METLIFE, INC. COMMON EQUITY UNITS UNDERWRITING AGREEMENT
Exhibit 1.3
METLIFE, INC.
COMMON EQUITY UNITS
March 2, 2011
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
MetLife, Inc., a Delaware corporation (the “Company”), American International Group,
Inc., a Delaware corporation (“AIG”), and its wholly owned subsidiary, ALICO Holdings LLC,
a Delaware limited liability corporation (the “Selling Securityholder”), propose to enter
into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I
hereto, with such additions and deletions as the parties thereto may determine and, subject to the
terms and conditions stated herein and therein, the Selling Securityholder proposes to sell to the
firms named in Schedule I to the applicable Pricing Agreement (the “Underwriters” with
respect to such Pricing Agreement and the securities specified therein) of the aggregate number of
common equity units of the Company specified in Schedule I to the applicable Pricing Agreement (the
“Securities” with respect to such Pricing Agreement).
The Securities comprise common equity units, each with an initial stated amount of $75.00,
consisting of three stock purchase contracts and undivided beneficial ownership interests in debt
securities of the Company as follows:
| (i) | prior to October 10, 2012 (or such later date as determined pursuant to the Stock Purchase Contact Agreement (as defined below)) (the “First Stock Purchase Date”), |
| (a) | a one-fortieth (1/40) undivided beneficial interest in one (1) Series C Senior Debenture due 2023 (“Series C Debt Security”) having a principal amount of one thousand dollars ($1,000) and | ||
| (b) | one stock purchase contract (“Series C Stock Purchase Contract”) under which the holder must purchase and the Company must sell on the First Stock Purchase Date for a price of $25.00 per security a number of shares of common stock of the Company, par value $0.01 per share (“Common Stock”) determined pursuant to the terms of the Series C Stock Purchase Contract; |
| (ii) | prior to September 11, 2013 (or such later date as determined pursuant to the Stock Purchase Contract Agreement) (the “Second Stock Purchase Date”), |
| (a) | a one-fortieth (1/40) undivided beneficial interest in one (1) Series D Senior Debenture due 2024 (“Series D Debt Security”) having a principal amount of one thousand dollars ($1,000) and | ||
| (b) | one stock purchase contract (“Series D Stock Purchase Contract”) under which the holder must purchase and the Company must sell on the Second Stock Purchase Date for a price of $25.00 per security a number of shares of Common Stock determined pursuant to the terms of the Series D Stock Purchase Contract; |
| (iii) | a one-fortieth (1/40) undivided beneficial interest in one (1) Series E Senior Debenture due 2045 (“Series E Debt Security” and the Series C Debt Security, Series D Debt Security and Series E Debt Security, collectively, the “Debt Securities”) having a principal amount of one thousand dollars ($1,000); and | ||
| (iv) | one stock purchase contract (“Series E Stock Purchase Contract” and the Series C Stock Purchase Contract, Series D Stock Purchase Contract and the Series E Stock Purchase Contract, collectively, the “Stock Purchase Contracts”) under which the holder must purchase and the Company must sell on October 8, 2014 (or such later date as determined pursuant to the Stock Purchase Contract Agreement) (the “Third Stock Purchase Date” and the First Stock Purchase Date, the Second Stock Purchase Date and the Third Stock Purchase Date, each a “Stock Purchase Date”) for a price of $25.00 per security a number of shares of the Common Stock determined pursuant to the terms of the Series E Stock Purchase Contract. |
The shares of Common Stock issuable under the Stock Purchase Contracts are collectively
referred to herein as the “Issuable Common Stock.”
The Securities were initially issued in a private placement to the Selling Securityholder as
part of the consideration paid by the Company to the Selling Securityholder in connection with the
Company’s acquisition of American Life Insurance Company from the Selling Securityholder and AIG
(the “Acquisition”) pursuant to the Stock Purchase Agreement, dated as of March 7, 2010, as
amended (the “Stock Purchase Agreement”), among the Company, the Selling Securityholder and
AIG. The Acquisition was completed on November 1, 2010.
The ownership interest in the Debt Securities has been pledged to secure the obligation to
purchase Common Stock on each Stock Purchase Date pursuant to the Stock
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Purchase Contracts. The terms and conditions of such pledge are set forth in the Pledge
Agreement, dated as of November 1, 2010 (the “Pledge Agreement”), among the Company,
Deutsche Bank Trust Company Americas, as collateral agent (the “Collateral Agent”),
custodial agent (the “Custodial Agent”) and securities intermediary (the “Securities
Intermediary”), and Deutsche Bank Trust Company Americas, as stock purchase contract agent (the
“Stock Purchase Contract Agent”).
In addition, the Selling Securityholder has pledged the Securities to secure its obligations
under the indemnification provisions of the Stock Purchase Agreement. The terms and conditions of
such security interest are set forth in the Indemnification Collateral Account Security and Control
Agreement, dated as of November 1, 2010 (the “Indemnification Collateral Agreement”), among
the Company, the Selling Securityholder, AIG, Deutsche Bank Trust Company Americas, as securities
intermediary and pledge collateral agent, and the Stock Purchase Contract Agent. Such security
interest ranks pari passu with the security interest created under the Pledge Agreement.
The Stock Purchase Contracts were issued pursuant to the Stock Purchase Contract Agreement,
dated as of November 1, 2010 (the “Stock Purchase Contract Agreement”), between the Company
and the Stock Purchase Contract Agent.
The Series C Debt Securities were issued pursuant to the Indenture, dated as of November 9,
2001 (the “Base Indenture”), between the Company and Bank One Trust Company, N.A.
(predecessor to The Bank of New York Mellon Trust Company, National Association), supplemented by
the Twentieth Supplemental Indenture, dated as of November 1, 2010 (the “Series C Supplemental
Indenture” and, together with the Base Indenture and any other amendments or supplements
thereto, the “Series C Indenture”), between the Company and The Bank of New York Mellon
Trust Company, National Association, as trustee (the “Trustee”). The Series D Debt
Securities were issued pursuant to the Base Indenture, supplemented by the Twenty-First
Supplemental Indenture, dated as of November 1, 2010 (the “Series D Supplemental Indenture”
and, together with the Base Indenture and any other amendments or supplements thereto, the
“Series D Indenture”), between the Company and the Trustee. The Series E Debt Securities
were issued pursuant to the Base Indenture, supplemented by the Twenty-Second Supplemental
Indenture, dated as of November 1, 2010 (the “Series E Supplemental Indenture” and,
together with the Base Indenture and any other amendments or supplements thereto, the “Series E
Indenture”), between the Company and the Trustee. The Series C Indenture, the Series D
Indenture and the Series E Indenture are referred to herein, collectively, as the
“Indentures.”
Pursuant to separate remarketing agreements (each, a “Remarketing Agreement”) to be
entered into among the Company, the Stock Purchase Contract Agent and a financial institution to be
selected by the Company to act as a reset agent and a
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remarketing agent (together, the “Remarketing Agent”), each series of Debt Securities
will be remarketed, subject to certain terms and conditions.
The “Component Securities” means, collectively, the Stock Purchase Contracts, the Debt
Securities and the Issuable Common Stock.
The terms and rights of the Securities (including the Component Securities) are as specified
in (i) the Indentures, (ii) the Stock Purchase Contract Agreement and (iii) the Pledge Agreement
(each document listed in clauses (i) through (iii), a “Securities Agreement”).
Particular sales of Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the Underwriters of such Securities
in the Pricing Agreement relating thereto will act as representatives (the
“Representatives”). The term “Representatives” also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm being designated as
their representative. This Underwriting Agreement shall not be construed as an obligation of the
Selling Securityholder to sell any of the Securities or as an obligation of any of the Underwriters
to purchase any of the Securities. The obligation of the Selling Securityholder to sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Securities specified therein.
Each Pricing Agreement shall specify the total number of Securities to be purchased from the
Selling Securityholder, the initial public offering price of such Securities, the purchase price to
the Underwriters of such Securities, the names of the Underwriters of such Securities, the names of
the Representatives of such Underwriters and the number of Securities to be purchased by each
Underwriter. In addition, such Pricing Agreement shall set forth the date, time and manner of
delivery of such Securities and payment therefor. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
1. Representations and Warranties of the Company. The Company represents and warrants
to the Underwriters, and agrees with each of the Underwriters that, unless otherwise specified, as
of the date hereof, as of the Applicable Time (as defined below) and as of the Closing Date (as
defined below), as follows:
(a) The Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-170876) under the
Securities Act of 1933, as amended (the “Act”), which has become effective, for the
registration under the Act of the Securities (including the Component
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Securities). The Company meets the requirements for use of Form S-3 under the Act.
The Company proposes to file with the Commission pursuant to Rule 424 under the Act a
supplement or supplements to the form of prospectus included in such registration statement
relating to the Securities and the plan of distribution thereof. Such registration
statement, including the exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the “Registration Statement”; the Registration Statement at the
time it originally became effective is herein called the “Original Registration
Statement”; such prospectus in the form in which it appears in the Original
Registration Statement is hereinafter called the “Base Prospectus”; and such
supplemented form of prospectus, in the form in which it shall first be filed with the
Commission pursuant to Rule 424 (including the Base Prospectus as so supplemented), is
hereinafter called the “Final Prospectus.” Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424 is hereinafter called a
“Preliminary Prospectus.” Any reference herein to the Registration Statement, the
Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus (as defined below) 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”), on or before the date of
this Agreement, or the issue date of the Base Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Final Prospectus, as the case may be; and any reference herein to
the terms “amend,” “amendment” or “supplement” with respect 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 any document filed under the Exchange
Act after the date of this Agreement, or the issue date of the Base Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference; each Preliminary Prospectus, the Pricing
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 under the Act,
complied when so filed in all material respects with the Act and the rules thereunder and
each Preliminary Prospectus, the Pricing Prospectus and the Final Prospectus delivered to
the Representatives 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.
| (b)(i) The Registration Statement, as amended as of any such time, and the Final Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act, the Exchange Act and the respective rules thereunder; |
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(ii) (A) The Registration Statement does not and will not, as of the
applicable effective date as to each part of the Registration Statement, contain
any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading and (B) the Final Prospectus does not and will not, as of its date and
as of its filing date, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that for each of (A) and (B), the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the trustee’s Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”), or (ii) the information
contained in or omitted from the Registration Statement or the Final Prospectus in
reliance upon and in conformity with information relating to any Underwriter, AIG
or the Selling Securityholder furnished in writing to the Company by such
Underwriter, AIG or the Selling Securityholder, as applicable, expressly for use in
the Registration Statement and the Final Prospectus;
(iii) As of the Applicable Time, the Issuer Free Writing Prospectus(es) (as
defined below) listed on Schedule 1 hereto, if any, the Pricing Prospectus (as
defined below), and the public offering price per common equity unit of $82.88, all
considered together (collectively, the “Disclosure Package”), will 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 the Company makes no representations or warranties as to the
information contained in or omitted from the Disclosure Package in reliance upon
and in conformity with information relating to any Underwriter, AIG or the Selling
Securityholder furnished in writing to the Company by such Underwriter, AIG or the
Selling Securityholder, as applicable, expressly for use in the Disclosure Package;
and
(iv) As of the Applicable Time, each Issuer Free Writing Prospectus listed on
Schedule 1 hereto, if any, and Schedule 2 hereto will not conflict with the
information contained or incorporated by reference in the Registration Statement or
the Disclosure Package, and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Disclosure Package and any other such
Issuer Free Writing Prospectus, in each case as of the Applicable Time, will not
include any untrue statement
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of a material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, it is understood and agreed that in no
event shall any such Issuer Free Writing Prospectus, including but not limited to
any electronic roadshow, be listed on Schedule 1 and Schedule 2 hereto unless the
Company (i) has consented to the use thereof and (ii) shall have approved its
contents before any such use, in each case in accordance with the provisions of
this Agreement.
| As used in this subsection and elsewhere in this Underwriting Agreement: |
“Applicable Time” means 6:00 p.m. (Eastern Time) on March 2, 2011 or such
other time as agreed by the Company and the Representatives and stated in the applicable
Pricing Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,”
as defined in Rule 433 under the Act (“Rule 433”), relating to the Securities.
