Exhibit 99.8
TRANSATLANTIC HOLDINGS, INC.
26,000,000 SHARES OF COMMON STOCK
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UNDERWRITING AGREEMENT
June 4, 2009
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representatives of the several Underwriters
named in Schedule I(a) hereto,
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
American International Group, Inc., a Delaware corporation, and its
wholly owned subsidiary, American Home Assurance Company, a New York
insurance corporation (the "SELLING STOCKHOLDERS"), each a stockholder of
Transatlantic Holdings, Inc., a Delaware corporation (the "COMPANY"),
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I(a) hereto (the "Underwriters") an
aggregate of 26,000,000 shares (the "FIRM SHARES") and, at the election of
the Underwriters, up to 3,900,000 additional shares (the "OPTIONAL SHARES")
of common stock, par value $1.00 per share, of the Company (the "STOCK").
The Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 3 hereof are herein collectively called the
"SHARES".
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants to and agrees with, the Underwriters that:
(a) The Company has, not earlier than three years prior to the
date hereof, filed with the Securities and Exchange Commission (the
"COMMISSION") an automatic shelf registration statement as defined under
Rule 405 under the Securities Act of 1933, as amended (the "SECURITIES
ACT", which term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder) on Form S-3 (No. 333-155811), including
the related prospectus, which registration statement, and any post
effective amendment thereto, became effective upon filing under Rule 462(e)
of the Securities Act, for the registration under the Securities Act of the
Shares. No stop order suspending the effectiveness of the registration
statement has been issued under the Securities Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of
the Company, are contemplated by the Commission, no notice of objection of
the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act has been received by the Company and any request on the part
of the Commission for additional information has been complied with.
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(b) The Company will file with the Commission pursuant to Rule
430B ("RULE 430B") and paragraph (b) of Rule 424 ("RULE 424(B)") under the
Securities Act a supplement or supplements to the prospectus included in
such registration statement relating to the Shares and the plan of
distribution thereof. Such registration statement, at any given time,
including the amendments thereto at such time, all exhibits thereto and any
schedules thereto at such time, and the documents otherwise deemed to be a
part thereof or included therein under the Securities Act, is hereinafter
called the "REGISTRATION STATEMENT"; such prospectus in the form in which
it appears in the Registration Statement is hereinafter called the "BASE
PROSPECTUS"; and such supplemented prospectus, in the form in which it
shall first be filed with the Commission pursuant to Rule 424(b) (including
the Base Prospectus as so supplemented), after the date and time that this
Agreement is executed and delivered, is hereinafter called the "FINAL
PROSPECTUS." The Registration Statement at the time it originally became
effective is hereinafter called the "ORIGINAL REGISTRATION STATEMENT." Any
information included in the Final Prospectus that was omitted from the
Original Registration Statement but that is deemed to be part of and
included in such Registration Statement pursuant to Rule 430B is referred
to as "RULE 430B INFORMATION". Each prospectus used in connection with the
offering of the Shares that omitted Rule 430B Information is hereinafter
called a "PRELIMINARY PROSPECTUS" and the Base Prospectus, as amended and
supplemented immediately prior to the Applicable Time (as defined in
Section 1(f) hereof), is hereinafter called the "PRICING PROSPECTUS." Any
reference herein to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACt", which
term, as used herein, includes the rules and regulations of the Commission
promulgated thereunder) or otherwise deemed under the Securities Act to be
a part of or included therein; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include any document filed under
the Exchange Act after the date of this Agreement, or the issue date of the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference or otherwise
deemed under the Securities Act to be a part of or included therein. Each
Preliminary Prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424(b) under the Securities Act,
complied when so filed in all material respects with the Securities Act and
each Preliminary Prospectus and the Final Prospectus delivered to the
Underwriters for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval ("▇▇▇▇▇") system, except
to the extent permitted by Regulation S-T.
(c) (A)(i) At the time of filing the Original Registration
Statement, (ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the Securities Act (whether
such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus),
and (iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) under the
Securities Act) made any offer relating
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to the Shares in reliance on the exemption of Rule 163 under the Securities
Act, the Company was a "well-known seasoned issuer" as defined in Rule 405
under the Securities Act; and (B) at the earliest time after the filing of
the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) under the
Securities Act) of the Shares, the Company was not an "ineligible issuer"
as defined in Rule 405 under the Securities Act.
(d) The Registration Statement conforms, and the Final Prospectus
and any further amendments or supplements to the Registration Statement and
the Final Prospectus will conform, in all material respects to the
requirements of the Securities Act and the rules and regulations of the
Commission thereunder.
(e) (i) The Registration Statement and any post-effective
amendment thereto do not and will not, as of the applicable effective date
as to each part of the Registration Statement and as of the applicable
filing date as to any amendment or supplement thereto, as of the date such
amendment becomes effective or such supplement is filed with the
Commission, as the case may be, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (ii) the Final
Prospectus, as of its date, and any amendment or supplement thereto, as of
the applicable filing date, does not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives expressly for use
therein.
(f) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Represented Free Writing Prospectus (as defined in
Rule 433 under the Securities Act and referred to herein as "ISSUER FREE
WRITING PROSPECTUS") has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Securities Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein.
(g) For the purposes of this Agreement, the "APPLICABLE TIME" is
6:00 am (Eastern time) on the date of this Agreement, and the "GENERAL
DISCLOSURE PACKAGE" means (i) the Pricing Prospectus as of the Applicable
Time, (ii) the information included in Schedule II(c) hereto and (iii) the
Issuer Free Writing Prospectuses, if any, listed on Schedule II(a) hereto
under the heading "General Disclosure Package Free Writing Prospectuses".
The General Disclosure Package, as of the Applicable Time, did not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided however,
that this representation and warranty shall not apply to statements or
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omissions made in reliance upon and in conformity with the information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
(h) Each Issuer Free Writing Prospectus listed on Schedule II(a)
hereto does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Final Prospectus; and each such
Issuer Free Writing Prospectus, as supplemented by and taken together with
the Pricing Prospectus as of the Applicable Time did not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made
in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives expressly for use
therein
(i) Each document incorporated or deemed to be incorporated by
reference in the Registration Statement, the General Disclosure Package and
the Final Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
Securities Act or the Exchange Act, as applicable, and, when read together
with the other information in the General Disclosure Package and the Final
Prospectus, at the Applicable Time and at each Time of Delivery (as
hereinafter defined) did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein; and no such documents were
filed with the Commission since the Commission's close of business on the
business day immediately prior to the date of this Agreement and prior to
the execution of this Agreement, except as set forth on Schedule II(b)
hereto; there are no contracts or documents which are required to be
described in the Registration Statement, the General Disclosure Package,
the Final Prospectus or the documents incorporated by reference therein or
to be filed as exhibits thereto which have not been so described and filed
as required.
(j) Each of the Company and its operating subsidiaries has been
duly organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the General Disclosure Package and the Final
Prospectus. Each of the Company and its subsidiaries is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except for
such jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, have a Material
Adverse Effect (as defined in Section 1(m) below). All of the issued and
outstanding capital stock of each subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim.
