seller shall, upon request, furnish each other with all information concerning themselves, their subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary in connection with any statement, filing, notice or application made by or on behalf of Buyer, the Company or any of their respective Affiliates to any Governmental Authority in connection with the transactions contemplated by this Agreement or the Ancillary Agreements (except to the extent that such information would be, or relates 38 39 to information that would be, filed under a claim of confidentiality). (f) Buyer and Seller shall promptly advise each other upon receiving any communication from any Governmental Authority whose consent or approval is required for consummation of the transactions contemplated by this Agreement which causes such party to believe that there is a reasonable likelihood that any requisite regulatory approval will not be obtained or that the receipt of any such approval will be materially delayed. Section 6.7 Further Assurances. (a) Each of the parties hereto shall execute such documents and other papers and perform such further acts as may be reasonably required to carry out the provisions hereof and the transactions contemplated hereby. Each such party shall, on or prior to the Closing Date, use its commercially reasonable efforts to fulfill or obtain the fulfillment of the conditions precedent to the consummation of the transactions contemplated hereby, including the execution and delivery of any documents, certificates, instruments or other papers that are reasonably required for the consummation of the transactions contemplated hereby. (b) Seller shall, and shall cause the Subsidiaries, and shall use reasonable best efforts to cause RGA and the RGA Subsidiaries, Conning and the Conning Subsidiaries, and their respective officers, directors, employees and agents (including attorneys, auditors and financial advisors) to provide such information (including, without limitation, financial information) and assistance as Buyer shall reasonably request in connection with the preparation of Buyer's Registration Statement on Form S-1 and policyholder information booklet and with respect to the Buyer's planned demutualization and initial public offering, including, without limitation, participating in due diligence discussions and meetings during normal business hours with Buyer's underwriters and providing such financial statements and audit reports thereon and consents with respect thereto as are reasonably necessary. Section 6.8 Notification of Certain Matters. (a) Each party shall give prompt notice to the other party of (i) the occurrence, or failure to occur, of any event or the existence of any condition that has caused or could reasonably be expected to cause any of its representations or warranties contained in this Agreement to be breached at any time after the date of this Agreement, up to and including the Closing Date (except to the extent such representations and warranties are given as of a particular date or period and relate solely to such particular date or period) and (ii) any failure on its part to comply with or satisfy, in any material respect, any covenant, condition or agreement to be complied with or satisfied by it under this Agreement. 39 40 (b) Within twenty-eight days following the date of the execution of this Agreement and in any event no less than twenty-eight days prior to the Closing, Seller may provide to Buyer schedules permitted to be delivered in accordance with this Agreement on or prior to the date hereof which were not so delivered (such schedules being the "Supplemental Schedules"). Each of such Supplemental Schedules when delivered shall be certified to be a complete schedule being delivered in satisfaction of this covenant. Within fourteen days following the delivery of the last Supplemental Schedule to be delivered in accordance with this Section 6.8, Buyer may elect to terminate this Agreement by notice, as provided in Section 11.1 hereof, if any items disclosed in one or more of the Supplemental Schedules, either individually or in the aggregate, could reasonably be expected to constitute a Material Adverse Effect. Regardless of whether any such items individually or in the aggregate could reasonably be expected to constitute a Material Adverse Effect, if the Closing occurs, Seller shall indemnify Purchaser for any Losses arising from any item disclosed in such Supplemental Schedules in accordance with Article X hereof, as if such items were not disclosed and, for the purposes of such Article X hereof, such items do not constitute exceptions to the representations, warranties and covenants contained in this Agreement. Section 6.9 Maintenance of Records. Through the Closing Date, the Company shall maintain the Records in all material respects in the same manner and with the same care that the Records have been maintained prior to the execution of this Agreement. From and after the Closing Date, each of the parties shall permit the other party reasonable access to any applicable Records in its possession, and the right to duplicate such Records, to the extent that the requesting party has a reasonable business purpose for requesting such access or duplication. Notwithstanding any other provision of this Section 6.9, access to any Records may be denied to the requesting party if the other party is required under Applicable Law to deny such access. Section 6.10 Service Under Employee Plans.(a) Service by the Company Employees with the Company, Seller or any of their Affiliates prior to the Closing Date shall be recognized under each benefit plan, program or arrangement established, maintained or contributed to by Buyer, the Company or any of their Affiliates after the Closing Date for the benefit of any Company Employee to the same extent recognized for comparable purposes under the Seller Plans providing comparable benefits, except that in no event shall Buyer be required to take such service prior to the Closing Date into account in determining the accrual of benefits under any retirement benefit plan; provided, however, that this provision shall have no effect on any service credit that existed under any Seller Plan on the Closing Date. Neither Buyer nor any Affiliate shall amend, in any manner adverse to any participant whose employment is terminated within 12 months after the Closing Date so that such person is no longer employed by 40 41 Buyer or any entity that is then an Affiliate thereof, the provisions of any of the plans or programs listed in Schedule 6.10 hereto dealing specifically with additional benefits or rights of participants in the event of termination of employment on account of job elimination or divestiture. (b) Buyer shall, or shall cause the applicable entity to, (i) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Company Employees under any welfare benefit plan in which such Company Employees may be eligible to participate after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such Company Employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for the Company Employees immediately prior to the Closing Date, and (ii) provide each Company Employee with credit for any co-payments and deductibles paid prior to the Closing Date in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans that such Company Employees are eligible to participate in after the Closing Date. Section 6.11 Benefits Under Employee Plans. All benefits accrued and/or incurred by Company Employees and their qualified beneficiaries prior to the Closing Date under the Seller Plans shall be a liability of the Seller Plans to the extent payable under the terms of the Seller Plans. After the Closing Date, Buyer may amend the Seller Plans in accordance with their respective terms; provided, however, that Buyer will not take any action to use the assets of the trust under the General American Life Insurance Company and Affiliated Companies Executive Deferred Compensation Plans (the "Rabbi Trust") for any purposes other than those permitted under the Rabbi Trust agreement as in effect on the date hereof. Section 6.12 Company Confidentiality Agreements. Buyer and Seller acknowledge and agree that on or prior to the Closing, Seller will assign to Buyer its rights under the Company Confidentiality Agreements, except to the extent that any such assignment is directly or indirectly prohibited or impaired by the terms of any of such Company Confidentiality Agreements or applicable law, in which case the parties hereto shall cooperate to provide Buyer, to the fullest extent practicable, the benefits thereof. Section 6.13 No Solicitations. (a) From and after the date hereof, Seller shall not, and shall direct and use commercially reasonable efforts to cause the Subsidiaries, Conning, the Conning Subsidiaries, RGA and the RGA Subsidiaries, and each of their respective officers, directors, employees, agents, advisors or other representatives (each, a "Representative") not to, directly or indirectly, (i) solicit, initiate or knowingly encourage the submission of any Proposal (as defined below), (ii) participate in any discussions or 41 42 negotiations regarding, or furnish to any Person any non-public information with respect to, any Proposal or Alternative Transaction (as defined below), other than with Buyer; provided, however, that to the extent required by the fiduciary obligations of Seller's Board of Directors, as determined in good faith by Seller's Board of Directors following consultation with outside counsel, or at the direction of the Department or the Reorganization Proceeding, if Seller receives an unsolicited proposal with respect to a Control Transaction (as defined below), Seller may participate in such discussions or negotiations or furnish (pursuant to a confidentiality agreement in customary form) such information in response to such Proposal or, subject to Section 11.3, authorize, engage in or enter into any agreement with respect to such Control Transaction. Seller will advise Buyer of, and communicate to Buyer the terms of, any Proposal that Seller, the Company, any of the Subsidiaries or any of their respective Representatives, or, if known by the Company, RGA, any of the RGA Subsidiaries, Conning or any of the Conning Subsidiaries, may receive unless the terms of such Proposal prohibit such disclosure, or otherwise directed by the Director. (b) For purposes of this Agreement: (i) "Proposal" means any written proposal