“Pricing Prospectus” means the Base Prospectus, as amended or supplemented
(including by any Preliminary Prospectus) immediately prior to the Applicable Time.
(c) At the time the Company or another offering participant first made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company
was not an “ineligible issuer” as defined in Rule 405 under the Act.
(d) (i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the 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),
(iii) at the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) of the Act) relied on the exemption of Rule
163 of the Act and (iv) as of the date of this Agreement, the Company was and is a
“well known seasoned issuer” as defined in Rule 405 of the Act. The Registration Statement
is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities
Act, that automatically became effective not more than three years prior to the date
hereof; the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Act objecting to use of the automatic shelf registration statement and the
Company has not otherwise ceased to be eligible to use the automatic shelf registration
statement. The Company has paid or shall pay the required Commission filing fees relating
to the Securities within the time required
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by Rule 456(b)(1) under the Act and otherwise in accordance with Rules 456(b) and 457(r) under
the Act.
(e) Each document incorporated or deemed to be incorporated by reference in the
Registration Statement, the Disclosure Package and the Final Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the Act or the Exchange Act, as applicable.
(f) Neither the Company nor any Significant Subsidiary (as defined below) of the
Company has sustained since the date of the latest audited financial statements included or
incorporated by reference in the Disclosure Package any loss or interference material to
the business of the Company and its subsidiaries considered as a whole, other than as
described in or contemplated by the Disclosure Package, 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; and, since the respective dates as of which
information is given in the Disclosure Package, other than as described or contemplated in
the Disclosure Package, there has not been any (i) material addition, or
development involving a prospective material addition, to the liability of any Significant
Subsidiary for future policy benefits, policyholder account balances and other claims,
other than in the ordinary course of business, (ii) material decrease in the
surplus of any Significant Subsidiary or material change in the capital stock or other
ownership interests (other than issuances of common stock upon the exercise of outstanding
employee stock options or pursuant to existing employee compensation plans or on the
conversion or exchange of convertible or exchangeable securities outstanding on the date of
the applicable Pricing Agreement) of the Company or any Significant Subsidiary or any
material increase in the long-term debt of the Company or its subsidiaries, considered as a
whole, or (iii) material adverse change, or development involving a prospective
material adverse change, in or affecting the business, financial position, reserves,
surplus, equity or results of operations (in each case considered either on a statutory
accounting or U.S. generally accepted accounting principles (“GAAP”) basis, as
applicable) of the Company and its subsidiaries considered as a whole. As of December 31,
2010, the subsidiaries of the Company that would qualify as a “Significant Subsidiary” of
the Company under Regulation S-X were Metropolitan Life Insurance Company (“MLIC”),
MetLife Insurance Company of Connecticut, MetLife Investors USA Insurance Company, MetLife
Reinsurance Company of Charleston, Exeter Reassurance Company, Ltd., One Madison
Investments (Cayco) Limited and American Life Insurance Company. For purposes of this
Agreement, the term “Significant Subsidiary” shall mean each of the subsidiaries listed in
the preceding sentence other than One Madison Investments (Cayco) Limited.
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(g) The Company and each Significant Subsidiary has good and marketable title in fee
simple to all material real property and good and marketable title to all material personal
property owned by it, in each case free and clear of all liens, encumbrances and defects,
except such as are described in the Disclosure Package or such as would not have a material
adverse effect on the business, financial position, equity, reserves, surplus or results of
operations of the Company and its subsidiaries, considered as a whole (“Material
Adverse Effect”), and do not materially interfere with the use made and proposed to be
made of such property by the Company or any Significant Subsidiary, and any material real
property and material buildings held under lease by the Company or any of its subsidiaries
are held under valid, subsisting and enforceable leases with such exceptions that do not
materially interfere with the use made and currently proposed to be made of such property
and buildings by the Company or any Significant Subsidiary.
(h) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Disclosure
Package and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which its
ownership or lease of property or the conduct of its business requires such qualification
and good standing, except to the extent that the failure to be so qualified and in good
standing would not have a Material Adverse Effect; MLIC was duly converted from a mutual
life insurance company to a stock life insurance company on April 7, 2000 in accordance
with the Plan of Reorganization of MLIC under Section 7312 of the New York Insurance Law;
each Significant Subsidiary is validly existing as a corporation and is in good standing
under the laws of its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Disclosure
Package; and each Significant Subsidiary is duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other jurisdiction
in which its ownership or lease of property or the conduct of its business requires such
qualification and good standing, except to the extent that the failure to be so qualified
and in good standing would not have a Material Adverse Effect.
(i) The Company has the corporate power and authority to execute and deliver this
Agreement and the applicable Pricing Agreement; had the corporate power and authority to
execute and deliver the Securities, each of the Component Securities and each of the
Securities Agreements, at the time of the execution and delivery thereof; and has the
corporate power and authority to consummate the transactions contemplated hereby and
thereby.
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(j) The Company has an authorized capitalization as set forth and described in the
Disclosure Package, and all of the issued shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable; none of the
outstanding shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the Company; except as
disclosed in the Disclosure Package, there are no outstanding options or warrants to
purchase, or any preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into or any contracts or commitments to sell shares
of the Company’s capital stock or any such options, rights, warrants, convertible
securities or obligations; the description of the Company’s stock option plans and the
options or other rights granted and exercised thereunder set forth in the Disclosure
Package accurately and fairly describe the information required to be shown with respect to
such plans, arrangements, options and rights; except as disclosed in the Disclosure
Package, including the Selling Securityholder’s registration rights under the Investor
Rights Agreement, dated as of November 1, 2010 (the “Investor Rights Agreement”),
among the Company, the Selling Securityholder and AIG, as amended by the Coordination
Agreement, dated as of March 1, 2011 (the “Coordination Agreement”), among the
Company, the Selling Securityholder and AIG, there are no rights of any person, corporation
or other entity to require registration of any shares of common stock or any other
securities of the Company in connection with the filing of the Registration Statement and
the sale of the Securities (including the Component Securities) by the Selling
Securityholder to the Underwriters pursuant to this Agreement and the applicable Pricing
Agreements; all of the issued shares of capital stock or other ownership interests of MLIC
have been duly and validly authorized and issued, are fully paid and nonassessable and are
owned directly or indirectly by the Company free and clear of all liens, encumbrances,
equities or claims.
(k) The maximum number of shares of the Issuable Common Stock have been duly and
validly authorized and reserved for issuance and, when issued and delivered in accordance
with the provisions of the Stock Purchase Contracts, the Stock Purchase Contract Agreement
and the Pledge Agreement, will be duly and validly issued, fully paid and nonassessable,
and will conform to the description of the Issuable Common Stock contained in the
Disclosure Package and the Final Prospectus and such description conforms to the rights set
forth in the instruments defining the same; the issuance of the Issuable Common Stock will
not be subject to any preemptive or other similar rights.
(l) The Securities have been duly authorized, duly executed, authenticated, issued and
delivered and constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject, as to enforcement, bankruptcy,
insolvency, fraudulent
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transfer, moratorium and other similar laws relating to or affecting creditors’ rights
generally and to general principles of equity; the Securities conform in all material
respects to the descriptions thereof contained in the Disclosure Package and the Final
Prospectus and such description conforms to the rights set forth in the instruments
defining the same; and the issuance of the Securities is not subject to preemptive or other
similar rights.
(m) The Stock Purchase Contract Agreement has been duly authorized, validly executed
and delivered by the Company and, assuming due authorization, execution and delivery of the
Stock Purchase Contract by the Stock Purchase Contract Agent, constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance with its
terms, subject, as to enforcement, bankruptcy, insolvency, fraudulent transfer, moratorium
and other similar laws relating to or affecting creditors’ rights generally and by general
principles of equity; and the Stock Purchase Contract Agreement conforms in all material
respects to the description thereof contained in the Disclosure Package and the Final
Prospectus.
(n) The Stock Purchase Contracts underlying the Securities have been duly authorized
by the Company; the Stock Purchase Contracts have been duly and validly issued and
delivered and constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject, as to enforcement, bankruptcy,
insolvency, fraudulent transfer, moratorium and other similar laws relating to or affecting
creditors’ rights generally and by general principles of equity; the Stock Purchase
Contracts conform in all material respects to the description thereof contained in the
Disclosure Package and the Final Prospectus and such description conforms to the rights set
forth in the instruments defining the same.
(o) The Remarketing Agreements have been duly authorized by the Company and, at the
date of each respective Remarketing Agreement, will have been duly executed and delivered
by the Company.
(p) The Pledge Agreement has been duly authorized, validly executed and delivered by
the Company and, assuming due authorization, execution and delivery of the Pledge Agreement
by the Collateral Agent and the Stock Purchase Contract Agent, constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance with its
terms, subject, as to enforcement, bankruptcy, insolvency, fraudulent transfer, moratorium
and other similar laws relating to or affecting creditors’ rights generally and by general
principles of equity; and the Pledge Agreement conforms in all material respects to the
description thereof contained in the Disclosure Package and the Final Prospectus.
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(q) The Pledge Agreement has created, as collateral security for the performance when
due by the holders under the respective Stock Purchase Contracts, a security interest (as
that term is defined in Section 1-201(37) of the Uniform Commercial Code, as adopted and in
effect in the State of New York (the “UCC”)) in favor of the Collateral Agent for
the benefit of the Company, in the right, title and interest of such holders in the
securities and other assets and interests pledged to the Collateral Agent pursuant to the
Pledge Agreement.
(r) The Indentures have been duly authorized, validly executed and delivered by the
Company and, assuming due execution and delivery by the Trustee, each of the Indentures
constitutes a valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms, subject, as to enforcement, bankruptcy, insolvency,
fraudulent transfer, moratorium and other similar laws relating to or affecting creditors’
rights generally and by general principles of equity; and the Indentures conform in all
material respects with the description thereof contained in the Disclosure Package and
Final Prospectus.
(s) The Indentures have been qualified under the Trust Indenture Act.
(t) The Debt Securities have been duly authorized, duly executed and delivered by the
Company and, assuming authentication in the manner provided for in the applicable Indenture
by the Trustee, constitute valid and binding obligations of the Company enforceable against
the Company in accordance with their terms, subject, as to enforcement, bankruptcy,
insolvency, fraudulent transfer, moratorium and other similar laws relating to or affecting
creditors’ rights generally and by general principles of equity; and are in the form
contemplated by, and entitled to the benefits of, the applicable Indenture; and the Debt
Securities conform in all material respects to the description thereof contained in the
Disclosure Package and Final Prospectus.
(u) As of the Closing Date, the Securities and the Issuable Common Stock reserved for
listing upon issuance following settlement of the Stock Purchase Contract will have been
approved for listing on the New York Stock Exchange (the “Exchange”), subject to
notice of issuance; and (i) as of the Closing Date, the Securities, and (ii) as of each
Stock Purchase Date, the applicable shares of the Issuable Common Stock, will be listed on
the Exchange.
(v) Each Significant Subsidiary that is required to be organized or licensed as an
insurance company in its jurisdiction of incorporation (each, an “Insurance
Subsidiary” and collectively, the “Insurance Subsidiaries”) is licensed as an
insurance company in its respective jurisdiction of incorporation and is duly licensed or
authorized as an insurer in each other jurisdiction where it is required to be so licensed
or authorized to conduct its business, in each case with such
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exceptions as would not have, individually or in the aggregate, a Material Adverse
Effect; except as otherwise described in the Disclosure Package, each Insurance Subsidiary
has all other approvals, orders, consents, authorizations, licenses, certificates, permits,
registrations and qualifications (collectively, the “Approvals”) of and from all
insurance regulatory authorities to conduct its business, with such exceptions as would not
have, individually or in the aggregate, a Material Adverse Effect; there is no pending or,
to the knowledge of the Company, threatened action, suit, proceeding or investigation that
could reasonably be expected to lead to any revocation, termination or suspension of any
such Approval, the revocation, termination or suspension of which would have, individually
or in the aggregate, a Material Adverse Effect; and, to the knowledge of the Company, no
insurance regulatory agency or body has issued any order or decree impairing, restricting
or prohibiting the payment of dividends by any Insurance Subsidiary to its parent which
would have, individually or in the aggregate, a Material Adverse Effect.