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(k) The Company has all requisite corporate power and authority
to execute and deliver this Agreement and perform its obligations
hereunder; this Agreement has been duly authorized, executed and delivered
by the Company.
(l) The Company has an authorized capitalization as set forth in
the General Disclosure Package and Final Prospectus and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and conform in
all material respects to the description of the Stock contained in the
General Disclosure Package and Final Prospectus. Except as disclosed in the
General Disclosure Package and Final Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to include any such securities
in the securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act. The Shares are listed on the
New York Stock Exchange.
(m) The separation agreement between the Company and the Selling
Stockholders (the "MASTER SEPARATION AGREEMENT") has been duly authorized,
executed and delivered by the Company, and, assuming due authorization,
execution and delivery by each Selling Stockholder, constitutes a valid,
legal, and binding obligation of the Company, enforceable against the
Company in accordance with its terms, as such enforceability may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to of affecting
creditors rights and to general principles of equity provided that no
representation is made with respect to enforceability of sections of the
Master Separation Agreement providing for indemnification. The Company has
full power and authority to enter into the Master Separation Agreement and
to consummate the transactions contemplated thereby.
(n) Except as disclosed in the General Disclosure Package and
Final Prospectus, the execution, delivery and performance of this Agreement
and the Master Separation Agreement and the consummation of the
transactions contemplated hereby do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of any of the terms or provisions of, or constitute a
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to any indenture,
mortgage, deed of trust, loan or credit agreement, note, contract,
franchise, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject (including without limitation
the Credit Agreement dated as of September 22, 2008 between AIG and the
Federal Reserve Bank of New York and the related Guarantee and Pledge
Agreement (the "FED CREDIT AGREEMENT")), except for such conflicts,
breaches, violations or defaults as would not, either individually or in
the aggregate, have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations or business of the
Company and its subsidiaries taken as a whole (such effect, a "MATERIAL
ADVERSE EFFECT"); nor will such action result in any violation of (i) any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or any regulatory authority
or court, domestic or foreign, having jurisdiction over the Company or any
of its
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subsidiaries or any of their assets, properties or operations (except for
such violations that would not result in a Material Adverse Effect) or (ii)
the provisions of the charter or bylaws of the Company or any of its
subsidiaries. As used herein, a "REPAYMENT EVENT" means any event or
condition that gives the holder of any note, debenture or other evidence of
indebtedness of the Company or any of its subsidiaries (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any of its subsidiaries.
(o) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or (ii) in default (or, with the giving
of notice or lapse of time, would be in default) under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(including without limitation the Fed Credit Agreement), except, in the
case of (ii) (y) as disclosed in the General Disclosure Package and Final
Prospectus and (z) for such defaults as would not, individually or in the
aggregate, have a Material Adverse Effect.
(p) Except as disclosed in the General Disclosure Package and
Final Prospectus and except as have already been obtained or may be
required under the Securities Act or state securities or "blue sky" laws,
no consent, approval, authorization or order of, or filing or registration
with, any court or governmental agency or body or any regulatory authority
is required for the execution, delivery and performance of this Agreement
and the Master Separation Agreement by the Company, and the consummation of
the transactions contemplated hereby and thereby.
(q) The Company is not, and after giving effect to the offering
and sale of the Shares as described in the General Disclosure Package and
the Final Prospectus will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(r) Each of the Company's subsidiaries that is engaged in the
business of insurance or reinsurance (each an "INSURANCE SUBSIDIARY",
collectively the "INSURANCE SUBSIDIARIES") is duly licensed to conduct an
insurance or a reinsurance business, as the case may be, under the
insurance statutes of each jurisdiction in which the conduct of its
business requires such licensing, except for such jurisdictions in which
the failure of the Insurance Subsidiaries to be so licensed would not,
individually or in the aggregate, result in a Material Adverse Effect. The
Insurance Subsidiaries have made all required filings under applicable
insurance statutes in each jurisdiction where such filings are required,
except for such jurisdictions in which the failure to make such filings
would not, individually or in the aggregate, result in a Material Adverse
Effect. Each of the Insurance Subsidiaries has all other necessary
authorizations, approvals, orders, consents, certificates, permits,
registrations and qualifications of and from all domestic and foreign
insurance regulatory authorities necessary to conduct their respective
businesses as described in the General Disclosure Package and the Final
Prospectus, except where the failure to have such authorizations,
approvals, orders, consents, certificates, permits, registrations or
qualifications would not, individually or in the aggregate, result in a
Material Adverse Effect, and none of the Company or its Insurance
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Subsidiaries has received any notification from any insurance regulatory
authority to the effect that any additional authorization, approval, order,
consent, certificate, permit, registration or qualification is needed to be
obtained by the Company or any of its Insurance Subsidiaries in any case
where it could be reasonably expected that (x) the Company or any of its
Insurance Subsidiaries would be required either to obtain such additional
authorization, approval, order, consent, certificate, permit, registration
or qualification or to cease or otherwise limit the writing of certain
business and (y) the failure to obtain such additional authorization,
approval, order, consent, certificate, permit, registration or
qualification or the limiting of the writing of such business would result
in a Material Adverse Effect. No insurance regulatory authority having
jurisdiction over the Company or any of its Insurance Subsidiaries has (i)
except as disclosed in the General Disclosure Package and the Final
Prospectus, or as would not have a Material Adverse Effect, issued any
order or decree impairing, restricting or prohibiting the continuation of
the business of the Company or any of the Insurance Subsidiaries in all
material respects as presently conducted or (ii) except as disclosed in the
General Disclosure Package and the Final Prospectus, issued any order or
decree impairing, restricting or prohibiting the payment of dividends by
any Insurance Subsidiary to its parent.
(s) Except as disclosed in the General Disclosure Package and the
Final Prospectus, all reinsurance treaties and arrangements to which the
Insurance Subsidiaries are a party are in full force and effect, and none
of the Insurance Subsidiaries is in violation of, or in default in the
performance, observance or fulfillment of, any obligation, agreement,
covenant or condition contained therein, except to the extent that any such
failure to be in full force and effect or any such violation or default
would not have a Material Adverse Effect. Neither the Company nor any of
the Insurance Subsidiaries has received any notice from any of the other
parties to such agreements that such other party intends not to perform in
any material respect such agreement and none of the Company and such
Insurance Subsidiaries has any reason to believe that any of the other
parties to such agreements will be unable to perform such agreements,
except to the extent that (i) the Company or such subsidiary has
established appropriate reserves on its financial statements or (ii) such
nonperformance would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; and neither the Company nor
its Insurance Subsidiaries has given effect to such agreements in its
underwriting results in its most recently filed statutory financial
statements unless such agreements were in material conformity with the
requirements therefor of the insurance department of the state of domicile
of each such subsidiary in effect at such time of preparation for
reinsurance ceded pursuant to such agreements or giving effect to such
agreements is otherwise permitted by applicable accounting or regulatory
standards.