or offer from any Person relating to an Alternative Transaction; (ii) "Alternative Transaction" means any (A) direct or indirect acquisition or purchase of any equity securities of, or other equity interest in, the Company or any of the Subsidiaries that if consummated would result in any Person beneficially owning (or having the right to acquire) 10% or more of any class of equity securities of, or the equity interest in the Company or any of the Subsidiaries or which would require approval under any federal, state or local law, rule, regulation or order governing or relating to the current or contemplated operations of the Company or any of the Subsidiaries, (B) merger, consolidation, business combination, sale of a material portion of the assets (including, without limitation, by means of any reinsurance or renewal rights transaction), liquidation, dissolution or similar transaction involving the Company or any of the Subsidiaries or (C) other transaction the consummation of which would reasonably be expected to impede, interfere with, prevent or materially delay the transactions with Buyer contemplated by this Agreement or which would reasonably be expected to dilute the benefits of such transactions to Buyer; and (iii) "Control Transaction" means any transaction that involves a (A) merger or consolidation or similar business combination involving the Company or a significant Subsidiary of the Company, (B) sale of all or substantially all of the assets of the Company or (C) sale or issuance of the Shares or other equity securities of the Company to a Person which, following the completion of such sale or issuance, will beneficially own the Shares or other equity securities of the Company representing a majority of the voting power with respect to the election of the directors of the Company. 42 43 Section 6.14 Policy Credits and Dividends in Respect of Tax-Qualified Retirement Contracts. Subject to the applicable requirements of ERISA and the Code, Buyer agrees to cause the Life Insurance Subsidiaries or their successors to accept at any time after the Closing Date any distribution by Seller in respect of any Tax-Qualified Retirement Contract and to post a policy credit or dividend to such contract with respect to such distribution as soon as practicable. Buyer and Seller shall cooperate in all matters with respect to any such distribution to best assure the ongoing qualification of any related tax-qualified retirement plan. Section 6.15 Alternative Structure. In the event that the Closing fails to occur because Buyer has not made the determination referred to in Section 9.1(f)(ii), the termination date referred to in Section 11.1(a)(v) shall be October 26, 2000 and Buyer and Seller shall use their best efforts to negotiate and implement an alternative structure that will permit the Closing to occur as promptly as practicable; provided, however, that nothing contained in this Section 6.15 will require Buyer or Seller to agree to alter the Purchase Price or any of the other fundamental economic terms of the purchase of Shares pursuant to this Agreement. Section 6.16 Employment. For a period of one year after the Closing Date, Buyer shall maintain the number of employees employed by the Company, its Subsidiaries, RGA, the RGA Subsidiaries, Conning and the Conning Subsidiaries at no less than 90% of the aggregate number of such employees employed by such entities as of the Closing Date; provided, however, that when calculating such percentage the number of employees employed as of the date hereof may be adjusted to reflect businesses divested by the Company after the date hereof. No provision contained in this Section 6.16 shall be deemed to constitute an employment contract between Buyer and any individual, or a waiver of Buyer's right to discharge any employee at any time, with or without cause. Section 6.17 Headquarters; Local Activities. For the reasonably foreseeable future after the Closing, the corporate headquarters and principal executive offices of the Company, Conning and RGA shall be located in metropolitan St. Louis, Missouri. For the reasonably foreseeable future after the Closing, Buyer shall cause the Company, and the Company shall provide, charitable contributions and community support within the St. Louis, Missouri area substantially comparable to the historical levels of charitable contributions and community support provided by the Company prior to the Closing. Section 6.18 Dividends. Holders of participating policies of the Life Insurance Subsidiaries and GALIC in effect on the Closing Date shall continue to have the right to receive dividends as provided in the participating policies, if any. 43 44 Section 6.19 Investment Advisory Agreements. Seller agrees to use commercially reasonable efforts to obtain all required shareholder, board and customer consents as required in connection with any investment advisory agreements as a result of the transactions contemplated by this Agreement so as to assure that such agreements are not terminated. Section 6.20 Capital Contribution. In the event that Buyer and Seller implement the exchange program contemplated by Section 7.1(c)(i) hereof, following the Closing upon termination of the exchange contracts, Buyer will make a capital contribution of $120,000,000 to GALIC. Section 6.21 Change of Control Agreements. Buyer and, prior to the Closing Date, Seller shall use their respective commercially reasonable efforts to prevent to the greatest extent possible the occurrence of a "change of control" or similar triggering event under a Seller Plan or other contract or arrangement for the benefit of any Company Employee (or any non-employee director or independent contractor of Seller, the Company, any Subsidiary, RGA, any RGA Subsidiary, Conning or any Conning Subsidiary). ARTICLE VII INTERIM ARRANGEMENT Section 7.1 Interim Agreements. (a) Buyer will develop with Seller as soon as practicable a program of coinsurance support for the period from the date of this Agreement through the Closing Date for new and existing business to be issued by GALIC, and similar arrangements as may be required by COVA and RGA. (b) Buyer will develop with Seller as soon as practicable a program of policy conversion to support GALIC's in force business for the period from the date of this Agreement through the Closing Date. (c) (i) To address the funding agreement business, Buyer and Seller will as soon as practicable implement a stabilization program. Such program will consist of an exchange or other program agreed to by Buyer and Seller and approved by the Department. Under an exchange program Buyer will offer to each holder of a funding agreement contract an exchange contract in consideration for the transfer by GALIC to Buyer of assets as determined below with market value (at the business day prior to the date of transfer) equal to the market value of the liabilities under the funding agreement contracts at the business day prior to the date of transfer (determined using Buyer's credit rating) plus a risk premium of $120 million. The $120 million would be payable by Wire Transfer in three $40 million installments; at inception of the exchange, ninety days following 44 45 such inception and one-hundred eighty days following such inception. (ii) Under an exchange program, five business days prior to the date of asset transfer, Buyer will submit to a mutually agreed upon third party (to be selected from Merrill Lynch, Bear Stearns, Lehman Brothers or Salomon Smith Barney (the "third party") a schedule of fixed-income assets from the GALIC portfolio (the "105% Portfolio") having (in Buyer's reasonable opinion) a market value of 105% of the market value of the funding agreement contract liabilities being exchanged. On the business day prior to the transfer, the third party will determine the market value of each asset in the 105% Portfolio. Assets having a market value equal to 100% of the market value of the funding agreement contract liabilities will be selected by Buyer, in its sole discretion, from such 105% Portfolio and transferred to, and accepted by, Buyer as payment for its exchange of the funding agreement contract liabilities. For purposes of this provision, the term "market value of the funding agreement contract liabilities" shall mean the amount mutually agreed to by Buyer and GALIC on the business day prior to the date of transfer. In selecting the 105% Portfolio, Buyer's primary concern is liquidity, but it will also take into account the following: (a) GALIC's capital and surplus; (b) the tax effect on GALIC of the asset transfer; (c) the effect of the asset transfer upon the investment yield, asset quality and maturity structure of the assets remaining at GALIC after such transfer; and (d) the relationship between the book yield on the transferred portfolio and the interest crediting rate of the funding agreement contract liabilities. ARTICLE VIII TAX MATTERS Section 8.1 Indemnity. (a) Subject to the terms of Section 8.1(c) excluding payments to Seller pursuant to Section 8.2, Seller agrees to indemnify and hold harmless Buyer, the Company and each Subsidiary against the following Taxes (except to the extent of the reserve for Taxes (not including any deferred Tax amounts) on the June 30, 1999 Interim Financial Statement and except to the extent that any such Tax is attributable to an audit adjustment that results in an increase 45 46 in the taxable income of the Company or its Subsidiaries for any such period and a correlative decrease in such taxable income in a later taxable period beginning on or after the Closing Date, in which case the amount of the indemnity shall be reduced by the discounted present value of the resulting reasonably estimated future benefit), and, except as otherwise provided in Section 8.9, against any loss, damage, liability or expense, including reasonable fees for attorneys and other outside consultants, incurred in contesting or otherwise in connection with any such Taxes: (i) Taxes imposed on the Company or any Subsidiary with respect to taxable periods ending on or before the Closing Date; (ii) Taxes imposed on any member of any consolidated, combined or unitary group with which any of the Company and the Subsidiaries file or have filed a Tax Return on a consolidated, combined or unitary basis for a taxable period ending on or before the Closing date; and (iii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date, Taxes imposed on the Company or any Subsidiary which are allocable, pursuant to Section 8.1(b), to the portion of such Tax period ending on the Closing Date. (b) In the case of Taxes that are payable with respect to a taxable period that begins before the Closing Date and ends after the Closing Date the portion of any such Tax that is allocable to the portion of the period ending on the Closing Date shall be: (i) in the case of Taxes that are either (A) based upon or related to income or receipts, or (B) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible) (other than conveyances pursuant to this Agreement, as provided under Section 8.9), deemed equal to the amount which would be payable if the taxable period ended with the Closing Date; (ii) in the case of Taxes imposed on a periodic basis with respect to the assets of the Company or any Subsidiary, or otherwise measured by the level of any item, deemed to be the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is the number of calendar days in the period ending on the Closing Date and the denominator of which is the number of calendar days in the entire period; and (iii) in the case of any premium tax, the amount which would be payable with respect to the direct premiums written during the period that ends on the Closing Date (taking into account the rates and credits allocable to the pre-Closing period that would be available if such period were treated as a separate year for premium tax purposes). 