(w) The Company and each Significant Subsidiary has all necessary Approvals of and
from, and has made all filings, registrations and declarations (collectively, the
“Filings”) with, all insurance regulatory authorities, all Federal, state, local
and other governmental authorities, all self-regulatory organizations and all courts and
other tribunals, which are necessary to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Disclosure Package,
except where the failure to have such Approvals or to make such Filings would not have,
individually or in the aggregate, a Material Adverse Effect; to the knowledge of the
Company, the Company and each Significant Subsidiary is in compliance with all applicable
laws, rules, regulations, orders, by-laws and similar requirements, including in connection
with registrations or memberships in self-regulatory organizations, and all such Approvals
and Filings are in full force and effect and neither the Company nor any Significant
Subsidiary has received any notice of any event, inquiry, investigation or proceeding that
would reasonably be expected to result in the suspension, revocation or limitation of any
such Approval or otherwise impose any limitation on the conduct of the business of the
Company or any Significant Subsidiary, except as described in the Disclosure Package or
except for any such non-compliance, suspension, revocation or limitation which would not
have, individually or in the aggregate, a Material Adverse Effect.
(x) Each Insurance Subsidiary is in compliance with and conducts its businesses in
conformity with all applicable insurance laws and regulations of its respective
jurisdiction of incorporation and the insurance laws and regulations of other jurisdictions
which are applicable to it, in each case with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect.
13
(y) Each Significant Subsidiary which is engaged in the business of acting as a
broker-dealer or an investment advisor (respectively, a “Broker-Dealer Subsidiary”
and an “Investment Advisor Subsidiary”) is duly licensed or registered as a
broker-dealer or investment advisor, as the case may be, in each jurisdiction where it is
required to be so licensed or registered to conduct its business, in each case, with such
exceptions as would not have, individually or in the aggregate, a Material Adverse Effect;
each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary has all other
necessary Approvals of and from all applicable regulatory authorities, including any
self-regulatory organization, to conduct its businesses, in each case with such exceptions
as would not have, individually or in the aggregate, a Material Adverse Effect; except as
otherwise described in the Disclosure Package, none of the Broker-Dealer Subsidiaries or
Investment Advisor Subsidiaries has received any notification from any applicable
regulatory authority to the effect that any additional Approvals from such regulatory
authority are needed to be obtained by such subsidiary in any case where it could be
reasonably expected that (x) any of the Broker-Dealer Subsidiaries or Investment
Advisor Subsidiaries would in fact be required either to obtain any such additional
Approvals or cease or otherwise limit engaging in a certain business and (y) the
failure to have such Approvals or limiting such business would have a Material Adverse
Effect; and each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary is in
compliance with the requirements of the broker-dealer and investment advisor laws and
regulations of each jurisdiction which are applicable to such subsidiary, and has filed all
notices, reports, documents or other information required to be filed thereunder, in each
case with such exceptions as would not have, individually or in the aggregate, a Material
Adverse Effect.
(z) The issue and sale of the Securities and the Component Securities by the Company,
the sale of the Securities by the Selling Securityholder, the entry into and compliance by
the Company with all of the provisions of the Securities, the Component Securities,
Securities Agreements, this Agreement and any Pricing Agreement, and the consummation of
the transactions herein and therein contemplated, did not, do not or will not, as the case
may be, conflict with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement,
or other agreement or instrument to which the Company or any Significant Subsidiary is a
party or by which the Company or any Significant Subsidiary is bound or to which any of the
property or assets of the Company or any Significant Subsidiary is subject, or which
affects the validity, performance or consummation of the transactions contemplated by this
Agreement, any Pricing Agreement, the Securities, the Component Securities or any
Securities Agreement, nor did or will, as the case may be, such action result in any
violation of any statute or any order, rule or regulation of any court or insurance
regulatory authority or other
14
governmental agency or body having jurisdiction over the Company or any Significant
Subsidiary or any of their properties, in each case other than such breaches, conflicts,
violations, or defaults which individually or in the aggregate, would not have a Material
Adverse Effect and would not adversely affect the validity or performance of the Company’s
obligations under the Securities, the Component Securities, any Securities Agreement, this
Agreement and any Pricing Agreement; nor did or will such action result in any violation of
the provisions of the certificate of incorporation or by-laws or other charter documents of
the Company or any Significant Subsidiary; and no Approval of or Filing with any such court
or insurance regulatory authority or other governmental agency or body was required for the
issue and sale by the Company, or is required for the sale by the Selling Securityholder,
of the Securities (including the Component Securities), except, assuming the accuracy of
the Underwriters’ representation in Section 10 of this Agreement, (i) the
registration under the Act of the Securities (including the Component Securities) which
registration has become effective and (ii) such Approvals or Filings as may be
required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(aa) Other than as set forth in the Disclosure Package, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or to which any property of the Company or any of its subsidiaries is subject, challenging
the transactions contemplated by this Agreement and the applicable Pricing Agreements or
which, if determined adversely to the Company or its subsidiaries, could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or would
materially and adversely affect the ability of the Company to perform its obligations under
this Agreement; and, to the knowledge of the Company, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others other than as set forth in
the Disclosure Package.
(bb) Neither the Company nor any Significant Subsidiary is in violation of any of its
certificate of incorporation or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which it is a party or
by which it is bound or to which any of its property or assets is subject, which violation
or default would have, individually or in the aggregate, a Material Adverse Effect.
(cc) The statements set forth in the Disclosure Package and the Final Prospectus under
the captions “Description of the Common Equity Units,” “Description of the Stock Purchase
Contracts,” “Certain Provisions of the Stock Purchase Contracts, the Stock Purchase
Contract Agreement and the Pledge
15
Agreement,” “Description of the Debentures,” insofar as they purport to constitute a
summary of the terms of the Securities and the Component Securities, fairly summarize such
terms in all material respects. The discussion set forth in the Disclosure Package and the
Final Prospectus under the caption “Certain United States Federal Income Tax
Considerations,” fairly summarizes in all material respects (subject to the limitations and
qualifications set forth therein) the material United States federal income tax
consequences of the acquisition, ownership and disposition of the Securities.
(dd) The financial statements of the Company and its consolidated subsidiaries
included or incorporated by reference in the Disclosure Package, together with the related
schedules and notes, comply in all material respects with the requirements of the Act and
the Exchange Act, as applicable, and present fairly in all material respects the financial
position, the results of operations and the changes in cash flows of such entities in
conformity with GAAP at the respective dates or for the respective periods to which they
apply; and such financial statements and related notes and schedules, if any, have been
prepared in accordance with GAAP consistently applied throughout the periods involved; and
the unaudited pro forma condensed combined financial statements and the related notes
thereto included or incorporated by reference in the Registration Statement, the Final
Prospectus and any Preliminary Prospectus have been prepared in all material respects in
accordance with the applicable requirements of Rule 11-02 of Regulation S-X promulgated
under the Exchange Act, have been compiled on the pro forma bases described therein, and
the assumptions used in the preparation thereof were reasonable at the time made, and the
adjustments used therein are based upon good faith estimates and assumptions believed by
the Company to be reasonable at the time made.
(ee) Deloitte & Touche LLP, which has audited certain consolidated financial
statements of the Company and its subsidiaries, is an Independent Registered Public
Accounting Firm as required by the Act and the rules and regulations of the Commission
thereunder.
(ff) Neither the Company nor any Significant Subsidiary is, or after giving effect to
the issue and sale of the Securities pursuant to any Pricing Agreement will be, an
“investment company,” as such term is defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”), and the rules and regulations thereunder,
although certain separate accounts of MLIC and of certain Insurance Subsidiaries are
required to register as investment companies under the Investment Company Act.
(gg) This Agreement and the applicable Pricing Agreements with respect to the
applicable Securities have been duly authorized, executed and delivered by the Company.
16
(hh) None of the Company or its subsidiaries or, to the best of their knowledge, any
of their directors, officers or affiliates, has taken or will take, directly or indirectly,
any action designed to, or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Securities in violation of Regulation M
under the Exchange Act.
(ii) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles. As disclosed in the Company’s Annual Report on Form 10-K for the year ended
December 31, 2010, the Company’s internal control over financial reporting was effective as
of December 31, 2010 and the Company is not aware of any material weaknesses in its
internal control over financial reporting.
(jj) The Company and its consolidated subsidiaries employ disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) 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. As disclosed in the Company’s Annual Report on Form
10-K for the year ended December 31, 2010, the Company’s disclosure controls and procedures
were effective as of December 31, 2010 and the Company is not aware of any material
weaknesses in its disclosure controls and procedures.
(kk) No stop order suspending the effectiveness of the Registration Statement has been
issued under the Act and the Registration Statement is not the subject of a pending
proceeding or examination under Section 8(d) or 8(e) of the Act, the Company is not the
subject of a pending proceedings under Section 8A of the Act in connection with the
offering of the Securities and any request on the part of the Commission for additional
information has been complied with.
(ll) Except as would not individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect: (1) all tax returns required to be filed by the
Company or any of its subsidiaries have been timely filed, (2) (x) all
taxes (whether imposed directly or through withholding) including any interest, fine, sales
and use taxes, all taxes which the Company and each of its subsidiaries is
17
obligated to withhold from amounts owing to employees, creditors and third parties
with respect to the period covered by such tax returns, additions to tax, or penalties
applicable thereto due or claimed to be due from such entities have been timely paid, and
(y) no deficiency assessment with respect to a proposed adjustment of the Company
or its subsidiaries’ federal, state, local or foreign taxes is pending or, to the best of
the Company or its subsidiaries’ knowledge, threatened, in each case of (x) and (y), other
than such taxes or adjustments that are being contested in good faith or for which adequate
reserves have been provided, and (3) to the Company and its subsidiaries’
knowledge, there is no tax lien, whether imposed by any federal, state, foreign or other
taxing authority, outstanding against the assets, properties or business of the Company or
its subsidiaries.
(mm) A registration statement with respect to the Securities has been filed on Form
8-A pursuant to Section 12 of the Exchange Act, which registration statement complies in
all material respects with the applicable requirements of the Exchange Act.
(nn) The Company has duly authorized, executed and delivered the Coordination Agreement, which
provides, inter alia, that (i) subject to the terms and conditions of the
Coordination Agreement, the Selling Securityholder is entitled to offer, sell and deliver
the Securities in accordance with this Agreement and the applicable Pricing Agreement,
(ii) the security interest in the Securities under the Indemnification Collateral
Agreement will be released, discharged and terminated in accordance with the terms of the
Amended Indemnification Collateral Agreement (as defined below) and the Indemnification
Collateral Substitution Instruction (as defined below) and (iii) when delivered to
the Underwriters, the Securities will be free and clear of all liens, encumbrances,
security interests, equities, charges or claims in favor of the Company, in the form
previously delivered to the Representatives.
(oo) The Amended and Restated Indemnification
Collateral Account Security and Control Agreement, to be dated as of the Closing Date (the
“Amended Indemnification Collateral Agreement”), among the Company, the Selling
Securityholder, AIG, Deutsche Bank Trust Company Americas, as securities intermediary and
pledge collateral agent, and the Stock Purchase Contract Agent, in the form previously
delivered to the Representatives, has been duly authorized by the Company and, at or prior to the Closing Date, will be duly executed and delivered by the Company.