(t) Except as disclosed in the General Disclosure Package and the
Final Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the subject
which, singularly or in the aggregate, would be reasonably likely to have a
Material Adverse Effect, and to the best knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others, except as would not, singly or in the aggregate, be
reasonably likely to have a Material Adverse Effect.
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(u) Neither the Company, nor to its knowledge, any of its
affiliates (as defined in Rule 501(b) of Regulation D under the Securities
Act, but excluding AIG and its affiliates other than the Company and its
subsidiaries) ("AFFILIATES"), has taken, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Shares; provided, however, that no such representation is made as to
the Underwriters or any person acting on their behalf.
(v) The consolidated financial statements of the Company included
in the Registration Statement, the General Disclosure Package and the Final
Prospectus fairly present in all material respects the financial condition
of the Company and its consolidated subsidiaries as of the respective dates
indicated and the consolidated results of operations and changes in
stockholders' equity of the Company and its consolidated subsidiaries for
the periods specified, in each case in all material respects in conformity
with generally accepted accounting principles as applied in the United
States ("GAAP") applied on a consistent basis throughout the periods
involved (except as indicated in the notes thereto). The summary and
selected historical financial data of the Company included in the General
Disclosure Package and the Final Prospectus fairly present in all material
respects the information shown therein and have been compiled on a basis
consistent with that of the consolidated interim or audited financial
statements of the Company included in the General Disclosure Package and
the Final Prospectus.
(w) The statutory annual and quarterly statements of the
Insurance Subsidiaries and the statutory balance sheets and income
statements included in such statutory annual and quarterly statements, most
recently filed with the State of New York, have been prepared in conformity
with required or permitted or prescribed statutory accounting principles or
practices applied on a consistent basis, except as may otherwise be
indicated in the notes thereto, and present fairly the financial position
of the Insurance Subsidiaries (on a statutory basis) for the period covered
thereby.
(x) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Final Prospectus and the General Disclosure Package any material loss or
interference with its business material to the Company and its subsidiaries
considered as a whole, otherwise than as set forth or contemplated in the
General Disclosure Package and the Final Prospectus; and, since the date as
of which information is given in the Final Prospectus and except as
contemplated in the General Disclosure Package and the Final Prospectus,
there has not been (x) any material addition, or any development involving
a prospective material addition, to the Company's consolidated reserves for
losses and loss adjustment expense, (y) any change in the authorized
capital stock of the Company or any of its subsidiaries or any increase in
the consolidated short-term or long-term debt of the Company or (z) any
Material Adverse Effect.
(y) PriceWaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, and have audited
the Company's internal control over financial reporting and management's
assessment thereof are independent public accountants as required by the
Securities Act and the rules and regulations of the Commission thereunder.
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(z) Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee, affiliate or other person acting on
behalf of the Company or any of its subsidiaries is aware of or has taken
any action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the "FCPA"), including, without
limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise
to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value
to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company and, to the
knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(aa) Since May 12, 2009, (i) no downgrading has occurred in the
rating accorded the insurer and insurance financial strength of the Company
or any Insurance Subsidiary by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Securities Act and (ii) no such rating
organization has made an initial public announcement that it has under
surveillance or review, with possible negative implications, its rating of
the insurer and insurance financial strength of the Company or any of its
Insurance Subsidiaries.
(bb) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the General Disclosure Package
and the Final Prospectus, since the end of the Company's most recent
audited fiscal year, there has been (i) no material weakness in the
Company's internal control over financial reporting (whether or not
remediated) and (ii) no change in the Company's internal control over
financial reporting that has materially affected, or is reasonably likely
to materially affect, the Company's internal control over financial
reporting.
(cc) The Company and its consolidated subsidiaries employ
disclosure controls and procedures that are designed to ensure that
information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the Commission's rules
and forms, and is accumulated and communicated to the Company's management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely decisions
regarding disclosure.
(dd) There is and has been no failure on the part of the Company
or any of the Company's directors or officers, in their capacities as such,
to comply in all material respects
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with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT"),
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(ee) The statements made in the Pricing Prospectus and the Final
Prospectus under the captions "Description of Capital Stock", insofar as
they purport to constitute a summary of the terms of the Shares, under the
caption "Certain Agreements with AIG", "Shares Eligible for Future Sale"
and "Underwriting" insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and fair
in all material respects.
(ff) The Registration Statement is not the subject of a pending
proceeding or examination under Section 8(d) or 8(e) of the Securities Act,
and the Company is not the subject of a pending proceeding under Section 8A
of the Securities Act in connection with the offering of the Shares.
(gg) To the extent required to avoid a Material Adverse Effect,
the Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "INTELLECTUAL PROPERTY") necessary to carry on the
business now operated by them; and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(hh) The operations of the Company are and have been conducted at
all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced
by any governmental agency (collectively, the "MONEY LAUNDERING LAWS") and
no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company with
respect to the Money Laundering Laws is pending or, to the best knowledge
of the Company, threatened.
(ii) Neither the Company nor, to the knowledge of the Company,
any director, officer, agent, employee, affiliate or person acting on
behalf of the Company is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department ("OFAC"); and the Company will not directly or indirectly use
the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
10
Any certificate signed by an officer of the Company and delivered
to the Underwriters or to counsel for the Underwriters shall be deemed to
be a representation and warranty by the Company to each Underwriter as to
the matters set forth therein.
2. Representations, Warranties and Agreements of the Selling
Stockholders. Each Selling Stockholder severally represents, warrants to and
agrees with, the Underwriters that:
(a) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Stockholder of this
Agreement, and for the sale and delivery of the Shares to be sold by such
Selling Stockholder hereunder, have been obtained; and such Selling
Stockholder has full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Shares to be sold
by such Selling Stockholder hereunder, except in each such case, with such
exceptions as will not, individually or in the aggregate, have a material
adverse effect on the Selling Stockholder's ability to consummate the
transactions contemplated herein.
(b) The sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with all of the
provisions of this Agreement and the consummation of the transactions
herein and therein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or to
which any of the property or assets of such Selling Stockholder is subject,
including without limitation the Fed Credit Agreement, nor (ii) result in
any violation of the provisions of the Certificate of Incorporation or
By-laws of such Selling Stockholder, nor (iii) result in the breach or
violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder, except, in the
case of (i) and (iii), with such exceptions as will not, individually or in
the aggregate, have a material adverse effect on the Selling Stockholders'
ability to consummate the transactions contemplated herein.