46 47 (c) Notwithstanding any provision in this Agreement to the contrary, Seller shall only be obligated to Buyer pursuant to the provisions of Section 8.1(a) for Taxes for which (i) Buyer, the Company or any Subsidiary, as the case may be, has received a notice of proposed adjustment in writing from a Taxing Authority (e.g., receipt of Form 5701 "Notice of Proposed Adjustments" for U.S. federal tax purposes), and (ii) Buyer has thereafter made a valid claim with respect thereto against the Escrow Account pursuant to the terms of the Escrow Agreement on or prior to the third anniversary of the Closing Date. (d) Buyer hereby agrees to indemnify and hold harmless Seller for all Taxes and associated expenses not allocated to Seller pursuant to the provisions of this Section 8.1(a). (e) Neither Buyer, the Company, nor any Subsidiaries shall take or allow to be taken any action the effect of which would be to accelerate the making of any claim, the commencement or completion of any audit or other inquiry by a Taxing Authority or the payment of (or increase in the amount of) any Tax liability for which Seller has an obligation to indemnify Buyer pursuant to the terms of Section 8.1. If Buyer, the Company, any Subsidiary, or any employee or agent of any of them takes or causes to be taken any such action, the indemnity provided in Section 8.1 hereof shall be void to the extent of any associated payment or increase in Tax liability. Seller shall not take or permit to be taken any action the effect of which would be to delay the making of any claim, the commencement or completion of any audit or other inquiry by a Taxing Authority or the payment of (or increase in the amount of) the payment or increase the amount of any Tax liability for which Seller has an obligation to indemnify Buyer pursuant to the terms of Section 8.1. (f) Seller's obligations pursuant to this Section 8.1 shall be satisfied solely with payments made by the Escrow Agent from the Escrow Account, and Buyer shall have no other recourse against Seller with respect to any such obligations. Section 8.2 Tax Allocation Agreement Payments. After the Closing Date, in accordance with the Tax Allocation Agreements and past intercompany accounting practices of the Company and the Subsidiaries, the Company and the Subsidiaries shall make further payments of Tax to the Seller or an appropriate Taxing Authority to the extent that their share of current Taxes attributable to taxable periods or portions thereof ending on or before the Closing Date exceeds their previously paid share of estimated Taxes; provided, however, that no payment shall be due for any period covered on the June 30, 1999 Interim Financial Statement, except to the extent that provision for such Tax has been made therein; and, provided, further, that no such payment shall include any amount of Tax attributable directly or indirectly to the sale of the Shares pursuant to this Agreement except as set forth in Section 8.6. Any payment under this Section 8.2 which is to be made to the Seller shall be due not 47 48 earlier than five (5) Business Days before the due date of the corresponding payment to the appropriate Taxing Authority. Except as otherwise provided in this Section 8.2, this Agreement terminates, as of the Closing Date, the Tax Allocation Agreements and any and all other similar agreements with respect to Taxes between or among Seller and Company and the Subsidiaries. Section 8.3 Returns and Payments. (a) Seller shall prepare and file or otherwise furnish in proper form to the appropriate Taxing Authority (or cause to be prepared and filed or so furnished) in a timely manner all (i) consolidated, combined and unitary Tax Returns (each a "Consolidated Return") that include Seller and (ii) Tax Returns relating to the Company and the Subsidiaries that are attributable to periods ending on or before the Closing Date (and Buyer shall do the same with respect to any non-Consolidated Return for the Company or the Subsidiaries attributable to periods ending after the Closing Date). Tax Returns of the Company and the Subsidiaries not yet filed for any taxable period that begins before the Closing Date shall be prepared in a manner consistent with past practices employed with respect to the Company and the Subsidiaries (except to the extent counsel for Seller or the Company renders a legal opinion that it is less likely than not that such practices would be sustained by the courts if challenged or determines that a Tax Return cannot be so prepared and filed without being subject to penalties). With respect to any non-Consolidated Return required to be filed by Buyer or Seller with respect to the Company and the Subsidiaries and as to which an amount of Tax is allocable to the other party under Section 8.1(b), the filing party shall provide the other party and its authorized representatives with a copy of such completed Tax Return and a statement certifying the amount of Tax shown on such Tax Return that is allocable to such other party pursuant to Section 8.1(b), together with appropriate supporting information and schedules at least forty-five (45) days prior to the due date (including any extension thereof) for the filing of such Tax Return, and such other party and its authorized representatives shall have the right to review and comment on such Tax Return and statement prior to the filing of such Tax Return. (b) After the Closing Date, Seller shall pay when due and payable all Taxes with respect to the Company and the Subsidiaries that are unpaid as of the Closing Date and are allocable to Seller pursuant to Sections 8.1(a) and 8.1(b) (either directly to the appropriate Taxing Authority or as appropriate to Buyer, the Company or any Subsidiary as the case may be). (c) Buyer shall or shall cause the Company or the Subsidiaries to pay all Taxes that are allocable to Buyer pursuant to Section 8.1(d)(either directly to the appropriate Taxing Authority or to Seller). Section 8.4 Refunds. Any Tax refund (including any interest with respect thereto) relating to the Company or any 48 49 Subsidiary for Taxes paid for any taxable period or portion thereof ending on or prior to the Closing Date shall be the property of Seller, and if received by Buyer or the Company or any Subsidiary shall be paid over promptly to Seller. Section 8.5 Contests. (a) After the Closing, Buyer shall promptly notify Seller in writing of any written notice of a proposed assessment, audit or claim with respect to any inquiry, assessment, contest, proceeding or litigation (a "Contest") of Buyer or Seller or of any of the Company and the Subsidiaries which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article VIII. (b) For all Contests for which the Seller alone has an indemnification obligation under Section 8.1, Seller shall control all such Contests in connection therewith. Prior to the Closing Date, Seller shall control all Contests relating to the Company and the Subsidiaries. After the Closing Date, in the case of a Contest that relates to a non-Consolidated Return (or any item relating thereto or reported thereon) for a taxable period ending on or before, or that includes, the Closing Date, Seller shall have the right at its expense to participate in and control the conduct of such Contest, and for all taxable periods thereafter, Buyer shall control such Contests. If Seller does not assume the defense of any such Contest for a taxable period ending on or before the Closing Date, Buyer may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such Contest after giving 30 days' prior written notice to Seller setting forth the terms and conditions of settlement. In the event of a Contest covered by the second sentence of this paragraph, that involves issues relating to a potential adjustment for which Seller has liability that are required to be dealt with in a proceeding that also involves separate issues relating to a potential adjustment for which Buyer would be liable, Buyer shall have the right, at its expense, to control the Contest but only with respect to the latter issues. (c) Buyer and Seller agree to cooperate, and Buyer agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or compromise of any claim in any Contest. Section 8.6 Section 338(h)(10) Election. (a) At Buyer's written request, which shall be given to Seller not later than 60 days before the last date an election under Section 338(h)(10) of the Code ("Election") with respect to the purchase of the Shares hereunder would be permitted to be filed, Buyer and Seller shall (i) cooperate in the preparation for the Election and (ii) unless Buyer thereafter shall notify Seller in writing prior to the date that the Election would be required to be filed that such Election shall not be made, jointly file such Election with the appropriate Taxing Authority on a timely basis and comply with the rules and regulations applicable to such Election. In the event an Election is made hereunder, unless 49 50 directed otherwise by Buyer, Seller and Buyer shall, when possible, omit or elect out