(pp) The Company has duly authorized, executed and delivered the Indemnification Collateral
Substitution Instruction, Waiver and Acknowledgement, dated as of March 2, 2011 (the
“Indemnification Collateral Substitution Instruction”), among the Company, the
Selling Securityholder, AIG, Deutsche Bank Trust Company
18
Americas, as securities intermediary and pledge collateral agent, and the Stock
Purchase Contract Agent, in the form previously delivered to the Representatives.
2. Representations and Warranties of AIG and the Selling Securityholder. AIG and the
Selling Securityholder represent and warrant, jointly and severally, to the Underwriters, and agree
with each of the Underwriters that, unless otherwise specified, as of the date hereof, as of the
Applicable Time and as of the Closing Date, as follows:
(a) This Agreement and the applicable Pricing Agreement have each been duly
authorized, executed and delivered by each of AIG and the Selling Securityholder.
(b) All consents, approvals, authorizations and orders necessary for the execution and
delivery by each of AIG and the Selling Securityholder of this Agreement and the applicable
Pricing Agreement, the sale and delivery of the Securities to be sold by the Selling
Securityholder and the consummation by AIG and the Selling Securityholder of the
transactions contemplated hereby and under the applicable Pricing Agreement in connection
with the sale of the Securities to be sold by the Selling Securityholder, have been
obtained or made, except such as may be required under the Act, or state securities laws as
to which AIG and the Selling Securityholder make no representation; and each of AIG and the
Selling Securityholder has full right, power and authority to enter into this Agreement and
the applicable Pricing Agreement and to sell, assign, transfer and deliver the Securities
to be sold by the Selling Securityholder hereunder, except in each such case, with such
exceptions as would not, individually and in the aggregate, adversely affect the Selling
Securityholder’s ability to consummate the transactions contemplated herein.
(c) The sale of the Securities to be sold by the Selling Securityholder hereunder, the
execution and delivery by each of AIG and the Selling Securityholder of this Agreement and
the applicable Pricing Agreement, the compliance by each of AIG and the Selling
Securityholder with all of the provisions of this Agreement and the applicable Pricing
Agreement and the consummation by AIG and the Selling Securityholder of the transactions
herein and therein contemplated will not conflict with, or result in a breach or violation
of, any of the terms or provisions of, or constitute a default under, (A) any
indenture, mortgage, deed of trust, loan agreement, or other agreement or instrument to
which AIG or the Selling Securityholder is a party or by which AIG or the Selling
Securityholder is bound or to which any of the property or assets of AIG or the Selling
Securityholder is subject, (B) the certificate of incorporation or by-laws of AIG,
(C) the certificate of formation or limited liability company agreement of the
Selling Securityholder or (D) any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over AIG or the Selling
Securityholder or the property of AIG or the Selling
19
Securityholder, except, in the case of (A) and (D), with such exceptions as would not,
individually and in the aggregate, adversely affect the Selling Securityholder’s ability to
consummate the transactions contemplated herein; provided that no representation or
warranty is made in this clause (c) with respect to the antifraud provisions of federal and
state securities laws.
(d) The Selling Securityholder owns the Securities to be sold by the Selling
Securityholder hereunder, free and clear of all liens, encumbrances, security interests,
equities, charges or claims, except for the pledge of such Securities under the
Indemnification Collateral Agreement. Upon transfer of the Securities to be sold by the
Selling Securityholder hereunder, such Securities will be transferred to the Underwriters
free and clear of all liens, encumbrances, security interests, equities, charges or claims.
Upon payment for the Securities to be sold by the Selling Securityholder pursuant to this
Agreement and the Pricing Agreement, delivery of such Securities, as directed by the
Underwriters, to Cede & Co. or such other nominee as may be designated by The Depository
Trust Company (“DTC”), registration of such Securities in the name of Cede & Co. or
such other nominee and the crediting of such Securities on the books of DTC to securities
accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice
of any adverse claim within the meaning of Section 8-105 of the UCC, to such Securities),
then, assuming appropriate entries to the accounts of the several Underwriters on the
records of DTC have been made pursuant to the UCC, (A) under Section 8-501 of the UCC, the
Underwriters will acquire a security entitlement (within the meaning of Part 5 of Article 8
of the UCC) in respect of such Securities, and (B) no action based on any “adverse claim”
(within the meaning of Section 8-102 of the UCC) to such Securities may be asserted against
the Underwriters with respect to such security entitlement.
(e) For the period specified below (the “Lock-Up Period”), the Selling
Securityholder and AIG will not, directly or indirectly, offer, sell, contract to sell or
pledge; grant any option, right or warrant to purchase; enter into any swap, hedge or other
agreement that transfers, in whole or in part, the economic consequences of ownership;
establish or increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act; or otherwise dispose of, any
of the Securities or Common Stock or any securities of the Company that are substantially
similar to the Securities or Common Stock, including any securities that are convertible
into or exchangeable or exercisable for any of the Securities, Common Stock or any such
substantially similar securities (collectively, the “Specified Lock-Up
Securities”); provided that (w) the restrictions in this clause (e)
apply only to Specified Lock-Up Securities directly held by AIG or the Selling
Securityholder, and do not apply to any Specified Lock-Up Securities held by affiliates of
AIG or the Selling Securityholder in connection with ordinary course (I)
proprietary and third party
20
fund and asset management activities, (II) brokerage and securities trading
activities and (III) financial services and insurance activities; (x) the
Selling Securityholder may sell the Securities it holds to the Underwriters pursuant to
this Agreement; (y) the Selling Securityholder may sell 78,239,712 shares of Common
Stock in connection with a concurrent offering of such shares to the underwriters for such
offering; and (z) the Selling Securityholder may sell the Company’s Series B
Contingent Convertible Junior Participating Non-Cumulative Perpetual Preferred Stock (the
“Series B Preferred Stock”) to the Company in accordance with the terms of the
Coordination Agreement. The Lock-Up Period will commence on the date of the Final
Prospectus and continue for 60 days after such date or such earlier date to which ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. consents to in writing.
(f) Each of AIG and the Selling Securityholder has not taken and will not take,
directly or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Securities or the
Common Stock of the Company in violation of Regulation M under the Exchange Act.
(g) To the extent that any statements made in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus, the Final Prospectus, any Issuer Free
Writing Prospectus listed on Schedule 2 hereto or any amendment or supplement thereto or
the Disclosure Package are made in reliance upon and in conformity with written information
furnished to the Company by AIG or the Selling Securityholder expressly for use therein,
(i) such statements made in the Registration Statement, as of the applicable
effective date as to each part of the Registration Statement, did not 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;(ii) such
statements made in any Preliminary Prospectus, the Pricing Prospectus, any Issuer Free
Writing Prospectus listed on Schedule 2 hereto, the Final Prospectus, or amendment or
supplement thereto, did not and will not, as of its date and as of its filing date, contain
any untrue statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they were made,
not misleading, and (iii) such statements made in the Disclosure Package will not,
as of the Applicable Time, contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Each of the Company and the
Underwriters acknowledges and agrees that for all purposes of this Agreement, the only
information furnished to the Company by or on behalf of AIG and the Selling Securityholder
expressly for use in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus listed on Schedule 2
hereto or any amendment or supplement thereto or the Disclosure
21
Package are the statements pertaining to the name of the Selling Securityholder and
the number of Securities owned and the number of Securities proposed to be sold by the
Selling Securityholder under the caption “Selling Securityholder” in any Preliminary
Prospectus, the Pricing Prospectus and the Final Prospectus.
(h) 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 contemplated herein, the Selling Securityholder will deliver to you
prior to or at the Closing Date 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).
(i) Each of AIG and the Selling Securityholder has duly authorized, executed and delivered the
Coordination Agreement, which provides, inter alia, that (i) subject to the terms
and conditions of the Coordination Agreement, the Selling Securityholder is entitled to
offer, sell and deliver the Securities in accordance with this Agreement and the applicable
Pricing Agreement, (ii) the security interest in the Securities under the
Indemnification Collateral Agreement will be released, discharged and terminated in
accordance with the terms of the Amended Indemnification Collateral Agreement and
Indemnification Collateral Substitution Instruction and (iii) when delivered to the
Underwriters, the Securities will be free and clear of all liens, encumbrances, security
interests, equities, charges or claims, in the form previously delivered to the
Representatives.
(j) The Amended Indemnification Collateral Agreement,
in the form previously delivered to the Representatives, has been duly authorized by AIG and the Selling Securityholder and, at or prior to the Closing Date, will be duly executed and
delivered by AIG and the Selling Securityholder.
(k) Each of AIG and the Selling Securityholder has duly executed and delivered the
Indemnification Collateral Substitution Instruction, in the form previously delivered to
the Representatives.
3. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Selling Securityholder agrees as of the date
hereof and as of the Applicable Time, to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, as of the date hereof and as of the Applicable Time, to purchase from
the Selling Securityholder, at the purchase price set forth in Schedule II to the applicable
Pricing Agreement, the number of Securities set forth opposite such Underwriter’s name in Schedule
I to the applicable Pricing Agreement.
4. Delivery and Payment. Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form acceptable to the
22
Representatives, shall be delivered by or on behalf of the Selling Securityholder to the
Representatives for the account of such Underwriter at the office, on the date and at the time
specified in the applicable Pricing Agreement (or such later date not later than five business days
after such specified date as the Representatives shall designate), which date and time may be
postponed by agreement between the Representatives, the Company, AIG and the Selling Securityholder
or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities
being herein called the “Closing Date”). Delivery of the Securities shall be made to the
Underwriters for the respective accounts of the several Underwriters against payment by the several
Representatives of the purchase price thereof by wire transfer of Federal (same-day) funds to the
account specified by the Selling Securityholder or as otherwise set forth in the applicable Pricing
Agreement. The Selling Securityholder shall cause the Securities to be delivered by book-entry
transfer through the facilities of DTC in such manner and in such amounts as the Representatives
shall direct.