(c) Immediately prior to each Time of Delivery (as defined in
Section 4 hereof), such Selling Stockholder will have good and valid title
to a security interest in the Shares to be sold hereunder, free and clear
of all liens, encumbrances, equities or claims, other than the lien under
the Fed Credit Agreement, which shall be released at or prior to delivery
against payment by the Underwriters for such Shares, and upon payment
therefor and delivery to the Depository Trust Company ("DTC") or its agent
of the Shares registered in the name of Cede & Co. ("CEDE") or such other
nominee as may be designated by DTC, both as provided for herein, and the
crediting of the Shares to the Underwriters' accounts with DTC, Cede & Co.
or such other nominee designated by DTC will be a "protected purchaser" of
the Shares (as defined in Section 8-303 of the Uniform Commercial Code as
adopted in the State of New York (the "UCC")), the Underwriters will
acquire a valid "security entitlement" (within the meaning of Section 8-501
of the UCC) to the Shares, and no action based on an "adverse claim" (as
defined in Section 8-102 of the UCC) may be asserted against the
Underwriters with respect to such security entitlement (assuming that the
Underwriters are without notice of any such adverse claim).
11
(d) During the period beginning from the date hereof and
continuing to and including the date ninety (90) days after the date of the
Prospectus (the "LOCK UP PERIOD"), not to offer, sell contract to sell or
otherwise dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for, or
that represent the right to receive, Stock or any such substantially
similar securities (other than pursuant to employee stock option plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement),
without the prior written consent of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.; provided that
a Selling Stockholder may transfer shares of common stock of the Company to
American International Group, Inc. ("AIG"), or to any subsidiary of AIG if
the transferee agrees to be bound by the restrictions set forth in this
Section 2(d). For the avoidance of doubt, it is understood that the
restrictions in this Section 2(d) apply only to the shares of Company
common stock directly held by the Selling Stockholders, and do not apply to
any shares held by affiliates of the Selling Stockholders in connection
with any asset management or investment management business or otherwise in
a fiduciary capacity.
(e) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares.
(f) To the extent that any statements or omissions made in the
Registration Statement, the Base Prospectus, any Preliminary Prospectus,
the Pricing Prospectus, the Prospectus or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus are made in reliance upon
and in conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, which information consists
solely of the information set forth in Schedule IV hereto, such Base
Prospectus, Preliminary Prospectus, Pricing Prospectus, Prospectus and
Issuer Free Writing Prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus, when they become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act and the rules and regulations of
the Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(g) The Master Separation Agreement has been duly authorized,
executed and delivered by such Selling Stockholder, and, assuming due
authorization, execution and delivery by the Company, constitutes a valid,
legal, and binding obligation of each such Selling Stockholder, enforceable
against such Selling Stockholder in accordance with its terms, as such
enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors rights and to general
principles of equity provided that no representation is made with respect
to enforceability of sections of the Master Separation Agreement providing
for indemnification. Each such Selling Stockholder has full power and
authority to enter into the Master Separation Agreement and to consummate
the transactions contemplated thereby.
12
(h) At each Time of Delivery, all conditions necessary for
automatic release of any Shares then being delivered that were previously
pledged by such Selling Stockholder as collateral under the Guarantee and
Pledge Agreement dated as of September 22, 2008 among American
International Group, Inc., as Borrower, the Guarantors party thereto and
Federal Reserve Bank of New York, as Lender or Secured Party (the "AIG
Pledge Agreement"), shall have been met in accordance with the terms of
Section 5(f) of the AIG Pledge Agreement and such Shares shall no longer be
subject to a Transaction Lien within the meaning of the AIG Pledge
Agreement.
(i) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at
the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof).
Any certificate signed by an officer of any Selling Stockholder and
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed to be a representation and warranty by such Selling Stockholder to
each Underwriter as to the matters set forth therein.
3. Purchase, Sale and Delivery of the Shares.
(a) Subject to the terms and conditions herein set forth, (a)
each Selling Stockholder agrees, severally and not jointly, to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Selling Stockholders, at a purchase price per
share of $38.00, the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number
of Firm Shares to be sold by each Selling Stockholder, as set forth
opposite their respective names on Schedule I(b), by a fraction, the
numerator of which is the aggregate number of Firm Shares to be purchased
by such Underwriter as set forth opposite the name of such Underwriter in
Schedule I(a) hereto and the denominator of which is the aggregate number
of Firm Shares to be purchased by all of the Underwriters from the Selling
Stockholders hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as
provided below, each Selling Stockholder, severally and not jointly, agrees
to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Selling Stockholders, at
the per share purchase price set forth above, that portion of the number of
Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction the numerator of
which is the maximum number of Optional Shares which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule I(a) hereto and the denominator of which is the maximum number of
Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
(b) Each Selling Stockholder, severally and not jointly, hereby
grants to the Underwriters the right to purchase at their election up to
the number of Optional Shares forth opposite their respective names on
Schedule I(b), at the per share purchase price set forth in clause (a)
above, for the sole purpose of covering sales of shares in excess of the
number of
13
Firm Shares. Any such election to purchase Optional Shares may be exercised
only by written notice from you in accordance with Section 13 hereof, given
within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and
the date on which such Optional Shares are to be delivered, as determined
by you but in no event earlier than the First Time of Delivery (as defined
in clause (d) hereof) or, unless you otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice,
subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth.
(c) Upon the authorization by you of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus.
(d) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight
hours' prior notice to the Selling Stockholders shall be delivered by or on
behalf of the Selling Stockholders to the Representatives, through the
facilities of DTC, for the account of such Underwriter, against payment by
or on behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the
Selling Stockholders to the Representatives at least forty-eight hours in
advance. As to any Shares that are in certificated form the Company will
cause the certificates representing such certificated Shares to be made
available for checking and packaging at least twenty-four hours prior to
the Time of Delivery (as defined below) with respect thereto at the office
of DTC or its designated custodian (the "DESIGNATED OFFICE"). The time and
date of such delivery and payment shall be, with respect to the Firm
Shares, 9:30 a.m., New York time, on [June 10], 2009 or such other time and
date as the Representatives and the Selling Stockholders may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York
time, on the date specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written notice
given by the Representatives of the Underwriters' election to purchase such
Optional Shares, or such other time and date as the Representatives and the
Selling Stockholders may agree upon in writing. Such time and date for
delivery of the Firm Shares is herein called the "FIRST TIME OF DELIVERY",
such time and date for delivery of the Optional Shares, if not the First
Time of Delivery, is herein called the "SECOND TIME OF DELIVERY", and each
such time and date for delivery is herein called a "TIME OF DELIVERY".
(e) Delivery of the documents to be delivered at each Time of
Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof
and payment for the Shares shall be made at the office of ▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (or such other place
as may be agreed to by the Underwriters and the Company) at, with respect
to the Firm Shares, 9:30 a.m. (New York time) on [June 10], 2009, which
date and time may be postponed by agreement between the Underwriters, the
Company and the Selling Stockholders and with respect to the Option Shares,
9:30 a.m. (New York time) on the date specified in the written notice given
by the Representatives of the Underwriters' election to purchase such
Optional Shares, which date and time may be postponed by agreement between
the Underwriters and the Company.
14
(f) Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligations of the Underwriters hereunder.