of any such Election under applicable state or local law. (b) For purposes of making such Election and determining the Tax Election Amount under Section 8.6(c), Buyer shall determine the value of the tangible and intangible assets of the affected entities and shall timely provide Seller with an allocation of Buyer's "adjusted grossed-up basis" in the Shares (within the meaning of the Treasury Regulations under Section 338 of the Code) to such assets (the "Allocation"). The Allocation shall be binding upon Buyer and Seller for purposes of allocating the "deemed selling price" (within the meaning of the Treasury Regulations) among the assets of the affected entities; provided, however, that if Seller believes that all or a portion of the Allocation is materially incorrect, an independent accounting firm of national reputation (the "Independent Accounting Firm") shall be selected by Seller's and Buyer's accounting firms, subject to the approval of both the Seller and Buyer, to determine whether the Allocation is materially incorrect and the determination of such Independent Accounting Firm shall be final. If the Independent Accounting Firm determines that the Allocation is not materially incorrect, Seller and Buyer shall be bound by the Allocation. If the Independent Accounting Firm determines that the Allocation (or any portion thereof) is materially incorrect, Seller and Buyer shall be bound by the Allocation as adjusted by such Independent Accounting Firm. (c) If Buyer decides to make the Election, Buyer shall pay to Seller as additional Purchase Price an amount (the "Tax Election Amount") net of tax at an assumed rate of 40%, equal to the excess of (i) the amount of federal, state and local income and franchise Taxes due as a result of the deemed sale of the assets of the affected entities pursuant to the Election, taking into account any available federal, state or local losses, credits and loss or credit carryovers, and any available election out of, omission of an election under, or unavailability of an election under Section 338(h)(10) (or any analogous provision) for state or local tax purposes, and disregarding any additional amount of Purchase Price that may be payable by Buyer under this subsection (the "Actual Section 338(h)(10) Tax Liability"), over (ii) the amount of federal, state and local income and franchise taxes that would have been incurred by Seller solely as a result of a transaction in which all the Shares were sold without making an election under Section 338(h)(10) of the Code (the "Hypothetical Stock Sale Tax Liability"). Notwithstanding any other provision of this Agreement, Buyer shall not be entitled to an indemnity for any Tax that is imposed with respect to a Tax period ending on or before, or that includes, the Closing Date and that relates to the adjustment by a Taxing Authority of any federal, state or local losses, credits and loss or credit carryovers that have been taken into account in computing the Actual Section 338(h)(10) Tax Liability.) 50 51 (d) The Tax Election Amount shall be determined by Seller and its accounting firm with the full cooperation of Buyer and its accounting firm; provided, however, that the Tax Election Amount shall be subject to the right of review by Buyer and Buyer's accountants. Seller shall provide to Buyer the calculation of the Tax Election Amount no later than the twenty-fifth day following the effective date of Buyer's initial request. In the event Buyer or Buyer's accountants disagree with such calculation, Buyer shall give Seller written notice thereof within 15 days of the date Seller furnishes such calculation. Buyer shall pay to Seller the portion of the Tax Election Amount that Buyer does not dispute (the "Undisputed Amount") at least three Business Days prior to the due date of Seller's Return for the Tax period that includes the Closing Date. If Seller and Buyer are unable to settle or compromise such dispute within 15 Business Days after Buyer's notice, the Independent Accounting Firm shall determine the Tax Election Amount and such determination shall be final. In the event it is determined that Buyer owes Seller any portion of the disputed amount, Buyer shall bear the portion of the costs of the Independent Accounting Firm determined by multiplying such costs by a fraction, the numerator of which is the additional amount that the Independent Accounting Firm determines Buyer owes Seller and the denominator of which is the disputed amount, and Buyer shall pay to Seller such additional amount plus interest thereon at the "overpayment rate" as defined in Section 6621(a) of the Code from the due date of Seller's Return to the date of payment. Seller shall bear all costs of the Independent Accounting Firm which are not paid by Buyer pursuant to the immediately preceding sentence. Section 8.7 Time of Payment. Except as provided in Section 8.2 hereof, payment of any amounts due under this Article VIII in respect of Taxes shall be made (i) at least three Business Days before the due date of the applicable Tax Return required to be filed by either Buyer or Seller, as the case may be, that shows Taxes due for which the other party is responsible under Sections 8.1(a) and 8.1(b), or (ii) within three Business Days following an agreement between Seller and Buyer that an indemnity amount is payable, an assessment of a Tax by a Taxing Authority, or a "determination" having been made as such term is defined in Section 1313(a) of the Code. If liability under this Article VIII is in respect of costs or expenses other than Taxes, payment of any amounts due under this Article VIII shall be made within five Business Days after the date when the relevant entity has been notified that such entity has a liability for a determinable amount under this Article VIII and is provided with calculations or other materials supporting such liability. Section 8.8 Cooperation and Exchange of Information. Upon the terms set forth in Section 6.4 of this Agreement, Seller and Buyer will provide each other with such cooperation and information as either of them reasonably may request of the other in filing any Tax Return, amended Tax Return or claim for refund, determining a liability for Taxes or a right to a refund of 51 52 Taxes, participating in or conducting any Contest in respect of Taxes or making representations to or furnishing information to parties subsequently desiring to purchase any of the Company or the Subsidiaries or any part of the business from Buyer. Such cooperation and information shall include providing copies of relevant Tax Returns or portions thereof, together with accompanying schedules, related work papers and documents relating to rulings or other determinations by Taxing Authorities. Seller shall make its employees available on a basis mutually convenient to both parties to provide explanations of any documents or information provided hereunder as is reasonably practicable. Each of Seller and Buyer shall retain all Tax Returns, schedules and work papers, records and other documents in its possession relating to Tax matters of the Company and the Subsidiaries for each taxable period first ending after the Closing Date and for all prior taxable periods until the later of (i) the expiration of the statute of limitations of the taxable periods to which such Tax Returns, schedules and work papers, records and other documents relate, without regard to extensions except to the extent notified in writing of such extensions for the respective Tax periods, or (ii) three years following the due date (without extension) for such Tax Returns, provided, however, that the Seller may satisfy its obligations hereunder by delivering all such Tax Returns, schedules and work papers, records and other documents to the Buyer. Any information obtained under this Section 8.8 shall be kept confidential in accordance with Section 6.4 except as may be otherwise necessary in connection with the filing of Tax Returns or claims for refund or in conducting a Contest. Section 8.9 Conveyance Taxes. Buyer shall be liable for and shall hold Seller harmless against any real property transfer or gains, sales, use, transfer, value added, stock transfer, and stamp taxes, any transfer, recording, registration, and other fees, and any similar Taxes which become payable in connection with the transactions contemplated by this Agreement, and shall file such applications and documents as shall permit any such Tax to be assessed and paid on or prior to the Closing Date in accordance with any available pre-sale filing procedure. Buyer or Seller, as appropriate, shall execute and deliver all instruments and certificates necessary to enable the other to comply with any filing requirements relating to any such Taxes. Section 8.10 Miscellaneous. (a) Seller and Buyer agree to treat all payments made by either of them to or for the benefit of the other (including any payments to the Company or any Subsidiary) under this Article VIII, under other indemnity provisions of this Agreement as adjustments to the Purchase Price. (b) Notwithstanding any other provision in this Agreement to the contrary, Seller's obligation to indemnify Buyer, the Company, and its Subsidiaries with respect to Taxes 52 53 shall not extend to any Taxes attributable to the deduction for the risk premium payment made pursuant to Article VII hereof. (c) Seller will use its best efforts before the Closing Date to pursue the submission to the Internal Revenue Service as disclosed to Buyer in a letter from Seller to Buyer dated August 26, 1999. (d) The representations and warranties contained in Sections 4.14 and 4.26(a)(iv) shall terminate as of the Closing Date. ARTICLE IX CONDITIONS TO CLOSING Section 9.1 Conditions to Buyer's Obligations. In addition to the conditions set forth in Section 9.3, the obligations of Buyer to effect the Closing shall be subject to the following conditions, any one or more of which may be waived in writing by Buyer: (a) The representations and warranties of Seller set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except that any such representation and warranty that is given as of a particular date or period and relates solely to such particular date or period shall be true and correct only as of such date or period); provided, however, that with respect to any representation or warranty or portion thereof that is qualified by Material Adverse Effect, materiality or similar qualifier, such representation or warranty or