5. Company Covenants. The Company agrees with each of the Underwriters of any
Securities:
(a) To prepare the Final Prospectus as amended and supplemented in relation to the
applicable Securities in a form approved by the Representatives and to file timely such
Final Prospectus pursuant to Rule 424(b) under the Act; to make no further amendment or any
supplement to the Registration Statement or Final Prospectus as amended or supplemented
after the Applicable Time and prior to the Closing Date for such Securities unless the
Representatives for such Securities shall have had a reasonable opportunity to review and
comment upon any such amendment or supplement prior to any filing thereof; to advise the
Representatives, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any supplement to the
Final Prospectus or any amended Final Prospectus has been filed and to furnish the
Representatives 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 such Securities and,
during such same period, to advise the Representatives, 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, (ii) the suspension of
the qualification of such Securities (including the Component Securities) for offering or
sale in any jurisdiction or of the initiation or threatening of any proceeding for any such
purpose, or (iii) any request by the Commission for the amending or supplementing
of the Registration Statement or Final Prospectus or for additional information; 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
23
qualification, promptly to use its best efforts to obtain the withdrawal of such
order;
(b) To give the Representatives notice of any filings made pursuant to the Exchange
Act or the regulations of the Commission thereunder within forty-eight hours prior to the
Applicable Time; to give the Representatives notice of its intention to make any such
filing from the Applicable Time to the Closing Date and to furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such proposed filing;
(c) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify such Securities (including the Component Securities) for
offering and sale under the securities laws of such jurisdictions as the Representatives
may reasonably request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for so long as may be necessary to
complete the distribution of such Securities (including the Component Securities), provided
that in connection therewith the Company shall not be required to qualify as a foreign
corporation, to file a general consent to service of process in any jurisdiction or to
subject itself to taxation in respect of doing business in any jurisdiction in which it is
not otherwise subject;
(d) To furnish to the Representatives a copy of each proposed Issuer Free Writing
Prospectus prepared by or on behalf of, used by, or referred to by the Company and not to
use or refer to any proposed Issuer Free Writing Prospectus to which the Representatives
reasonably object; 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 conflicted or would conflict with the information contained in the
Registration Statement, the Disclosure Package, the Final Prospectus or any Preliminary
Prospectus, to promptly notify the Representatives and, if requested by the
Representatives, to promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict; provided, however, that this
covenant shall not apply to any statements or omissions in an Issuer Free Writing
Prospectus made in reliance upon and in conformity with information furnished in writing to
the Company by any Underwriter expressly for use therein;
(e) To furnish the Underwriters with copies of any Issuer Free Writing Prospectus or
the Final Prospectus in such quantities as the Representatives may from time to time
reasonably request, and if, at any time prior to the earlier of (i) the completion
of the initial distribution by each of the Underwriters of the Securities purchased by such
Underwriter under this Agreement and (ii) the expiration of nine months after the
date of the Final Prospectus, any event shall have occurred as a result of which any Issuer
Free Writing Prospectus or the Final Prospectus as then amended or supplemented would
include an untrue statement
24
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 when such
Issuer Free Writing Prospectus or the Final Prospectus were delivered, not misleading, or,
if for any other reason it shall be necessary during such period to amend or supplement any
Issuer Free Writing Prospectus or the Final Prospectus or to file under the Exchange Act
any document incorporated by reference in any Issuer Free Writing Prospectus or the Final
Prospectus in order to comply with the Act or the Exchange Act, (i) to notify the
Representatives and (ii) upon their request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended Issuer Free Writing Prospectus or a
supplement to the Final Prospectus or an amended Final Prospectus, if applicable, which
will correct such statement or omission or effect such compliance; and any Issuer Free
Writing Prospectus and the Final Prospectus and any amendments or supplements thereto
furnished to the Representatives shall be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T;
(f) 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 Act), an earnings statement
of the Company and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations thereunder (including, at the option of the
Company, Rule 158);
(g) During a period of five years from the effective date of the Registration
Statement, to furnish to the Representatives copies of all reports or other communications
(financial or other) furnished to stockholders of the Company, and to furnish to the
Representatives as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities exchange on
which the Securities or any class of securities of the Company is listed (such financial
statements to be on a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally or to the
Commission), provided that reports and financial statements furnished to or filed with the
Commission, and publicly available on ▇▇▇▇▇, or furnished on the Company’s website, shall
be deemed to have been furnished to the Representatives under this Section 5(g);
(h) The Company agrees that, unless it obtains the prior consent of the
Representatives, and each Underwriter represents and agrees that, unless it obtains the
prior consent of the Company and the Representatives, it has not made and will not make any
offer relating to the Securities that would constitute an Issuer
25
Free Writing Prospectus (other than, for the avoidance of doubt, any Bloomberg L.P. or
other electronic communication regarding any preliminary term sheets). Each Underwriter
agrees, unless it obtains the prior consent of the Company and the Representatives, not to
take any action that would result in the Company being required to file with the Commission
under Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such
Underwriter that otherwise would not be required to be filed by the Company thereunder but
for the action of such Underwriter;
(i) For the Lock-Up Period (as defined in Section 2(e) hereof), the Company will not,
directly or indirectly, take any of the following actions with respect to the Securities or
Common Stock or any securities convertible into or exchangeable or exercisable for any of
the Securities or Common Stock (collectively, the “Lock-Up Securities”):
(i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up
Securities, (ii) offer, sell, issue, contract to sell, or grant any option, right
or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any
other agreement that transfers, in whole or in part, the economic consequences of ownership
of Lock-Up Securities, (iv) establish or increase a put equivalent position or
liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning
of Section 16 of the Exchange Act or (v) file with the Commission a registration
statement under the Act relating to Lock-Up Securities, or publicly disclose the intention
to take any such action, in each case, without the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co., except (1) grants of awards pursuant to the terms of a compensation or
benefit plan for directors, employees or other service providers in effect on the date
hereof (each, a “Benefit Plan”), (2) issuances of Lock-Up Securities (or
vesting of payment in the form thereof) pursuant to a Benefit Plan, (3) acquisition
of Lock-Up Securities by a trust related to a Benefit Plan (a “Benefit Plan
Trust”), or by the Company for purposes of issuing Securities pursuant to the terms of
a Benefit Plan or for purposes of a deposit into a Benefit Plan Trust, and (4)
filing with the Commission of a registration statement under the Act on Form S-8 related to
a Benefit Plan; provided, however, the Company may (i) sell
68,570,000 shares of Common Stock in connection with a concurrent offering of such shares
to the underwriters for such offering, (ii) enter into transactions under which the
Selling Securityholder sells (A) the Securities it holds to the Underwriters
pursuant to this Agreement and (B) 78,239,712 shares of Common Stock in connection
with a concurrent offering of such shares to the underwriters for such offering, and
(iii) issue the applicable number of shares of the Common Stock upon the conversion
of any outstanding shares of the Series B Preferred Stock in accordance with the terms
thereof; and
26
(j) To list and maintain the listing of the Securities and the Issuable Common Stock
reserved for listing upon issuance following settlement of the Stock Purchase Contract on
the Exchange; and
(k) To reserve and keep available at all times, free of preemptive rights, shares of
Common Stock to satisfy the obligations of the Company to issue the Issuable Common Stock
pursuant to the Stock Purchase Contracts.
6. Fees and Expenses. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of counsel and accountants to the Company in connection with the registration of the
Securities (including the Component Securities) under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Final Prospectus and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing this Agreement, any Pricing Agreement, any
Securities Agreement, any Blue Sky Survey and any other documents in connection with the offering,
purchase, sale and delivery of the Securities (including the Component Securities); (iii)
all expenses in connection with the qualification of the Securities (including the Component
Securities) for offering and sale under state securities laws and insurance securities laws as
provided in Section 5(c) hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the Blue Sky Survey;
(iv) all fees and expenses in connection with listing the Securities and the Issuable
Common Stock on the Exchange; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any required review by
the Financial Industry Regulatory Authority, Inc. of the terms of the sale of the Securities
(including the Component Securities); (vi) any fees charged by securities rating services
for rating the Securities, the Debt Securities or the Issuable Common Stock; (vii) the cost
of preparing the Securities and Component Securities; (viii) the fees and expenses of any
transfer agent, the Stock Purchase Contract Agent, Collateral Agent, Custodial Agent, Securities
Intermediary, Remarketing Agent, Trustees and the fees and disbursements of counsel to any of the
foregoing, in connection with the Securities Agreements and the Securities sold and delivered
pursuant to any Securities Agreement; and (ix) all other costs and expenses incident to the
performance of the obligations of the Company hereunder which are not otherwise specifically
provided for in this Section. AIG and the Selling Securityholder covenant and agree, jointly and
severally, with the several Underwriters that AIG or the Selling Securityholder will pay or cause
to be paid the fees and disbursements of counsel for AIG and the Selling Securityholder, all
reasonable costs and expenses of any marketing efforts in connection with any offers of the
Securities, including, without limitation, all reasonable costs and expenses of any “road-shows,”
meetings with prospective purchasers of the Securities, marketing and travel, all underwriting
discounts and commissions and stock transfer taxes applicable to
27
the sale of the Securities and all internal expenses of AIG and the Selling Securityholder.
Except as provided in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees and expenses of counsel for the Underwriters.
The provisions of this Section 6 shall not affect any agreement that the Company, AIG and the
Selling Securityholder may make or have for the sharing of such costs and expenses.
7. Conditions. The obligations of the Underwriters of any Securities under the
Pricing Agreement relating to such Securities shall be subject, in their discretion, to (i)
the condition that all representations and warranties and other statements of the Company herein or
in certificates of any officer of the Company or any subsidiary of the Company delivered pursuant
to the provisions hereof are, at and as of the Closing Date true and correct, the condition that
the Company shall have performed all of its obligations hereunder and under the Pricing Agreement
relating to such Securities to be performed at or before the Closing Date, (ii) the
condition that all representations and warranties and other statements of each of AIG and the
Selling Securityholder herein or in certificates of any officer of AIG or the Selling
Securityholder delivered pursuant to the provisions hereof are, at and as of the Closing Date, true
and correct, the condition that each of the AIG and the Selling Securityholder shall have performed
all of its obligations hereunder and under the Pricing Agreement relating to such Securities to be
performed at or before the Closing Date, and (iii) the following additional conditions.
(a) The Final Prospectus shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(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 Representatives’ reasonable satisfaction;
(b) Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to
the Underwriters such written opinion, dated such Closing Date, with respect to the valid
existence and good standing of the Company, the Registration Statement and the Final
Prospectus, and such other related matters as the Underwriters may reasonably request, and
such counsel shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Counsel-Public Company and Corporate Law, of the Company,
shall have furnished to the Underwriters his written
28
opinion, dated the Closing Date, substantially in the form attached hereto as Annex
II;
(d) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the
Underwriters their written opinions, each dated the Closing Date, substantially in the form
attached hereto as Annex III-A with respect to certain corporate and tax matters, and Annex
III-B with respect to the Registration Statement, Disclosure Package and the Final
Prospectus;
(e) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for AIG and the Selling Securityholder, shall
have furnished to you their written opinion with respect to AIG and the Selling
Securityholder for whom they are acting as counsel, dated the Closing Date, substantially
in the form attached hereto as Annex IV;
(f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, product counsel for the Underwriters, shall
have furnished to the Underwriters such written opinion, dated such Closing Date, with
respect to the validity of the Securities (including the Component Securities) being
delivered on the Closing Date, and such other related matters as the Underwriters may
reasonably request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(g) The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably request;
(h) The Company will furnish the Representatives a certificate of the Chief Accounting
Officer of the Company, dated as of the Closing Date, relating to the unaudited pro forma
condensed combined financial statements and the related notes thereto, together with the
related disclosures included or incorporated by reference in the Disclosure Package and the
Final Prospectus, substantially in the form of Annex V hereto;
(i) (i) On the date hereof, Deloitte & Touche LLP shall have furnished to the
Representatives a letter, dated the date hereof, in form and substance reasonably
satisfactory to you, confirming that they are independent registered public accountants
with respect to the Company and the Company’s subsidiaries within the meaning of the Act
and the Exchange Act and the respective applicable published rules and regulations
thereunder, and further to the effect set forth in Annex VI hereto, and (ii) on the
Closing Date for the applicable Securities, Deloitte & Touche LLP shall have furnished to
the Representatives a letter, dated the date of delivery thereof, in form and substance
reasonably satisfactory to you, that reaffirms the statements made in the letter furnished
pursuant to subclause (i)
29
of this Section 7(i), except that the specified date referred to shall be a date not
more than three business days prior to the Closing Date;
(j) (i) On the date hereof, PricewaterhouseCoopers LLP shall have furnished to
the Representatives a letter, dated the date hereof, in form and substance reasonably
satisfactory to you, confirming that they are independent registered public accountants
with respect to American Life Insurance Company, ALICO Services, Inc. and Delaware American
Life Insurance Company and their subsidiaries within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations thereunder, and
further to the effect set forth in Annex VII hereto, and (ii) on the Closing Date
for the applicable Securities, PricewaterhouseCoopers LLP shall have furnished to the
Representatives a letter, dated the date of delivery thereof, in form and substance
reasonably satisfactory to you, that reaffirms the statements made in the letter furnished
pursuant to subclause (i) of this Section 7(j), except that the specified date referred to