4. Covenants of the Company. The Company covenants with each of the
Underwriters as follows:
(a) To prepare the Final Prospectus as amended and supplemented
in relation to the applicable Shares in a form approved by the Underwriters
and to file timely and in the manner required such Final Prospectus
pursuant to Rule 424(b) under the Securities Act (without reliance on Rule
424(b)(8)); to make no further amendment or any supplement to the
Registration Statement, any Preliminary Prospectus (including any
prospectus included in the Original Registration Statement or amendment
thereto at the time it became effective) or to the Final Prospectus as
amended or supplemented after the date hereof and prior to the First Time
of Delivery unless the Underwriters shall have had a reasonable opportunity
to review and comment upon any such amendment or supplement prior to any
filing thereof; to advise the Underwriters, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or any supplement to the Final Prospectus or any
amended Final Prospectus has been filed and to furnish the Underwriters
with copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Shares and, during such same period, to
advise the Underwriters, promptly after it receives notice thereof, of (i)
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of the Final Prospectus or of any examination
pursuant to Section 8(e) of the Securities Act concerning the Registration
Statement, (ii) the suspension of the qualification of the Shares for
offering or sale in any jurisdiction or of the initiation or threatening of
any proceeding for any such purpose, (iii) any request by the Commission
for the amending or supplementing of the Registration Statement or Final
Prospectus or for additional information or (iv) the Company becoming the
subject of a proceeding under Section 8A of the Securities Act in
connection with the offering of the Shares; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use
of the Final Prospectus or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order. The Company
shall pay the required Commission filing fees relating to the Shares within
the time required by Rule 456(b)(1) of the Securities Act without regard to
the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the Securities Act.
(b) Not later than 12:00 p.m. (New York time) on the second
business day following the date the Shares are first released by the
Underwriters for sale to purchasers and from time to time, furnish at its
own expense to the Underwriters and to ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters, copies of the Final Prospectus (and all amendments and
supplements thereto) in each case as soon as available and in such
quantities as the Underwriters reasonably request for internal use and for
distribution to prospective purchasers. The Company will pay the expenses
of printing and distributing any Permitted Free Writing Prospectus (as
hereinafter defined) and the Prospectus and any amendments or supplements
15
thereto (including without limitation any costs associated with electronic
delivery of these materials).
(c) Furnish or deliver to the Underwriters and to ▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, counsel for the Underwriters, without charge, signed copies of the
Original Registration Statement and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein or otherwise
deemed to be a part thereof) and signed copies of all consents and
certificates of experts, and will also deliver to the Underwriters, without
charge, a conformed copy of the Original Registration Statement and of each
amendment thereto (without exhibits) for each of the Underwriters. The
copies of the Original Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(d) Promptly to take such action as the Underwriters may
reasonably request from time to time to qualify the Shares for offering and
sale under the securities laws of such jurisdictions as the Underwriters
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions in the United States for
as long as may be necessary to complete the distribution of the Shares;
provided that in connection therewith, the Company shall not be required to
qualify as a foreign corporation or otherwise subject itself to taxation or
service of process in any jurisdiction in which it is not otherwise so
qualified or subject.
(e) To make generally available to securityholders of the Company
as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Securities Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the rules and regulations thereunder (including,
at the option of the Company, Rule 158).
(f) To pay the required Commission filing fees relating to the
Shares within the time required by Rule 456(b)(1) under the Securities Act
and otherwise in accordance with Rules 456(b) and 457(r) under the
Securities Act.
(g) That none of the Company or any of its Affiliates will take,
directly or indirectly, any action which is designed to stabilize or
manipulate, or which constitutes or which might reasonably be expected to
cause or result in stabilization or manipulation, of the price of any
security of the Company in connection with the offering of the Shares.
(h) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the Final
Prospectus, not to offer, sell, contract to sell, pledge, grant any option
to purchase, make any short sale or otherwise dispose, except as provided
hereunder, of any securities of the Company that are substantially similar
to the Shares, including but not limited to any options or warrants to
purchase shares of Stock or any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to director or
employee
16
stock option or equity plans existing on the date of this Agreement,
including for the avoidance of doubt the Company's 2009 Long Term Equity
Incentive Plan, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of the date of this Agreement),
without your prior written consent.
(i) To take such steps as shall be necessary to ensure that it
shall not become an "investment company" within the meaning of such term
under the Investment Company Act.
(j) The Company has complied and will comply with the
requirements of Rule 433 under the Securities Act applicable to any Issuer
Free Writing Prospectus relating to the Shares, including timely filing
with the Commission or retention where required and legending.
(k) If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus included or would include an
untrue statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances, not misleading, the Company has notified or
will notify promptly the Underwriters so that any use of such Issuer Free
Writing Prospectus may cease until it is amended or supplemented. The
foregoing two sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter expressly for use
therein.
5. Further Covenants and Agreements.
(a) The Company and the Selling Stockholders each represent and
agree that, without the prior consent of the Representatives (such consent
not to be unreasonably withheld), it has not made and will not make any
offer relating to the Shares that would constitute a free writing
prospectus as defined in Rule 405 under the Securities Act; and each
Underwriter represents and agrees that, without the prior consent of the
Company, the Selling Stockholders and the Representatives (such consent not
to be unreasonably withheld), it has not made and will not make any offer
relating to the Securities that would constitute a free writing prospectus.
Any such free writing prospectus the use of which has been consented to by
the Company, the Selling Stockholders and the Representatives is listed on
Schedule II(a) hereto and is referred hereafter as a "PERMITTED FREE
WRITING PROSPECTUS".
(b) The Selling Stockholders and the Company acknowledge that (i)
the purchase and sale of the Shares pursuant to this Agreement is an
arm's-length commercial transaction between the Company and the Selling
Stockholders, on the one hand, and the several Underwriters, on the other
hand, (ii) in connection with the offering contemplated hereby and the
process leading to such transaction each Underwriter is and has been acting
solely as a principal and is not the agent or fiduciary of the Company or
the Selling Stockholders, or their respective stockholders, creditors,
employees or any other party, (iii) no Underwriter has assumed or will
assume an advisory or fiduciary responsibility in favor of the Company or
the Selling Stockholders with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company or the Selling
Stockholders on other matters) and no Underwriter has
17
any obligation to the Company or the Selling Stockholders with respect to
the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (iv) the Underwriters and their respective affiliates
may be engaged in a broad range of transactions that involve interests that
differ from those of the Company or the Selling Stockholders, and (v) the
Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and each of the
Company and the Selling Stockholders have consulted their own legal,
accounting, regulatory and tax advisors to the extent it deemed
appropriate.