portion thereof shall be true and correct in all respects; (b) Seller shall have performed and complied with in all material respects all agreements, covenants, obligations and conditions required by this Agreement to be performed or complied with by Seller on or prior to the Closing Date; (c) Seller shall have caused to be delivered to Buyer a certificate executed by a duly authorized officer of Seller certifying that the conditions set forth in this Section 9.1 have all been satisfied; (d) The Company shall not have commenced a voluntary case or proceeding under any bankruptcy law and, if an involuntary case shall have been commenced against the Company under any bankruptcy law, such case shall have been dismissed within 60 days after its commencement; 53 54 (e) The transactions contemplated by the proxy statement of RGA dated July 23, 1999 shall have been consummated in all material respects on the terms set forth in such proxy statement, including, without limitation, the reclassification of RGA's Non-Voting Common Stock into Common Stock at the exchange rate set forth in such proxy statement; (f) Any approvals or orders required in connection with the Reorganization Proceeding in order to permit the consummation of the transactions contemplated by this Agreement shall have been obtained, and (i) such approvals or orders shall have become final and nonappealable, or (ii) the period for appealing any such approvals or orders shall have passed, one or more appeals of such approvals or orders shall have been timely taken and not withdrawn, any such approvals or orders shall not have been stayed or reversed prior to the Closing, and Buyer shall have determined, in its sole discretion, exercised in good faith, that any such appeals are unlikely to invalidate Buyer's title to the Shares; and (g) GALIC shall not be subject to a then pending rehabilitation proceeding under Section 375.1165 of the Missouri Insurance Code. Section 9.2 Conditions to Seller's Obligations. In addition to the conditions set forth in Section 9.3, the obligations of Seller to effect the Closing shall be subject to the following conditions, any one or more of which may be waived in writing by Seller: (a) The representations and warranties of Buyer set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except that any such representation and warranty that is given as of a particular date or period and relates solely to such particular date or period shall be true and correct only as of such date or period); provided, however, that with respect to any representation or warranty or portion thereof that is qualified by Material Adverse Effect, materiality or similar qualifier, such representation or warranty or portion thereof shall be true and correct in all respects; (b) Buyer shall have performed and complied with in all material respects all agreements, covenants, obligations and conditions required by this Agreement to be performed or complied with by Buyer on or prior to the Closing Date; (c) Buyer shall have caused to be delivered to Seller a certificate executed by a duly authorized officer of Buyer 54 55 certifying that the conditions set forth in this Section 9.2 have all been satisfied; and (d) Any approvals or orders required in connection with the Reorganization Proceeding in order to permit the transactions contemplated by this Agreement shall have been obtained, and such approvals or orders shall not have been stayed or reversed prior to the Closing. Section 9.3 Mutual Conditions. The obligations of each of Buyer and Seller to effect the Closing shall be subject to the following conditions, any one or more of which may be waived in writing, as to itself, by either party: (a) No temporary restraining order, preliminary or permanent injunction or other order issued by a court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement shall be in effect; (b) All approvals of Governmental Authorities required to consummate the transactions contemplated hereby shall have been obtained and shall remain in full force and effect and all statutory waiting periods in respect thereof shall have expired; (c) In respect of the notifications of Buyer and Seller pursuant to the HSR Act, the applicable waiting period and any extensions thereof shall have expired or been terminated; (d) Buyer, Seller and Escrow Agent shall have duly executed and delivered the Escrow Agreement; (e) The Reorganization Plan as approved in the Reorganization Proceeding shall contain substantially the terms specified in Exhibit A and such other terms as are reasonably acceptable to Buyer and Seller. ARTICLE X SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS; INDEMNIFICATION Section 10.1 Survival. (a) The representations and warranties of the parties set forth in this Agreement shall terminate on the date that is two years after the Closing Date. Notice with respect to any claim in respect of any inaccuracy in or breach of any representation or warranty shall be in writing and shall be given to the party against which such claim is asserted on or before the date on which such representation or warranty terminates. 55 56 (b) All covenants and agreements made by the parties to this Agreement which contemplate performance following the Closing Date shall survive the Closing Date. All other covenants and agreements shall not survive the Closing Date and shall terminate as of the Closing; provided, however, that if any such covenant or agreement is breached on or prior to the Closing Date, the non-breaching party shall retain all rights and remedies with respect to such breach following the Closing Date. Section 10.2 Obligation of Seller to Indemnify. Subject to the limitations set forth in Sections 10.1, 10.5, 10.6 and 10.7, Seller shall indemnify, reimburse, defend and hold harmless Buyer and its directors, officers, employees, Affiliates, and their respective successors and assigns from and against any Loss incurred by any of them based upon, arising out of or otherwise in respect of (i) any inaccuracy in or any breach of any representation or warranty of Seller without taking into account, in determining whether any such inaccuracy or breach exists or has occurred, any qualifier in any representation or warranty or portion thereof as to Material Adverse Effect, materiality or similar qualifier;(ii) the nonfulfillment on the part of Seller of any unwaived covenant or agreement set forth in this Agreement; (iii) any direct or derivative Action brought or threatened within three years after the Closing Date by any Person of any kind or nature whatsoever and based on any legal theory whatsoever (a) (other than non-derivative claims of Seller) seeking relief as a result of Buyer's acquisition of the Shares, (b) resulting from alleged breaches occurring on or after July 15, 1999 of contracts relating to the Stable Value Business or (c) arising out of the financial distress of GALIC relating to the Stable Value Business (the "Indemnified Litigation"); (iv) any and all indemnification claims by officers, directors or employees of Seller, the Company, GALIC, any Subsidiary, RGA, any RGA Subsidiary, Conning or any Conning Subsidiary or payments made by the Company, any Subsidiary, RGA, any RGA Subsidiary, Conning or any Conning Subsidiary with respect to the items set forth in clause (iii) above, including without limitation, any indemnification of any employee, officer or director (other than a director of RGA or Conning who is not, and has never been, an officer or employee of Seller, the Company, GALIC, any subsidiary, RGA, any RGA Subsidiary, Conning or any Conning Subsidiary) of any such Persons; (v) all liabilities relating to any Seller Plan not listed in Schedule 4.13 (other than a Seller Plan that does not have an aggregate lifetime present value liability in excess of $500,000); and (vi) all liabilities relating to any additional or accelerated compensation, benefits or other rights under a Seller Plan or other contract or arrangement for the benefit of any Company Employee (or any non-employee director or independent contractor of the Company, any Subsidiary, RGA, any RGA Subsidiary, Conning or any Conning Subsidiary) resulting from the transactions contemplated by this Agreement being considered to constitute a "change in control" or similar triggering event. 56 57 Section 10.3 Obligation of Buyer to Indemnify. Subject to the limitations set forth in Sections 10.1, 10.5 and 10.7, Buyer shall indemnify, defend and hold harmless Seller and its directors, officers, employees, Affiliates, and their respective successors and assigns from and against any Loss incurred by any of them based upon, arising out of or otherwise in respect of (i) any inaccuracy in or breach of any representation or warranty of Buyer (after taking into account the exceptions to such representations and warranties which are set forth on the Schedules related to such representations and warranties), and (ii) the nonfulfillment on the part of Buyer of any unwaived covenant or agreement set forth in this Agreement which survives the Closing Date in accordance with Section 10.1. Section 10.4 Notice and Opportunity to Defend Against Third Party Claims. (a) Promptly after receipt from any third party by either party hereto (the "Indemnitee") of a notice of any demand, claim or circumstance that, immediately or with the lapse of time, would give rise to a claim or the commencement (or threatened commencement) of any action, proceeding or investigation (an "Asserted Liability") that may result in a Loss for which indemnification may be sought hereunder, the Indemnitee shall give written notice thereof (the "Claims Notice") to the party obligated to provide indemnification pursuant to Section 10.2 or 10.3 (the "Indemnifying Party"); provided, however, that a failure to give such notice shall not prejudice the Indemnitee's right to indemnification hereunder except to the extent that the Indemnifying Party is actually prejudiced thereby. The Claims Notice shall describe the Asserted Liability in reasonable detail, and shall indicate the amount (estimated, if necessary) of the Loss that has been or may be suffered by the Indemnitee. (b) The Indemnifying Party may elect to compromise or defend, at its own expense and by its own counsel, any Asserted Liability. If the Indemnifying Party elects to compromise or defend such Asserted Liability, it shall, within 20 Business Days following its receipt of the Claims Notice (or sooner, if the nature of the Asserted Liability so requires) notify the Indemnitee of its intent to do so, and the Indemnitee shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Asserted Liability. If the Indemnifying Party elects not to compromise or defend the Asserted Liability, fails to notify the Indemnitee of its election as herein provided or contests its obligation to provide indemnification under this Agreement, the Indemnitee may pay, compromise or defend such Asserted Liability. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnitee may settle or compromise any Asserted Liability without the consent of the other party; provided, however, that such consent to settlement or compromise shall not be unreasonably withheld. In any event, the Indemnitee and the Indemnifying Party may participate, at their own expense, in the defense of such Asserted Liability. If the Indemnifying Party chooses to defend 57 58 any Asserted Liability, the Indemnitee shall make available to the Indemnifying Party any books, records or other documents within its control that are necessary or appropriate for such defense. Section 10.5 Net Indemnity. The amount of any Loss from and against which either party is liable to indemnify, reimburse, defend and hold harmless the other party or any other Person pursuant to Section 10.2 or Section 10.3 shall be reduced by any insurance or other recoveries or any Tax benefit that such Indemnitee actually realizes as a result of or in connection with such Loss and increased by any Taxes such Indemnitee actually realizes in respect of indemnification for such Loss. Section 10.6 Tax Indemnification. Notwithstanding any provision of this Article X or any other provision of this Agreement, any issue or matter relating to Taxes (including all representations and warranties contained in Section 4.14 and 4.26(iv)) shall be governed solely by Article VIII. Section 10.7 Limits on Indemnification. (a) No party shall have any right to seek indemnification under this Agreement (i) as to any individual item or series of related items of Loss, to the extent such Loss is less than $25,000, (ii) with respect to Losses contemplated by Section 10.2(i) which would otherwise be indemnifiable hereunder incurred by such party (including Losses incurred by all other Indemnitees affiliated with or related to such party) until such Losses exceed $15 million in the aggregate, after insurance or other recoveries and on an after-tax basis, as provided in Section 10.5, and such party (including such affiliated or related Persons) shall only be entitled to be indemnified for Losses in excess of such aggregate amount, (iii) for punitive, special or consequential damages (other than in connection with Indemnified Litigation or litigation not disclosed to Buyer in breach of Section 4.8), or (iv) in respect of Losses to the extent such Losses result from or arise out of actions taken by such party or an Affiliate, employee, representative or agent thereof after the Closing not contemplated by this Agreement and not required by Applicable Law. After the Closing, the remedies provided by this Article X shall be the sole and exclusive remedy for the parties to this Agreement with respect to any dispute arising from, or related to, this Agreement, except in the case of fraud and except that specific performance shall continue to be available. (b) Notwithstanding any provision of this Article X, the liability of Seller under this Article X shall be limited to the Purchase Price paid to the Escrow Agent pursuant to the terms of this Agreement and Buyer agrees that its sole recourse shall be limited to the funds paid by Seller to the Escrow Agent. 58 59 ARTICLE XI TERMINATION Section 11.1 Termination. (a) This Agreement may be terminated on or prior to the Closing Date only as follows: (i) by mutual written consent of Buyer and Seller; (ii) by either Buyer or Seller if a condition to its obligation to perform becomes incapable of fulfillment, provided, however, that the right to terminate this Agreement pursuant to this Section 11.1(a)(ii) shall not be available to any party if its condition to perform became incapable of fulfillment due to its failure to fulfill any obligation under this Agreement; (iii) by Buyer if Seller (A) breaches or fails in any material respect to perform or comply with any of its material covenants or agreements contained herein, or (B) breaches any representation or warranty that is qualified as to Material Adverse Effect, or breaches any other representation or warranty which breach would have a Material Adverse Effect, and such breach is not cured to the reasonable satisfaction of Buyer within 30 Business Days after Buyer has provided written notice thereof to Seller; (iv) by Seller if Buyer (A) breaches or fails in any material respect to perform or comply with any of its material covenants or agreements contained herein, or (B) breaches any representation or warranty in any material respect and such breach is not cured to the reasonable satisfaction of Seller within 30 Business Days after Seller has provided written notice thereof to Buyer; (v) subject to Section 6.15, by either Buyer or Seller upon written notice to the other if the Closing Date shall not have occurred by August 26, 2000; provided, however, that the right to terminate this Agreement pursuant to this clause (v) shall not be available to any party whose failure to fulfill any of its obligations under this Agreement resulted in the Closing not occurring by such date; (vi) Subject to Section 11.3, by Seller, upon five days' prior notice to Buyer, if, as a result of a Proposal with respect to a Control Transaction by a party other than Buyer or any of its affiliates, (A) the Board of Directors of Seller determines in good faith following consultation with outside counsel and financial advisors that acceptance of such Proposal is necessary for the Board of Directors to act consistent with its fiduciary duties under applicable law or (B) the Director of the Department directs that Seller terminate this Agreement; 59 60 (vii) by Buyer if GALIC or any material Life Insurance Subsidiary is placed in delinquency proceedings or reorganization proceedings unless agreed to by Buyer; provided, however, that Buyer shall not have the right to terminate this Agreement under this clause (vii) as a result of a rehabilitation proceeding with respect to GALIC which is instituted in order to effectuate the transactions contemplated by this Agreement and such proceeding is completed within 21 days or such longer period determined by Buyer in its sole discretion as will not result in a material diminution of the value of GALIC; (viii) by Buyer if an order approving the Reorganization Proceeding or this Agreement shall have been appealed and stayed and such stay shall not have been lifted within 15 days after it was issued; and (ix) by Buyer if, after the date hereof, there shall have occurred a change that fundamentally impairs in a manner that cannot be remedied within a reasonable period of time the core business operations of the Company and its Subsidiaries, taken as a whole and is not attributable to (1) general conditions applicable to the economy of the United States or elsewhere, including changes in interest rates and in the stock or other financial markets, (2) conditions generally affecting the life insurance, life reinsurance or securities industries or (3) conditions or effects resulting from or relating to the announcement or the existence or terms of this Agreement or the consummation of the transactions contemplated hereby. (b) The termination of this Agreement shall be effectuated by the delivery of a written notice of such termination from the party terminating this Agreement to the other party. Section 11.2 Obligations upon Termination. In the event that this Agreement shall be terminated pursuant to Section 11.1, all obligations of the parties hereto under this Agreement shall terminate and there shall be no liability of any party hereto to any other party except (i) as set forth in Section 6.2, Section 6.3, Section 6.4(c), Section 7.1(c) and Section 11.3 and (ii) that nothing herein will relieve any party from liability for any breach of this Agreement. Section 11.3 Termination Fee. Seller shall pay Buyer a fee of $50,000,000, which amount shall be payable by Wire Transfer, within one business day following any termination of this Agreement by Seller pursuant to Section 11.1(a)(vi). The Company acknowledges that the agreements contained in this Section 11.3 are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller fails to promptly pay the amount due 60 61 pursuant to this Section 11.3, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller for the full amount of the fee set forth in this Section 11.3, Seller shall pay to Buyer its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the rate of 12% per annum from the date such fee was required to be paid. No termination of this Agreement by Seller pursuant to Section 11.1(a)(vi) shall be effective until receipt by Buyer of the amounts contemplated by the first sentence of this Section 11.3. ARTICLE XII MISCELLANEOUS Section 12.1 Amendments. This Agreement may not be amended, altered or modified except by written instrument executed by Buyer and Seller and approved by the Department. Section 12.2 Entire Agreement. (a) This Agreement, the Ancillary Agreements and the Confidentiality Agreement constitute the entire understanding of the parties hereto with respect to the transactions contemplated hereby, and supersede all prior agreements and understandings, written and oral, among the parties with respect to the subject matter hereof. (b) Buyer acknowledges that neither Seller or any of its Affiliates, nor any representative or advisor of any of them, has made any representation or warranty to Buyer except as specifically made in this Agreement. In particular, no such Person has made any representation or warranty to Buyer with respect to: (i) any information or materials distributed by Morgan Stanley & Co. Incorporated or Goldman, Sachs & Co. in connection with the proposed sale of the Company and the Subsidiaries, or (ii) any financial projection or forecast relating to the Company or the Subsidiaries. With respect to any such projection or forecast delivered by or on behalf of Seller to Buyer, Buyer acknowledges that: (A) there are uncertainties inherent in attempting to make such projections and forecasts, (B) it is familiar with