shall be a date not more than three business days prior to the Closing Date;
(k) (i) Neither the Company nor any Significant Subsidiary shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Disclosure Package 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 Disclosure Package, and (ii)
since the respective dates as of which information is given in the Disclosure Package,
there shall not have been any change in the surplus of any Significant Subsidiary or the
capital stock of the Company or any increase in the long-term debt of the Company and its
subsidiaries considered as a whole, or any change, or any development involving a
prospective change, in or affecting the business, financial position, reserves, surplus,
equity or results of operations of the Company and the Significant Subsidiaries considered
as a whole, otherwise than as set forth or contemplated in the Disclosure Package, the
effect of which, in any such case described in clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable or inadvisable to
proceed with the offering or the delivery of the applicable Securities on the terms and in
the manner contemplated in the Final Prospectus;
(l) After the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the debt securities of the Company or any Significant Subsidiary or the
financial strength or claims paying ability of the Company or any Significant Subsidiary by
A.M. Best & Co., Fitch Ratings, Ltd., ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s
Ratings Services, and (ii) no such organization shall have publicly announced that
it has under surveillance or
30
review, with possible negative implications, or shall have given notice of any
intended or potential downgrading of, its rating of any debt security or the financial
strength or the claims paying ability of the Company or any Significant Subsidiary, the
effect of which, in any such case described in clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable or inadvisable to
proceed with the offering or the delivery of the applicable Securities on the terms and in
the manner contemplated in the Final Prospectus;
(m) At or after the Applicable Time, there shall not have occurred any of the
following: (i) a change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in the reasonable
judgment of the Representatives, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the applicable Securities, whether in the primary
market or in respect of dealings in the secondary market; (ii) a suspension or
material limitation in trading in securities generally on the New York Stock Exchange;
(iii) a suspension or material limitation in trading in the Company’s securities on
the New York Stock Exchange; (iv) a suspension or material limitation in clearing
and/or settlement in securities generally; (v) a general moratorium on commercial
banking activities declared by either Federal or New York State authorities; or
(vi) the material outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war or any other
national or international calamity or emergency (including without limitation as a result
of an act of terrorism) if the effect of any such event specified in this clause (vi) in
the judgment of the Representatives makes it impracticable or inadvisable to proceed with
the offering or the delivery of the applicable Securities on the terms and in the manner
contemplated in the Final Prospectus;
(n) The Company shall have complied with any request by the Representatives with
respect to the furnishing of copies of the Final Prospectus in compliance with the
provisions of Section 5(e) hereof;
(o) At the Closing Date, the Representatives shall have received a certificate of the
Company, dated as of the Closing Date, to the effect that (i) the representations
and warranties of the Company contained in Section 1 hereof are true and correct in all
respects with the same force and effect as though expressly made at and as of Closing Date
and (ii) the Company has complied in all respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to the Closing
Date;
(p) At the Closing Date, the Representatives shall have received a certificate or
certificates of AIG and the Selling Securityholder, dated as of the Closing Date, to the
effect that (i) the representations and warranties of AIG and
31
the Selling Securityholder contained in Section 2 hereof are true and correct in all
respects with the same force and effect as though expressly made at and as of Closing Date
and (ii) AIG and the Selling Securityholder have complied in all respects with all
agreements and all conditions on their part to be performed under this Agreement at or
prior to the Closing Date;
(q) As of the date of the Pricing Agreement, the Representatives shall have
received “lock-up agreements,” substantially in the form of Annex VIII hereto, from the
persons listed on Schedule II to the Pricing Agreement;
(r) As of the Closing Date, the Securities shall have been duly listed on the
Exchange and the Issuable Common Stock shall have been duly reserved for listing upon
issuance following settlement of the Stock Purchase Contract on the Exchange;
(s) As of the Closing Date, the security interest in the Securities under the
Indemnification Collateral Agreement shall have been released, discharged and terminated in
accordance with the terms of the Amended Indemnification Collateral Agreement and the
Indemnification Collateral Substitution Instruction, and the Securities shall be free and
clear of all liens, encumbrances, security interests, equities, charges or claims as of
such time;
(t) The Coordination Agreement shall be in full force and effect, and neither the
Coordination Agreement nor the Investor Rights Agreement shall have been amended since the
execution and delivery of the Coordination Agreement;
(u) The Amended Indemnification Collateral Agreement shall be in full force and
effect, and the Amended Indemnification Collateral Agreement shall not have been amended
since the execution and delivery of the Amended Indemnification Collateral Agreement; and
(v) The Indemnification Collateral Substitution Instruction shall be in full force
and effect, and the Indemnification Collateral Substitution Instruction shall not have been
amended since the execution and delivery of the Indemnification Collateral Substitution
Instruction.
The Selling Securityholder will not be obligated to deliver the Securities hereunder unless
the Coordination Agreement shall be in full force and effect.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its partners,
directors and officers and each person, if any, who controls such Underwriter within the meaning of either Section 15 of the Act or Section 20 of
32
the
Exchange Act, against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in
(i) the Registration Statement or any amendment or supplement (when considered
together with the document to which such supplement relates) thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading or
(ii) any Preliminary Prospectus, Pricing Prospectus, any Issuer Free Writing
Prospectus or the Final Prospectus, or any amendment or supplement (when considered
together with the document to which such supplement relates) thereto, or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise
out of or are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim 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 or liability (or action in respect thereof) arises out of or
is based upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any Issuer Free Writing Prospectus, Pricing
Prospectus, the Registration Statement or the Final Prospectus, or any such amendment or
supplement(s) in reliance upon and in conformity with written information furnished to the
Company by any Underwriter of the applicable Securities through the Representatives or the
Selling Securityholder expressly for use therein.
(b) AIG and the Selling Securityholder will, jointly and severally, indemnify and
hold harmless each Underwriter and each person, if any, who controls such Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
against any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in (i)
the Registration Statement or any amendment or supplement (when considered together with
the document to which such supplement relates) thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) any
Preliminary Prospectus, Pricing Prospectus, any Issuer Free Writing Prospectus
listed on Schedule 2 hereto or the Final Prospectus, or any amendment or
33
supplement
(when considered together with the document to which such supplement relates) thereto, or
arise out of or are based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the
Final Prospectus, any Issuer Free Writing Prospectus listed on Schedule 2 hereto, or any
such amendment or supplement(s) in reliance upon and in conformity with written information
furnished to the Company by AIG or the Selling Securityholder expressly for use therein;
and will reimburse such Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that the Underwriters
acknowledge and agree that for all purposes of this Agreement, the only information
furnished to the Company by or on behalf of AIG or the Selling Securityholder expressly for
use in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the
Final Prospectus, any Issuer Free Writing Prospectus listed on Schedule 2 hereto or any
amendment or supplement thereto are the statements pertaining to the name and address of
the Selling Securityholder and the number of shares owned and the number of shares proposed
to be sold by the Selling Securityholder under the caption “Selling Securityholder” in any
Preliminary Prospectus, the Pricing Prospectus and the Final Prospectus.
(c) Each Underwriter will, severally and not jointly, indemnify and hold harmless
the Company, AIG and the Selling Securityholder, the directors and officers of the Company
who sign the Registration Statement and each person, if any, who controls the Company, AIG
or the Selling Securityholder within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act against any losses, claims, damages or liabilities (or actions in respect
thereof) to which the Company, AIG or the Selling Securityholder may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any Issuer Free
Writing Prospectus, Pricing
Prospectus, the Registration Statement, or the Final
Prospectus, or any amendment or supplement (when considered together with the document to
which such supplement relates) thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made
in any Preliminary Prospectus, any Issuer Free Writing Prospectus, Pricing
34
Prospectus,
the Registration Statement, the Final Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will reimburse the
Company, AIG or the Selling Securityholder, as the case may be, for any legal or other
expenses reasonably incurred by the Company, AIG or the Selling Securityholder, as the case
may be, in connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or
(c) above of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement thereof; the
omission so to notify the indemnifying party shall relieve it from any liability which it
may have to any indemnified party under such subsection, to the extent the indemnifying
party is actually materially prejudiced by such omission. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party or any other indemnified party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation, unless (i) the indemnifying party and
such indemnified party shall have mutually agreed to the contrary, (ii) the
indemnifying party has failed within a reasonable time to retain counsel reasonably
satisfactory to such indemnified party or (iii) the named parties in any such
proceeding (including any impleaded parties) include both the indemnifying party and such
indemnified party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. No indemnifying
party shall, without the prior written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure
35
to act, by or on behalf of any indemnified party. In no event shall the indemnifying party
be liable for fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction arising out of
the same allegations or circumstances.
(e) If the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above
in respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, other than due to the express provisions thereof, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received by the
Company and AIG and the Selling Securityholder on the one hand and the Underwriters on the
other from the offering of the applicable Securities to which any such loss, claim, damage
or liability (or action in respect thereof) relates. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and AIG and the Selling Securityholder on the one
hand and the Underwriters of the applicable Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and AIG and the Selling Securityholder on the one
hand and such Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by the the
Selling Securityholder bear to the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover page of the Final
Prospectus relating to the applicable Securities. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and AIG and the Selling Securityholder on the one hand
or the Underwriters on the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company,
AIG and the Selling Securityholder and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable considerations
referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of
36
the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in
this subsection (e) shall be deemed to include 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 subsection (e), (i) no Underwriter
shall be required to contribute any amount in excess of the amount by which the total price
at which the applicable Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and (ii) AIG and the Selling Securityholder shall not be
required to contribute any amount in excess of the amount by which (A) the net proceeds
received by the Selling Securityholder from the sale of Securities exceeds (B) the amount
of any damages which AIG and the Selling Securityholder have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of the applicable
Securities in this subsection (e) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and not joint.
(f) The obligations of the Company, AIG and the Selling Securityholder under this
Section 8 shall be in addition to any liability which the Company, AIG and the Selling
Securityholder may otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of the Act. The
obligations of the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company (including any person who, with
his consent, is named in the Registration Statement as about to become a director of the
Company) and to each person, if any, who controls the Company, AIG or the Selling
Securityholder within the meaning of the Act.
9. Defaulting Underwriters.
(a) If any Underwriter shall default in its obligation to purchase the Securities
which it has agreed to purchase under the Pricing Agreement relating to such Securities,
the Representatives may in their discretion arrange for themselves or another party or
other parties to purchase such Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do not arrange
for the purchase of such Securities, then the Selling Securityholder (acting on its own or
through AIG) shall be entitled to a
further period of thirty-six hours within which to procure another party or other
37
parties satisfactory to the Representatives to purchase such Securities on such terms. In
the event that, within the respective prescribed periods, the Representatives notify the
Selling Securityholder that the Representatives have so arranged for the purchase of such
Securities, or the Selling Securityholder (acting on its own or through AIG) notifies the
Representatives that it has so arranged for the purchase of such Securities, the
Representatives or the Selling Securityholder (acting on its own or through AIG) shall have
the right to postpone the Closing Date for such Securities for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement, the Disclosure Package or the Final Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement, the Disclosure Package or the Final
Prospectus which in the opinion of the Representatives may thereby be made necessary. The
term “Underwriter” as used in this Agreement shall include any person substituted under
this Section with like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities
of any defaulting Underwriter or Underwriters by the Representatives and the Selling
Securityholder as provided in subsection (a) above, the aggregate number of shares of such
Securities which remains unpurchased does not exceed ten percent of the aggregate number of
shares of such Securities to be purchased on such Closing Date, then the Selling
Securityholder shall have the right to require each non-defaulting Underwriter to purchase
the aggregate number of shares of such Securities which such Underwriter agreed to purchase
under the Pricing Agreement relating to such Securities and, in addition, to require each
nondefaulting Underwriter to purchase its pro rata share (based on the aggregate number of
shares of such Securities which such Underwriter agreed to purchase under such Pricing
Agreement) of the Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities
of a defaulting Underwriter or Underwriters by the Representatives and the Selling
Securityholder as provided in subsection (a) above, the aggregate number of shares of such
Securities which remains unpurchased exceeds ten percent of the aggregate number of shares
of such Securities as referred to in subsection (b) above, or if the Selling Securityholder
(acting on its own or through AIG) shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Securities shall thereupon terminate, without liability on the part of any
38
nondefaulting Underwriter or the Selling Securityholder, except for the expenses to be
borne by the Company, AIG, the Selling Securityholder and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its default.