6. Expenses. The Company and the Selling Stockholders covenant and
agree with one another and with the several Underwriters that (i) the Company
agrees to pay: (a) all costs and expenses incident to the preparation, printing,
shipping and distribution of the Registration Statement, the Base Prospectus,
any Preliminary Prospectus, the General Disclosure Package and the Final
Prospectus and any amendments or supplements thereto, and this Agreement; (b)
the fees and expenses of the Company's counsel and independent accountants; (c)
the fees and expenses of qualifying the Shares under the securities laws of the
several jurisdictions as provided in Section 4(e) and of preparing, printing and
distributing a Blue Sky Memorandum (including reasonable related fees and
expenses of counsel to the Underwriters in connection therewith), if any; (d)
any filings required to be made with FINRA (including filing fees and the
reasonable fees and expenses of counsel for the Underwriter relating to such
filings); (e) the costs and expenses of the Company and the reasonable expenses
of the Underwriters and any consultants in connection with the marketing and
offering of the Shares and the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation, expenses
associated with the production of road show slides and graphics, and the travel
and lodging expenses of the representatives and officers of the Company and any
such consultants; (f) any registration fees required to be paid by the Company
in connection with the registration of the Shares; and (g) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement, and (ii) the Selling Stockholders agree to pay: (a) the fees and
expenses of the Selling Stockholders' counsel, (b) any costs and expenses
incurred by the Selling Stockholders in connection with the marketing and
offering of the Shares and any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation, expenses
associated with any travel and lodging expenses of the Selling Stockholders; and
(c) any stamp or transfer taxes in connection with the sale of the Shares to the
Underwriters and all other costs and expenses incident to the performance of the
obligations of the Selling Stockholders under this Agreement; provided in each
case that, except as provided in this Section 6, Section 8 and Section 10, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel.
7. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters hereunder, as to the Shares to be delivered at each Time of
Delivery, are subject to the accuracy, when made and at and as of such Time of
Delivery, of the representations and warranties of the Company and the Selling
Stockholders contained herein, to the performance by the Company and the Selling
Stockholders of each of their obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and
18
regulations under the Securities Act and in accordance with Section 4(a)
hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall
have been complied with to the Underwriters' reasonable satisfaction.
(b) ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have furnished to the
Underwriters its written opinion and negative assurance letter, as special
counsel to the Company, addressed to the Underwriters and dated at such
Time of Delivery, to the effect set forth in Exhibit A hereto.
(c) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel to the Company, shall have
furnished to the Underwriters his written opinion addressed to the
Underwriters and dated at such Time of Delivery, to the effect set forth in
Exhibit B hereto.
(d) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for each of the Selling
Stockholders shall have furnished to you their written opinion addressed to
the Underwriters and dated at such Time of Delivery, to the effect set
forth in Exhibit C hereto.
(e) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have furnished to the Underwriters
its written opinion, as counsel to the Underwriters, addressed to the
Underwriters and dated at such Time of Delivery, in form and substance
reasonably satisfactory to the Underwriters.
(f) The Underwriters shall have received, on each of the date
hereof and such Time of Delivery, a letter dated the date hereof and at
such Time of Delivery, as the case may be, to the effect set forth in
Exhibit D hereto, from PriceWaterhouseCoopers LLP, and with respect to each
such letter dated any such Time of Delivery as to such other matters as the
Representatives may reasonably request and in the form and substance
satisfactory to the Underwriters.
(g) The Company shall have furnished to the Underwriter a
certificate of the Company, signed by the Chief Financial Officer of the
Company, dated as of such Time of Delivery, in the form attached hereto as
Exhibit E.
(h) The Company shall have furnished to the Underwriters on such
Time of Delivery its certificate, dated such Time of Delivery, executed by
its Chief Executive Officer and by its Chief Financial Officer, in form and
substance reasonably satisfactory to the Underwriters, to the effect that
(i) the representations, warranties and agreements of the Company in
Section 1 are true and correct as of the date given and as of such Time of
Delivery, (ii) the Company has complied in all material respects with all
its agreements contained herein to be performed prior to or on such Time of
Delivery and (iii) the conditions set forth in Sections 7(k) and 7(m) have
been fulfilled.
(i) The Underwriters shall have received on such Time of
Delivery, certificates of each of the Selling Stockholders, dated such Time
of Delivery, executed by an authorized officer of such Selling Stockholder,
in the form and substance reasonably satisfactory to the Underwriters, to
the effect that the representations, warranties and agreements of such
Selling
19
Stockholders in Section 2 are true and correct as of the date given and as
of such Time of Delivery; and such Selling Stockholder has complied in all
material respects with all its agreements contained herein to be performed
prior to or on such Time of Delivery.
(j) The Master Separation Agreement, the Transition Services
Agreement, the Stockholders Agreement (if required), the Registration
Rights Agreement (if required) and the Selling Stockholders' Consent to
amend and restate the Company's certificate of incorporation each shall
have been duly authorized, executed and delivered or shall be executed and
delivered simultaneously with such Time of Delivery and shall not have been
rescinded prior to the Time of Delivery.
(k) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the General Disclosure Package and the Final Prospectus any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the General Disclosure Package and the Final Prospectus
or (ii) since such date there shall not have been (A) any addition, or any
development involving a prospective addition, to the Company's consolidated
reserve for losses and loss adjustment expense or (B) any change in the
capital stock (other than issuances pursuant to a stock compensation plan
of the Company disclosed in the General Disclosure Package), or any change
in the short-term debt or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the Final
Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is, in the reasonable judgment of the Underwriters, so material
and adverse as to make it impracticable or inadvisable to proceed with the
offering or the delivery of the Shares being delivered on such Time of
Delivery on the terms and in the manner contemplated in the General
Disclosure Package and the Final Prospectus.
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in the
shares of the common stock of the Company, or in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
or maximum prices shall have been established on such exchange by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium shall
have been declared by United States federal or New York authorities; (iii)
the United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States, or
there shall have been a declaration of a national emergency or war by the
United States; (iv) there shall have occurred a material disruption in
securities settlement or clearance services; or (v) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it, in
each case, in the reasonable judgment of the Underwriters, impracticable or
inadvisable to proceed with the offering or delivery of the Shares being
delivered on such Time of Delivery on the terms and in the manner
contemplated in the General Disclosure Package and the Final Prospectus.
20
(m)Subsequent to the execution and delivery of this Agreement, no
downgrading shall have occurred in the rating accorded to the financial
strength or credit of the Company, the insurance financial strength or
issuer credit of the Insurance Subsidiaries or the debt securities of the
Company by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of
the Securities Act and (ii) no such rating organization shall have made an
initial public announcement that it has under surveillance or review, with
possible negative implications, its rating of the financial strength of the
Company, the insurance financial strength or issuer credit of the Insurance
Subsidiaries or the debt securities of the Company.
(n) The Underwriters shall have received executed copies of an
agreement from the directors and executive officers of the Company listed
in Schedule III hereto that includes "lock-up" provisions to the effect set
forth in Exhibit F hereto.