such uncertainties, (C) it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such projections and forecasts so furnished to it and (D) it shall have no claim against any such Person with respect to any such projection or forecast. Section 12.3 Interpretation. When reference is made in this Agreement to any Section, Exhibit or Schedule, such reference is to a Section, Exhibit or Schedule of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to 61 62 be followed by the words "without limitation." The phrases "the date of this Agreement," "the date hereof" and terms of similar import, unless the context otherwise requires, shall be deemed to refer to the date set forth in the first paragraph of this Agreement. The words "hereof", "herein", "hereby" and other words of similar import refer to this Agreement as a whole unless otherwise indicated. The phrase "to the knowledge of Seller" or any similar phrase shall be deemed to refer to the actual knowledge of any of the executive officers of the Company, GALIC, RGA and Conning after due inquiry. Whenever the singular is used herein, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate. Section 12.4 Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, that provision shall be interpreted to be only so broad as is enforceable. Section 12.5 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given and delivered if they are: (a) delivered in person, (b) transmitted by facsimile (with confirmation), (c) delivered certified or registered mail (return receipt requested), or (d) delivered by an express courier (with confirmation) to a party at its address listed below (or at such other address as such party shall deliver to the other party by like notice): To Seller: General American Mutual Holding Company 700 Market Street St. Louis, MO 63101-1887 Facsimile: (314) 444-0510 Attention: Robert Banstetter With a concurrent copy to: LeBoeuf, Lamb, Greene & MacRae, L.L.P. 125 West 55th Street New York, NY 10019-4513 Facsimile: (212) 424-8500 Attention: Alexander M. Dye 62 63 To Buyer: Metropolitan Life Insurance Company One Madison Avenue New York, New York 10011-3690 Facsimile: (212) 679-4523 Attention: General Counsel With a concurrent copy to: Dewey Ballantine LLP 1301 Avenue of the Americas New York, NY 10019-6092 Facsimile: (212) 259-6333 Attention: Jonathan L. Freedman Jeff S. Liebmann Section 12.6 Binding Effect; Persons Benefitting; No Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and the respective successors and permitted assigns of the parties and such Persons. Nothing in this Agreement is intended or shall be construed to confer upon any entity or person other than the parties hereto and their respective successors and permitted assigns any right, remedy or claim under or by reason of this Agreement or any part hereof. This Agreement may not be assigned by either party hereto without the prior written consent of the other party, except that the Buyer may assign its rights hereunder to a wholly owned subsidiary with the prior written consent of the Department, which consent shall not be unreasonably withheld. Section 12.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart. Section 12.8 No Prejudice. This Agreement has been jointly prepared by the parties hereto and the terms hereof shall not be construed in favor of or against any party on account of its participation in such preparation. Section 12.9 Governing Law. THIS AGREEMENT, THE LEGAL RELATIONS BETWEEN THE PARTIES AND THE ADJUDICATION AND THE ENFORCEMENT THEREOF SHALL BE GOVERNED BY AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF MISSOURI. Section 12.10 Specific Performance. Each party hereto acknowledges and agrees that the other party hereto would be irreparably damaged in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each party hereto agrees that it shall be entitled to an injunction or 63 64 injunctions to prevent breaches of the provisions of this Agreement by the other party and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having subject matter jurisdiction, in addition to any other remedy to which either party may be entitled, at law or in equity. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first set forth above. GENERAL AMERICAN MUTUAL HOLDING COMPANY By: /s/ Richard A. Liddy ------------------------------- Name: Richard A. Liddy Title: Chairman, President and Chief Executive Officer METROPOLITAN LIFE INSURANCE COMPANY By: /s/ Robert H. Benmosche ----------------------- Name: Robert H. Benmosche Title: Chairman and Chief Executive Officer 64 EX-3 4 REGISTRATION RIGHTS AGREEMENT 1 Exhibit 3 REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of November 23, 1999, by and between REINSURANCE GROUP OF AMERICA, INCORPORATED, a Missouri corporation (the "Company"), and METROPOLITAN LIFE INSURANCE COMPANY, a New York mutual life insurance company ("Buyer"). 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 Buyer shall purchase from the Company shares of the Company's common stock, par value $0.01 per share (the "Company Common Stock"); and WHEREAS, the Company wishes 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 mutual covenants and agreements contained in this Agreement and the Stock Purchase 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. "Buyer" 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. "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. 2 "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. "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 any shares of Company Common Stock acquired by Buyer pursuant to the Stock Purchase Agreement or its permitted transferees; 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 -2- 3 sold or transferred 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. "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 of the Registrable Securities pursuant to the provisions of this Agreement, and (ii) sets forth a plan of distribution as determined by Buyer in accordance with Section 2.2. "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. "Termination Date" shall have the meaning set forth in Section 2.1. ARTICLE II DEMAND REGISTRATION Section 2.1. Request for Shelf Registration. Buyer may make one (1) written request to the Company (a "Demand Notice") that the Company register the offer and sale of all or any part of Buyer's Registrable Securities under the Securities Act (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, (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 Buyer has received an opinion of counsel to the Company who is reasonably acceptable to Buyer covering the matters referred to in this clause (B) and -3- 4 such opinion is reasonably satisfactory to Buyer) and (C) the second (2nd) anniversary of the date hereof (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 Buyer within no more than five (5) Business Days following the date of the Demand Notice. In the event that Buyer elects that the offering be an underwritten offering, Buyer 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 Company and Buyer shall enter into a customary underwriting agreement with such underwriter(s) (and Buyer 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 Buyer). 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 Buyer (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 Buyer to, and Buyer 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). -4- 5 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 Buyer 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 Buyer within ten (10) Business Days after Buyer's receipt of the Company's notice. Buyer may withdraw all or any part of 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, Buyer 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 Buyer) 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 Buyer 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 Buyer shall enter into a customary underwriting agreement with the underwriter(s) administering the offering. Buyer 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. -5- 6 ARTICLE IV RESTRICTIONS ON PUBLIC SALES Section 4.1. Restrictions on Public Sales. The Company agrees not to make any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for its equity securities, 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 reasonable time before filing a registration statement or prospectus or before filing any amendments or supplements thereto, the Company will furnish to Buyer and Buyer'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 Buyer 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 Buyer's intended method of disposition as set forth in the registration statement; (d) furnish to Buyer a sufficient number of copies of the registration statement, each amendment and supplement thereto (in each case including all exhibits), the corresponding -6- 7 prospectus (including each preliminary prospectus), and such other documents as Buyer may reasonably request to facilitate the disposition of Buyer's Registrable Securities; (e) register or qualify the Registrable Securities under securities or blue sky laws of jurisdictions in the United States as Buyer requests and do any and all other reasonable acts and things that may be necessary or advisable to enable Buyer 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 Buyer 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 Buyer or the underwriter(s), if any, reasonably request to expedite or facilitate the disposition of the Registrable Securities (and Buyer 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 Buyer); (j) make reasonably available for inspection by Buyer, any underwriter participating in any disposition pursuant to the registration statement, and any attorney, accountant or other agent of Buyer 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 Buyer 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 Buyer 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 Buyer or the managing underwriter reasonably requests, addressed to Buyer, the Company and the underwriter(s); -7- 8 (l) in connection with any underwritten offering, furnish, at the request of Buyer 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 Buyer and the underwriter(s) of the offering, addressed to Buyer 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 Buyer 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 Buyer 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 Buyer'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. Buyer Information. In the event of any registration by the Company, the Company may request from time to time that Buyer furnish to the Company information regarding Buyer and its affiliates and associates and the distribution of the securities subject to the registration, and Buyer shall furnish all such information reasonably requested by the Company. Section 5.3. Notice by Buyer. Whenever Buyer has requested that any Registrable Securities be registered pursuant to this Agreement, Buyer shall notify the Company, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event which to its knowledge relates to matters concerning Buyer 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. Buyer, if reasonably requested in writing by the managing underwriter(s) of an underwritten public offering of the Company's securities, agrees not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise transfer or dispose of any Registrable Securities owned by Buyer (other than (y) to a Subsidiary -8- 9 or Affiliate of Buyer, 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 Buyer 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 Buyer; 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); 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 Buyer'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 Buyer, or the underwriting discounts or commissions or transfer taxes applicable to the Registrable Securities, all of which shall be paid by Buyer. 