10. Offering and Allocation Restrictions. Each Underwriter acknowledges,
represents and agrees that it has not offered, sold or delivered and it will not offer, sell or
deliver, any of the Securities, in or from any jurisdiction except under circumstances that are
reasonably designed to result in compliance with the applicable securities laws and regulations
thereof. In particular, each Underwriter acknowledges, represents and agrees as set forth in Annex
IX to this Agreement. The Underwriters agree that they will not sell the Securities purchased by
them hereunder to any purchaser if the number of shares of Common Stock issuable under any
Securities sold to such purchaser (for the purpose of this determination, giving effect to the
conversion of such Securities into the minimum number of underlying shares of Common Stock),
together with the number of shares of Common Stock sold to such purchaser in a concurrent offering
of 68,570,000 shares of Common Stock by the Company and 78,239,712 shares of Common Stock by the
Selling Securityholder (the “Concurrent Offering”), would exceed 22 million shares, unless
approved by the Company.
11. Survival. The respective indemnities, agreements, representations, warranties
and other statements of the Company, AIG, the Selling Securityholder and the several Underwriters,
as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any investigation (or any statement
as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any
Underwriter, the Company, AIG or the Selling Securityholder or any officer or director or
controlling person of the Company and shall survive delivery of and payment for the Securities.
12. Effect of Termination of Pricing Agreement or Nondelivery of Securities. If
any Pricing Agreement shall be terminated pursuant to Section 9 hereof, the Company, AIG and the
Selling Securityholder shall not then be under any liability to any Underwriter with respect to the
Securities covered by such Pricing Agreement except as provided in Section 6 and Section 8 hereof;
but, if for any other reason, Securities are not delivered by or on behalf of the Company or the
Selling Securityholder, as the case may be, as provided herein, the Company, AIG and the Selling
Securityholder, jointly and severally, will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and delivery of such Securities, but
the Company, AIG and the Selling Securityholder shall then be under no further liability to any
Underwriter in respect of such Securities except as provided in
Section 6 and Section 8 hereof, it being understood that AIG and the Selling
39
Securityholder
shall be treated as one entity for purposes of such reimbursement and that the Company, on the one
hand, and AIG and the Selling Securityholder, on the other hand, shall be responsible for no more
than their pro rata share of such expenses based on the number of Securities that the Company, on
the one hand, and AIG and the Selling Securityholder, on the other hand, propose to sell under the
Pricing Agreement.
13. Reliance upon Representatives. In all dealings hereunder, the Representatives
shall act on behalf of the Underwriters of Securities and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or
given by such of the Representatives, if any, as may be designated for such purpose in the
applicable Pricing Agreements.
14. Notices. All statements, requests, notices and agreements hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication; notices to the Underwriters shall be directed to the address of the
respective Representatives as set forth in the applicable Pricing Agreements with a copy to
(i) Debevoise & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (facsimile:
212-909-6836), attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (facsimile: 212-225-3999), Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, Esq.; if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration Statement, Attention:
General Counsel, with a copy to ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, attention ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. and ▇▇▇▇▇▇▇▇ Nicenko, Esq.; if to AIG or the Selling
Securityholder shall be delivered or sent by mail, telex or facsimile transmission to American
International Group, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (facsimile: 646-792-5929),
Attention: General Counsel, with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. Any such statements,
requests, notices or agreements shall take effect at the time of receipt thereof.
15. Successors and Assigns. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the Company, AIG, the Selling
Securityholder and, to the extent provided in Sections 8 and 11 hereof, the officers and directors
of the Company and each person who controls the Company, AIG, the Selling Securityholder or any
Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
16. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN
40
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
17. Consent to Jurisdiction. Each of the Company, AIG and the Selling
Securityholder agrees that any legal suit, action or proceeding against the Company, AIG or Selling
Securityholder brought by any Underwriter or by any person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, arising out of or
based upon this Agreement or the transactions contemplated hereby may be instituted in any state or
federal court in the Borough of Manhattan, The City of New York, New York, and, to the fullest
extent permitted by applicable law, waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction
of such courts in any suit, action or proceeding.
18. Counterparts. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same instrument.
19. No Advisory or Fiduciary Relationship. Each of the Company, AIG and Selling
Securityholder acknowledges and agrees that (a) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering price of the
Securities and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company, AIG and the Selling Securityholder, on the one hand, and the several
Underwriters, on the other hand, (b) in connection with any offering contemplated by this
Agreement and any Pricing Agreement and the process leading to any such transaction each
Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the
Company, AIG or the Selling Securityholder, or any of their respective stockholders, creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company, AIG or the Selling Securityholder with respect to
any such offering contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company, AIG or the Selling Securityholder on
other matters) and no Underwriter has any obligation to the Company, AIG or the Selling
Securityholder with respect to such offering contemplated hereby except the obligations expressly
set forth in this Agreement and any relevant Pricing Agreement, (d) 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, AIG and the Selling Securityholder, (e) each of the
Company, AIG and the Selling Securityholder agrees that it will not claim that the Underwriters, or
any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, AIG or the Selling Securityholder, in connection with such transaction
or the process leading thereto and (f) the Underwriters have not provided any legal,
41
accounting, regulatory or tax advice with respect to the offering contemplated hereby and each
of the Company, AIG and the Selling Securityholder has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
20. Entire Agreement. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company, AIG, the Selling Securityholder and
the Underwriters, or any of them, with respect to the subject matter hereof.
21. Waiver of Jury Trial. The Company and each of the Underwriters hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
22. No Voting. Without limiting the applicability of Sections 3 and 4 hereof or
any other provision of this Agreement, the Underwriters will purchase any Securities purchased
hereunder in the ordinary course of their activities as broker-dealers and not with the purpose or
intent, directly or indirectly through any affiliate, of exercising control over the Company or any
of its subsidiaries. In furtherance of the foregoing, each Underwriter agrees that for so long as
it owns any of the Securities purchased by it hereunder (a) it, directly or indirectly
through any affiliate, will not exercise any voting rights associated with the Securities purchased
by it hereunder, to the extent such exercise would give rise to a presumption of control under any
applicable insurance law or regulation or trigger any other regulatory approval requirement,
without first having obtained any required regulatory approval; (b) to the extent it,
directly or indirectly through any affiliate, exercises any voting rights associated with the
Securities purchased by it hereunder, it and any such affiliates will vote all such Securities in
the same proportion as the shares of Common Stock or other voting securities of the Company voted
by all other holders of Common Stock or such other voting securities; and (c) it will not
sell the Securities purchased by it hereunder to any purchaser if the number of shares of Common
Stock issuable under any Securities sold to such purchaser (for the purpose of this determination,
giving effect to the conversion of such Securities into the minimum number of underlying shares of
Common Stock), together with the number of shares of Common Stock sold to such purchaser in the
Concurrent Offering, would exceed 22 million shares, unless approved by the Company.
23. Patriot Act. In accordance with the requirements of the USA Patriot Act
(Title III of Pub. L., 107-56 (signed into law October 26, 2001)), the Underwriters are required to
obtain, verify and record information that identifies their respective clients, which information
may include the name and address of their respective clients, as well as other information that
will allow the Underwriters to properly identify their respective clients.
[Signature pages follow]
42
v
| Very truly yours, METLIFE, INC. |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President and Treasurer | |||
[Signature Page to Equity Units Underwriting Agreement]
| AMERICAN INTERNATIONAL GROUP, INC. |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Executive Vice President – Treasury and Capital Markets | |||
| ALICO HOLDINGS LLC |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Manager | |||
[Signature Page to Equity Units Underwriting Agreement]
Accepted as of the date hereof
on behalf of each of the Underwriters:
on behalf of each of the Underwriters:
| ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. | ||||
By: |
/s/ ▇▇▇▇▇▇▇, Sachs & Co. | |||
[Signature Page to Equity Units Underwriting Agreement]
|
CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Citigroup Global Markets Inc. Vice President | |||
[Signature Page to Equity Units Underwriting Agreement]
SCHEDULE 1
Issuer Free Writing Prospectuses included in the Disclosure Package:
None.
SCHEDULE 2
Issuer Free Writing Prospectuses not included in the Disclosure Package:
Electronic road show presentation made available on ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
ANNEX I
PRICING AGREEMENT
March 2, 2011
▇▇▇▇▇▇▇, Sachs & Co.
Citigroup Global Markets Inc.
As Representatives of the several Underwriters
named in Schedule I hereto
Citigroup Global Markets Inc.
As Representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
ALICO Holdings LLC, a Delaware limited liability company (the “Selling
Securityholder”), proposes, subject to the terms and conditions stated herein (this
“Agreement”) and in the Underwriting Agreement, dated March 2, 2011 (the “Underwriting
Agreement”), among MetLife, Inc., a Delaware corporation (the “Company”), American
International Group, Inc., a Delaware corporation (“AIG”), the Selling Securityholder and
the Underwriters named in Schedule I hereto (the “Underwriters”), to sell to the
Underwriters the total number of the Company’s common equity units specified in Schedule I hereto
(the “Securities”) at the purchase price per share specified in Schedule II hereto.
Each of the provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this Agreement, the
Applicable Time and the Closing Date. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein
as therein defined. The Securities shall be considered Securities under the Underwriting
Agreement. The Representatives designated to act on behalf of the Representatives and on behalf of
each of the Underwriters of the Securities pursuant to the Underwriting Agreement and the address
of the Representatives are set forth at the end of Schedule II hereto.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Selling Securityholder agrees to sell and
deliver to each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Selling Securityholder, at the time and place and at the purchase
price to the Underwriters set forth in Schedule II hereto, the number of Securities set forth
opposite the name of such Underwriter in Schedule I hereto. The date of the issuance, sale and
delivery of the Securities is the “Closing Date” set forth on Schedule II hereto and such
date shall be considered a Closing Date under the Underwriting Agreement.
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between each of the
Underwriters, the Company, AIG and the Selling Securityholder. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted
to the Company, AIG and the Selling Securityholder for examination upon request, but without
warranty on the part of the Representatives as to the authority of the signers thereof.
[Signature pages follow]
2
| Very truly yours, METLIFE, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Equity Units Pricing Agreement]
| AMERICAN INTERNATIONAL GROUP, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ALICO HOLDINGS LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Equity Units Pricing Agreement]
Accepted as of the date hereof
on behalf of each of the Underwriters:
on behalf of each of the Underwriters:
| ▇▇▇▇▇▇▇, SACHS & CO. | ||||
By: |
||||
[Signature Page to Equity Units Pricing Agreement]
CITIGROUP GLOBAL MARKETS INC.
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Equity Units Pricing Agreement]
SCHEDULE I
TO PRICING AGREEMENT
TO PRICING AGREEMENT
| Total Number of | ||||
| Securities to be | ||||
| Purchased from ALICO | ||||
| Underwriters | Holdings LLC | |||
▇▇▇▇▇▇▇, Sachs & Co. |
10,700,000 | |||
Citigroup Global Markets Inc. |
8,000,000 | |||
Credit Suisse Securities (USA) LLC |
3,800,000 | |||
Barclays Capital Inc. |
2,500,000 | |||
Deutsche Bank Securities Inc. |
2,500,000 | |||
▇.▇. ▇▇▇▇▇▇ Securities LLC |
2,500,000 | |||
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated |
2,500,000 | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated. |
2,500,000 | |||
UBS Securities LLC |
2,500,000 | |||
▇▇▇▇▇ Fargo Securities, LLC |
2,500,000 | |||
Total |
40,000,000 | |||
I-SI-1
SCHEDULE II
TO PRICING AGREEMENT
TO PRICING AGREEMENT
Underwriting Agreement, dated March 2, 2011
Registration Statement No. 333-170876
INITIAL PRICE TO THE PUBLIC: $82.88
PURCHASE PRICE BY UNDERWRITERS: $82.4656
NUMBER OF SECURITIES TO BE PURCHASED
FROM ALICO HOLDINGS LLC: 40,000,000
PARTIES TO LOCK-UP AGREEMENTS:
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
CLOSING DATE: March 8, 2011
TIME OF CLOSING DATE: 10 A.M.