(o) At such Time of Delivery, counsel for the Underwriters shall
have been furnished with such documents and opinions as it may reasonably
require for the purpose of enabling it to pass upon the sale of the Shares
as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company and the Selling
Stockholders in connection with the sale of the Shares as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter, within
the meaning of the Securities Act or the Exchange Act, from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Shares), to
which the Underwriters or any such controlling person may become subject,
insofar as such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any Issuer Free
Writing Prospectus, the General Disclosure Package, the Final Prospectus or
in any amendment or supplement thereto or any "issuer information" filed or
required to be filed pursuant to Rule 433(d) under the Securities Act or
(ii) the omission or alleged omission to state in any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the General Disclosure
Package, the Final Prospectus or in any amendment or supplement thereto or
any "issuer information" filed or required to be filed pursuant to Rule
433(d) under the Securities Act any material fact required to be stated
therein or necessary to make the statements therein not misleading; and
shall reimburse the Underwriters and controlling person promptly upon
demand for any documented legal or other expenses reasonably incurred by
the Underwriters or any such controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the any Preliminary Prospectus, any
Issuer Free Writing Prospectus,
21
the General Disclosure Package, the Final Prospectus, in reliance upon and
in conformity with the written information furnished to the Company by or
on behalf of the Underwriters concerning the Underwriters specifically for
inclusion therein, which information consists solely of the information set
forth in Schedule V hereto.
(b) The Selling Stockholders shall severally, indemnify and hold
harmless each Underwriter, and each person, if any, who controls any
Underwriter, within the meaning of the Securities Act or the Exchange Act,
from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of the
Shares), to which the Underwriters or any such controlling person may
become subject, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the General Disclosure Package, the Final
Prospectus or in any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by the
Selling Stockholders or (ii) the omission or alleged omission, in reliance
upon and in conformity with written information furnished to the Company by
the Selling Stockholders, to state in any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the General Disclosure Package, the Final
Prospectus or in any amendment or supplement thereto any material fact
necessary to make the statements therein not misleading; and shall
reimburse the Underwriters and each such controlling person promptly upon
demand for any legal or other expenses reasonably incurred by the
Underwriters or any such controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred;
(c) The Underwriters, severally and not jointly, shall indemnify
and hold harmless the Company and the Selling Stockholders, and each
person, if any, who controls the Company or the Selling Stockholders within
the meaning of the Securities Act or the Exchange Act from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company, the Selling Stockholders or any such
controlling person may become subject, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the General
Disclosure Package, the Final Prospectus or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the General
Disclosure Package, the Final Prospectus or in any amendment or supplement
thereto, any material fact necessary to make the statements therein not
misleading, but in each case only to the extent that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with the written information furnished to
the Company or the Selling Stockholders by or on behalf of the Underwriters
specifically for inclusion therein, which information consists solely of
the information set forth in Schedule V hereto, and shall reimburse the
Company or the Selling Stockholders and any such controlling person
promptly upon demand for any legal or other expenses reasonably incurred by
the Company or the Selling Stockholders or any such controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing
22
indemnity agreement is in addition to any liability which the Underwriters
may otherwise have to the Company, or the Selling Stockholders or any such
controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve the indemnifying party from any liability which the
indemnifying party may have under this Section 8 except to the extent it
has been materially prejudiced by such failure and, provided, further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under
this Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Underwriters shall have the right to employ separate
counsel to represent jointly the Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company under this Section 8 if, in the reasonable
judgment of the Underwriters, based on the advice of counsel, it is
advisable for the Underwriters and such officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event
the reasonable fees and expenses of such separate counsel shall be paid by
the Company (it being understood that the Company shall not be liable for
the expenses of more than one separate counsel (together with local
counsel)). No indemnifying party shall, (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld) settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent (1)
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (2)
does not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party, or (ii) be liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss of liability by reason of
such settlement or judgment.
(e) If the indemnification provided for in this Section 8 shall
for any reason be unavailable or insufficient to hold harmless an
indemnified party under Section 8(a), (b) or (c) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each relevant indemnifying party shall, in lieu of
indemnifying such indemnified
23
party, contribute to the amount paid or payable by such indemnified party
as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriters on the other from the offering of the
Shares, or (ii) if the allocation provided by clause 8(e)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(e)(i) but
also the relative fault of the Company and the Selling Stockholders on the
one hand and the Underwriters on the other with respect to the statements
or omissions or alleged statements or alleged omissions that resulted in
such loss, claim, damage or liability (or action in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and
the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of
the Shares purchased under this Agreement (before deducting expenses)
received by the Selling Stockholders on the one hand, and the total
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the Shares under this Agreement. The
relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Company,
the Selling Stockholders or the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and
equitable if the amount of contributions pursuant to this Section 8(e) were
to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(e) shall be deemed to include,
for purposes of this Section 8(e), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 8(e), no Underwriters shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares
underwritten by it were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been previously 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.
9. Termination. The obligations of the Underwriters hereunder may be
terminated by the Underwriters by notice given to and received by the Company
and the Selling Stockholders prior to delivery of and payment for the Shares,
if, prior to that time, any of the events described in Sections 7(k), (l) or (m)
shall have occurred or if the Underwriters shall decline to purchase such Shares
for any reason permitted under this Agreement. In such case, the Company and the
Selling Stockholders shall have no liability hereunder except as provided by
Sections 6, 8 and 10 hereof.
10. Reimbursement of Underwriters' Expenses. (a) if (i) the Selling
Stockholders shall fail to tender the Shares for delivery to the Underwriters
for any reason other than a breach by the Underwriters of their representations
herein or obligations hereunder or (ii) the Underwriters shall
24
decline to purchase the Shares as a result of (x) the failure of any of the
conditions herein to be satisfied due to a breach of any of the representations,
warranties or covenants by the Selling Stockholders, (y) the failure by counsel
for the Selling Stockholders to furnish its written opinion pursuant to 7(d) of
this Agreement or (z) any other acts or matters solely within the control of the
Selling Stockholders, then the Selling Stockholders shall reimburse the
Underwriters for the reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been reasonably incurred by them in
connection with this Agreement and the proposed purchase of the Shares, and upon
demand, the Selling Stockholders shall pay the full amount of such reasonable
fees and expenses to the Underwriters; and (b) if the Underwriters shall decline
to purchase the Shares for any other reason permitted under this Agreement
(including the termination of this Agreement pursuant to Section 9 but excluding
the failure of any of the conditions herein to be satisfied as a result of a
breach by the Selling Stockholders or the Underwriters of their respective
representations, warranties or covenants herein) other than those specified in
(a) above, the Company shall reimburse the Underwriters for the reasonable fees
and expenses of their counsel and for such other out-of-pocket expenses as shall
have been reasonably incurred by them in connection with this Agreement and the
proposed purchase of the Shares, and upon demand, the Company shall pay the full
amount thereof to the Underwriters.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) If to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇ ▇▇▇▇▇, Attention: Registration Department (Fax number
▇▇▇-▇▇▇-▇▇▇▇) and to ▇.▇. ▇▇▇▇▇▇ Securities Inc., at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇, ▇▇ ▇▇▇▇▇, Attention: Equity Syndicate Desk (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
with a copy (which shall not constitute notice) to ▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇; Telephone ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to it at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: General Counsel (Fax: ▇▇▇-▇▇▇-▇▇▇▇; Telephone: ▇▇▇-▇▇▇-▇▇▇▇);
with a copy (which shall not constitute notice) to ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇,
Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇; Telephone: ▇▇▇-▇▇▇-▇▇▇▇).