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 Buyer, its officers, directors, trustees, partners, employees, advisors and agents, and each person who controls Buyer (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 -9- 10 (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 Buyer furnished in writing to the Company expressly for use therein and except to the extent that the Company advised Buyer not to dispose of any Registrable Securities pursuant to Section 2.3 hereof and Buyer 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 Buyer. In the event of any registration of Registrable Securities under the Securities Act pursuant to this Agreement, to the fullest extent permitted by law, Buyer 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 Buyer furnished in writing to the Company expressly for use therein and only in an amount not exceeding the net proceeds received by Buyer with respect to securities sold pursuant to such registration statement and except to the extent that the Company advised Buyer not to dispose of any Registrable Securities pursuant to Section 2.3 hereof and Buyer disregarded such advice. In connection with a firm or best efforts underwritten offering, to the extent customarily required by the managing underwriter, Buyer 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 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 -10- 11 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 Buyer 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 Buyer 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 Buyer 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, Buyer 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 Buyer exceeds the amount of any Damages that Buyer 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. -11- 12 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 Buyer 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 Buyer 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 Buyer, the Company will deliver to Buyer 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) the shares of Company Common Stock, (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 equity securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued 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, splits, reverse splits, combinations, recapitalizations and the like 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. -12- 13 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, 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 1370 Timberlake Manor Parkway Chesterfield, Missouri 63107-6039 Attention: Jack B. Lay, Executive Vice President and Chief Financial Officer Telecopy: 636-736-7839 with copies to: Reinsurance Group of America Incorporated c/o General American Life Insurance Company 700 Market Street St. Louis, Missouri 63101 Attention: James E. Sherman, Esq. Telecopy: 314-444-0510 Bryan Cave LLP One Metropolitan Square 211 North Broadway St. Louis, Missouri 63102-2750 Attention: R. Randall Wang, Esq. Telecopy: 314-259-2020 Notices to Buyer shall be addressed to: Metropolitan Life Insurance Company One Madison Avenue New York, New York 10010 Attention: William J. Wheeler, Treasurer Telecopy: 212-578-0266 -13- 14 with a copy to: Dewey Ballantine LLP 1301 Avenue of the Americas New York, New York 10019 Attention: Linda E. Ransom, Esq. Telecopy: 212-259-6333 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 Buyer may assign its rights hereunder to a Subsidiary or Affiliate of Buyer (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 Buyer 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 "Buyer" 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 Buyer 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 -14- 15 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 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 and that certain Registration Rights Agreement dated as of April 15, 1993 between the Company and General American Life Insurance Company. Except with the prior written consent of Buyer, 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, Buyer 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 Buyer or such recipient on a non-confidential basis from a third party that is not, to Buyer's or such recipient's knowledge, bound by any other confidentiality agreement or obligation with the Company or (iii) required to be disclosed by Buyer 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 Buyer requested in writing to the Company pursuant to this Agreement or the Stock Purchase Agreement and (ii) the fact that the Company requested that Buyer suspend further sales pursuant to Section 2.3. Notwithstanding anything to the contrary in this Agreement or the Stock Purchase Agreement, Buyer and the Company agree that the Company shall not furnish to Buyer 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 Buyer. -15- 16 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/ Jack B. Lay ---------------------- Name: Jack B. Lay Title: Executive Vice President and Chief Financial Officer METROPOLITAN LIFE INSURANCE COMPANY By: /s/ William J. Wheeler ---------------------------- Name: William J. Wheeler Title: Senior Vice-President & Treasurer -16- 17 EXHIBIT A TO REGISTRATION RIGHTS AGREEMENT COUNTERPART THIS INSTRUMENT forms part of the Registration Rights Agreement (the "Agreement"), dated as of November 23, 1999, by and between REINSURANCE GROUP OF AMERICA, INCORPORATED, a Missouri corporation (the "Company"), and METROPOLITAN LIFE INSURANCE COMPANY, a New York mutual life insurance company, 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 Buyer shall be binding upon and inure to the benefit of the undersigned and its successors and permitted assigns as if it were the original Buyer thereunder. IN WITNESS WHEREOF, the undersigned has executed this instrument this ____ day of ______________, ____. ------------------------ (Signature of Transferee) ---------------------- (Name in Block Letters) EX-4 5 STOCKHOLDERS AGREEMENT 1 Exhibit 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. 2 "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). -2- 3 "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 Chase Mellon Shareholder Services, L.L.C. (as successor to Boatman's 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 -3- 4 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 -4- 5 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 -5- 6 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. -6- 7 (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 -7- 8 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. -8- 9 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 1370 Timberlake Manor Parkway Chesterfield, Missouri 63107-6039 Attention: Jack B. Lay, Executive Vice President and Chief Financial Officer Telecopy: 636-736-7839 with copies to: Reinsurance Group of America, Incorporated c/o General American Life Insurance Company 700 Market Street St. Louis, Missouri 63101 Attention: James E. Sherman Telecopy: 314-444-0510 -9- 10 Bryan Cave LLP One Metropolitan Square 211 North Broadway St. Louis, Missouri 63102-2750 Attention: R. Randall Wang, Esq. Telecopy: 314-259-2020 Notices to Buyer or any of its Affiliates shall be addressed to: Metropolitan Life Insurance Company One Madison Avenue New York, New York 10010 Attention: William Wheeler, Treasurer Telecopy: 212-578-0266 with a copy to: Dewey Ballantine LLP 1301 Avenue of the Americas New York, New York 10019 Attention: Linda E. Ransom, Esq. Telecopy: 212-259-6333 Notices to GenAmerica, GALIC and EIM shall be addressed to: General American Life Insurance Company 700 Market Street St. Louis, Missouri 63101-1887 Attention: Robert Banstetter Telecopy: 314-444-0510 with a copy to: LeBoeuf, Lamb, Greene & MacRae, L.L.P. 125 West 55th Street New York, New York 10019-4513 Attention: Alexander M. Dye, Esq. Telecopy: 212-424-8500 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 -10- 11 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. -11- 12 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/ William J. Wheeler ------------------------------------------ Name: William J. Wheeler Title:Senior Vice-President and Treasurer GENAMERICA CORPORATION By: /s/ Robert J. Banstetter ------------------------------------------ Name: Robert J. Banstetter Title: Vice President, General Counsel and Secretary GENERAL AMERICAN LIFE INSURANCE COMPANY By: /s/ Robert J. Banstetter ------------------------------------------ Name: Robert J. Banstetter Title: Vice President, General Counsel and Secretary EQUITY INTERMEDIARY COMPANY By: /s/ Matthew P. McCauley ------------------------------------------ Name: Matthew P. McCauley Title: Vice President, General Counsel and Secretary REINSURANCE GROUP OF AMERICA, INCORPORATED By: /s/ Jack B. Lay ------------------------------------------ Name: Jack B. Lay Title:Executive Vice President and Chief Financial Officer -12- 13 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. -----END PRIVACY-ENHANCED MESSAGE-----