(c) If to the Selling Stockholders, shall be delivered or sent by
mail, telex or facsimile transmission to American International Group,
Inc., at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel (Fax: ▇▇▇-▇▇▇-▇▇▇▇) and to American Home Assurance at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel (Fax:
▇▇▇-▇▇▇-▇▇▇▇)
with a copy (which shall not constitute notice) to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇, Telephone:
▇▇▇-▇▇▇-▇▇▇▇).
25
Any notice of a change of address or facsimile transmission number
must be given by the Company, the Selling Stockholders or the Underwriters,
as the case maybe, in writing at least three days in advance of such
change.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Selling
Stockholders, the Company and their respective successors, and to the extent
provided in Section 8 hereof, to each person, if any, who controlling person,
within the meaning of the Securities Act or the Exchange Act. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that (i) the representations, warranties, indemnities and agreements of
the Company and the Selling Stockholders contained in this Agreement shall also
be deemed to be for the benefit of the directors, officers and employees of the
Underwriters and the person or persons, if any, who control the Underwriters
within the meaning of Section 15 of the Securities Act and (ii) the
representations and warranties of the Underwriters in this Agreement and the
indemnity agreement of the Underwriters contained in Section 8(c) of this
Agreement shall be deemed to be for the benefit of directors, officers and
employees of the Company and the Selling Stockholders, and any person
controlling the Company and the Selling Stockholders within the meaning of
Section 15 of the Securities Act. Nothing contained in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 12, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
13. Default of One or More of the Several Underwriters. If any one or
more of the several Underwriters shall fail or refuse to purchase Shares that it
or they have agreed to purchase hereunder on the First Time of Delivery, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase does not exceed 10% of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall
be obligated, severally, in the proportions that the number of Shares set forth
opposite their respective names on Schedule I(a) bears to the aggregate number
of Shares set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as may be specified by the Underwriters with the
consent of the non-defaulting Underwriters, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date. If any one or more of the Underwriters shall fail or refuse to
purchase Shares and the aggregate number of Shares with respect to which such
default occurs exceeds 10% of the aggregate number of Shares to be purchased on
the First Time of Delivery, and arrangements satisfactory to the Underwriters
and the Selling Stockholders for the purchase of such Shares are not made within
48 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company or the Selling
Stockholders, except that the provisions of Section 6, Section 8 and Section 10
(which shall only apply with respect to the non-defaulting Underwriters) shall
at all times be effective and shall survive such termination, but nothing herein
shall relieve a defaulting Underwriter from liability for its default. In any
such case either the Underwriters or the Company shall have the right to
postpone such Time of Delivery but in no event for longer than seven days in
order that the required changes, if any, to the Final Prospectus or any other
documents or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this
Section 13. Any action taken under
26
this Section 13 shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
14. Survival. The respective indemnities, representations, warranties
and agreements of the Company and the Underwriters contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Shares and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any of them or any person
controlling any of them.
15. Definition of the Term "Business Day". For purposes of this
Agreement, "BUSINESS DAY" means any day on which the New York Stock Exchange,
Inc. is open for trading.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
SIGNATURE PAGE FOLLOWS
27
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
TRANSATLANTIC HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
AMERICAN INTERNATIONAL GROUP, INC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP DIVESTITURE
AMERICAN HOME ASSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer, Senior
Vice President and Treasurer
Accepted and agreed by:
/s/ ▇▇▇▇▇▇▇, Sachs & Co.
------------------------------------
(▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.)
Accepted and agreed by:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Executive Director
UNDERWRITING AGREEMENT
SCHEDULE I(A)
NUMBER OF SHARES
UNDERWRITERS TO BE PURCHASED
------------ ----------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. 9,100,000
▇▇▇▇▇▇▇, Sachs & Co. 9,100,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 4,420,000
Lazard Capital Markets LLC 1,820,000
▇▇▇▇▇▇▇ & Partners Securities, LLC 780,000
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 780,000
Waller (USA) LLC --
----------
26,000,000
SCHEDULE I(B)
SELLING STOCKHOLDERS
NUMBER OF FIRM MAXIMUM NUMBER OF
SELLING STOCKHOLDER SHARES TO BE SOLD OPTIONAL SHARES TO BE SOLD
---------------------------------- ----------------- --------------------------
American International Group, Inc. 17,073,690 0
American Home Assurance Company 8,926,310 3,900,000
SCHEDULE II(A)
(I) ISSUER FREE WRITING PROSPECTUSES INCLUDED IN THE GENERAL DISCLOSURE PACKAGE
None
(II) OTHER ISSUER FREE WRITING PROSPECTUSES
Issuer Free Writing Prospectus dated June 2, 2009 containing an article
concerning the Company published by ▇▇▇▇▇▇▇▇▇.▇▇▇.
Issuer Free Writing Prospectus dated June 4, 2009 containing a Statement from
the Company regarding ▇▇▇▇▇'▇ announcement.
SCHEDULE II(B)
ADDITIONAL FILINGS
None
SCHEDULE II(C)
ORALLY CONVEYED PRICING INFORMATION
1. Public Offering price: $38.00 per share
2. Number of Shares offered: 26,000,000 shares
SCHEDULE III
LOCK UP AGREEMENT PARTIES
1. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
2. ▇▇▇▇▇▇▇ ▇▇▇▇▇
3. ▇▇▇▇ ▇. ▇▇▇▇▇
4. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
5. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
6. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
7. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
8. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
9. ▇▇▇▇ ▇. ▇▇▇▇
10. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
11. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
12. ▇▇▇▇▇▇▇ ▇. Press
13. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
14. C. ▇▇▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE IV
INFORMATION FURNISHED TO THE COMPANY BY THE SELLING STOCKHOLDERS
The Selling Stockholders have furnished to the Company for use in the Final
Prospectus:
(a) The information provided under the caption "Selling Stockholder" in
the Final Prospectus, other than the last paragraph thereof.
(b) The paragraph under the caption "Risk Factors - Uncertainty about the
continued ownership by the AIG Group of a significant portion of our
outstanding shares of common stock may have an adverse effect on us."
The second and third paragraphs under the caption "Risk Factors - The
current investigations into certain non-traditional, or loss
mitigation, insurance products and other legal matters could have a
material adverse effect on our financial condition or results of
operations."
(c) The first two paragraphs under the caption "Management's Discussion
and Analysis of Financial Condition and Results of Operation - Recent
Actions by the AIG Group."
SCHEDULE V
INFORMATION PROVIDED BY THE UNDERWRITERS:
The Underwriters have furnished to the Company for use in the Final Prospectus:
(a) The fifth paragraph under the caption "Underwriting" in the Final
Prospectus concerning the terms of the offering.
(b) The seventh, eighth and ninth paragraphs under the caption
"Underwriting" in the Final Prospectus, concerning stabilizing and
syndicate covering transactions by the Underwriters.