LOCATION OF CLOSING DATE: the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
REPRESENTATIVES:
|
▇▇▇▇▇▇▇, Sachs & Co. | |
| Citigroup Global Markets Inc. |
I-SII-B-1
ADDRESSES FOR NOTICES, ETC.:
IF TO THE REPRESENTATIVES:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Registration Department (Facsimile: 212-902-9316)
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel (Facsimile: 212-816-7912)
IF TO THE COMPANY:
MetLife, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
IF TO AIG OR THE SELLING STOCKHOLDER:
American International Group, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
2
ANNEX II
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ OPINION
II-1
ANNEX III
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP OPINIONS
ANNEX III-A: OPINION
III-A-1
ANNEX III
ANNEX III-B: NEGATIVE ASSURANCE LETTER
III-B-1
ANNEX IV
FORM OF AIG AND SELLING SECURITYHOLDER OPINION
IV-1
ANNEX V
METLIFE, INC. CHIEF ACCOUNTING OFFICER CERTIFICATE
V-1
ANNEX VI
DELOITTE & TOUCHE LLP COMFORT LETTER
VI-1
ANNEX VII
PRICEWATERHOUSECOOPERS LLP COMFORT LETTER
VII-1
ANNEX VIII
FORM OF LOCK-UP AGREEMENT
March 2, 2011
MetLife, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, Sachs & Co.
Citigroup Global Markets Inc.,
Credit Suisse Securities (USA) LLC,
as Representatives of the several Underwriters named
in the Pricing Agreement attached as Annex 1 to the
Underwriting Agreement referred to below
Citigroup Global Markets Inc.,
Credit Suisse Securities (USA) LLC,
as Representatives of the several Underwriters named
in the Pricing Agreement attached as Annex 1 to the
Underwriting Agreement referred to below
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Citigroup Global Markets Inc.,
as Representatives of the several Underwriters named
in the Pricing Agreement attached as Annex 1 to the
Underwriting Agreement referred to below
Citigroup Global Markets Inc.,
as Representatives of the several Underwriters named
in the Pricing Agreement attached as Annex 1 to the
Underwriting Agreement referred to below
| c/o | Goldman, Sachs & Co. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ |
Dear Sirs:
As an inducement to the Underwriters (as defined in the Underwriting Agreements referred to
herein) to enter into Underwriting Agreements with MetLife, Inc. and any successor (by merger or
otherwise) thereto (the “Company”) pursuant to which an offering by the Company and ALICO
Holdings LLC of the Company’s common stock, par value $0.01 per share (“Common Stock”), and
an offering by ALICO Holdings LLC of the Company’s common equity units with an initial stated value
of $75.00 (the “Equity Units” and, together with the Common Stock, the
“Securities”) is proposed to be made that is intended to result in an orderly market for
the Securities, the undersigned hereby agrees that during the period specified in the following
paragraph (the “Lock-Up Period”), the undersigned will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any Securities or securities convertible
into or exchangeable or exercisable for any Securities, enter into a transaction which would have
the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in
part, any of the economic consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the Securities or such other securities,
in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or
disposition, or to enter into any such transaction, swap, hedge or other
VIII-1
arrangement, without, in each case, the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
(“▇▇▇▇▇▇▇ Sachs”). In addition, the undersigned agrees that, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, it will not, during the Lock-Up Period, make any demand for or exercise
any right with respect to, the registration of any Securities or any security convertible into or
exercisable or exchangeable for the Securities.
The Lock-Up Period will commence on the date of this Lock-Up Agreement and continue through
and include the date 60 days after the public offering date set forth on the final prospectus used
to sell the Securities (the “Public Offering Date”) pursuant to the Underwriting Agreement,
to which you are or expect to become parties.
A transfer of Securities to a family member, trust or charitable organization may be made,
provided that (i) the transferee agrees to be bound in writing by the terms of this
Agreement prior to such transfer, (ii) such transfer shall not involve a disposition for
value and (iii) no filing by any party (donor, donee, transferor or transferee) under the
Securities Exchange Act of 1934 (the “Exchange Act”) shall be required or shall be
voluntarily made in connection with such transfer (other than a filing on a Form 5 made after the
expiration of the Lock-Up Period).
Notwithstanding anything herein to the contrary, (a) if the undersigned has entered
into a written trading plan established pursuant to Rule 10b5-1 of the Exchange Act prior to the
commencement of the Lock-Up Period, the undersigned may sell any Securities pursuant to such plan
during the Lock-Up Period without any notice to ▇▇▇▇▇▇▇ Sachs, (b) the undersigned may
enter into one or more written trading plans established pursuant to Rule 10b5-1 of the Exchange
Act during the Lock-Up Period, but may not sell any Securities or securities convertible into or
exchangeable or exercisable for any Securities pursuant to such plan during the Lock-Up Period, and
(c) the undersigned may exercise stock options or otherwise receive Securities from the
Company during the Lock-Up Period. Any Securities received upon exercise of options granted to the
undersigned or otherwise received by the undersigned from the Company will also be subject to this
Agreement.
In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby
authorized to decline to make any transfer of Securities if such transfer would constitute a
violation or breach of this Agreement.
VIII-2
This Agreement shall be binding on the undersigned and the successors, heirs, personal
representatives and assigns of the undersigned. This Agreement shall lapse and become null and
void if the Public Offering Date shall not have occurred on or before April 30, 2011. This
agreement shall be governed by, and construed in accordance with, the laws of the State of New
York.
|
Very truly yours, |
||||
| [Name of stockholder / director / officer] | ||||
VIII-3
ANNEX IX
OFFERING RESTRICTIONS
European Economic Area
In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a Relevant Member State), with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant Member State, it has not made and
will not make an offer of Common Equity Units which is the subject of the offering contemplated by
this prospectus supplement to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus
Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant
provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than
qualified investors as defined in the Prospectus Directive), as permitted under the
Prospectus Directive, subject to obtaining the prior consent of the representatives for any
such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive,
provided, that no such offer of Common Equity Units shall require MetLife, Inc. or any
representative to publish a prospectus pursuant to Article 3 of the Prospectus Directive or
supplement a prospectus pursuant to Article 16 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer to the public” in relation to any
Common Equity Units in any Relevant Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and any Common Equity Units to be offered
so as to enable an investor to decide to purchase or subscribe the Common Equity Units, as the same
may be varied in that Member State by any measure implementing the Prospectus Directive in that
Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments
thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member
State) and includes any relevant implementing measure in each Relevant Member State and the
expression “2010 PD Amending Directive” means Directive 2010/73/EU.
United Kingdom
(a) It has only communicated or caused to be communicated and will only communicate or
cause to be communicated an invitation or inducement to engage in
IX-1
investment activity (within the meaning of Section 21 of the Financial Services and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, or FSMA) received by it in connection with the issue or sale of the Common
Equity Units in circumstances in which Section 21(1) of the FSMA does not apply to MetLife,
Inc. or any representative; and
(b) It has complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Common Equity Units in, from or otherwise
involving the United Kingdom.
Switzerland
This prospectus supplement (and the accompanying prospectus), as well as any other material
relating to the Common Equity Units which is the subject of the offering contemplated by this
prospectus supplement (and the accompanying prospectus), do not constitute an issue prospectus
pursuant to Article 652a or Article 1156 of the Swiss Code of Obligations. The Common Equity Units
will not be listed on the SIX Swiss Exchange and, therefore, the documents relating to the Common
Equity Units, including, but not limited to, this prospectus supplement (and the accompanying
prospectus) may not comply with the disclosure standards of the listing rules (including any
additional listing rules or prospectus schemes) of the SIX Swiss Exchange. The Common Equity Units
are being offered in Switzerland by way of a private placement, i.e., to a small number of selected
investors only, without any public offer and only to investors who do not purchase the Common
Equity Units with the intention to distribute it to the public. The investors will be individually
approached by the issuer from time to time. This prospectus supplement (and the accompanying
prospectus) as well as any other material relating to the Common Equity Units, is personal and
confidential and does not constitute an offer to any other person. This prospectus supplement (and
the accompanying prospectus) may only be used by those investors to whom it has been handed out in
connection with the offering described herein and may neither directly nor indirectly be
distributed or made available to other persons without express consent of the issuer. It may not be
used in connection with any other offer and shall in particular not be copied and/or distributed to
the public in (or from) Switzerland.
Dubai International Financial Centre
This prospectus supplement (and the accompanying prospectus) relates to an exempt offer in
accordance with the Offered Securities Rules of the Dubai Financial Services Authority. This
prospectus supplement (and the accompanying prospectus) is intended for distribution only to
persons of a type specified in those rules. It must not be delivered to, or relied on by, any other
person. The Dubai Financial Services Authority has no responsibility for reviewing or verifying any
documents in connection with exempt offers. The Dubai Financial Services Authority has not approved
this prospectus supplement (and the accompanying prospectus) nor taken steps to verify the
information set out in it, and has no responsibility for it. The Common Equity Units which are the
IX-2
subject of the offering contemplated by this prospectus supplement may be illiquid and/or
subject to restrictions on their resale. Prospective purchasers of the Common Equity Units offered
should conduct their own due diligence on the Common Equity Units. If you do not understand the
contents of this prospectus supplement (and the accompanying prospectus) you should consult an
authorized financial adviser.
Australia
This prospectus supplement (and the accompanying prospectus) is not a formal disclosure
document and has not been, nor will be, lodged with the Australian Securities and Investments
Commission. This prospectus supplement (and the accompanying prospectus) does not purport to
contain all information that investors or their professional advisers would expect to find in a
prospectus or other disclosure document (as defined in the Corporations ▇▇▇ ▇▇▇▇ (Australia)) for
the purposes of Part 6D.2 of the Corporations ▇▇▇ ▇▇▇▇ (Australia) or in a product disclosure
statement for the purposes of Part 7.9 of the Corporations ▇▇▇ ▇▇▇▇ (Australia), in either case, in
relation to the Common Equity Units.
The Common Equity Units are not being offered in Australia to “retail clients” as defined in
sections 761G and 761GA of the Corporations ▇▇▇ ▇▇▇▇ (Australia). This offering is being made in
Australia solely to “wholesale clients” for the purposes of section 761G of the Corporations Act
2001 (Australia) and, as such, no prospectus, product disclosure statement or other disclosure
document in relation to the Common Equity Units has been, or will be, prepared.
This prospectus supplement (and the accompanying prospectus) does not constitute an offer in
Australia other than to wholesale clients. By submitting an application for the Common Equity
Units, you represent and warrant to us that you are a wholesale client for the purposes of section
761G of the Corporations ▇▇▇ ▇▇▇▇ (Australia). If any recipient of this prospectus supplement (and
the accompanying prospectus) is not a wholesale client, no offer of, or invitation to apply for,
the Common Equity Units shall be deemed to be made to such recipient and no applications for the
Common Equity Units will be accepted from such recipient. Any offer to a recipient in Australia,
and any agreement arising from acceptance of such offer, is personal and may only be accepted by
the recipient. In addition, by applying the Common Equity Units you undertake to us that, for a
period of 12 months from the date of issue of the Common Equity Units, you will not transfer any
interest in the Common Equity Units to any person in Australia other than to a wholesale client.
Hong Kong
The Common Equity Units may not be offered or sold by means of any document other than (i) in
circumstances which do not constitute an offer to the public within the meaning of the Companies
Ordinance (Cap. 32, Laws of Hong Kong), or (ii) to
IX-3
“professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571,
Laws of Hong Kong) and any rules made thereunder, or (iii) in other circumstances which do not
result in this prospectus supplement (and the accompanying prospectus) being a “prospectus” within
the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), and no advertisement,
invitation or document relating to the Common Equity Units may be issued or may be in the
possession of any person for the purpose of issue (in each case, whether in Hong Kong or
elsewhere), which is directed at, or the contents of which are likely to be accessed or read by,
the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with
respect to the Common Equity Units which are or are intended to be disposed of only to persons
outside Hong Kong or only to “professional investors” within the meaning of the Securities and
Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder.
Japan
The Common Equity Units have not been and will not be registered under the Financial
Instruments and Exchange Law of Japan (the “Financial Instruments and Exchange Law”) and each
underwriter has agreed that it will not offer or sell any Common Equity Units, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term as used herein
means any person resident in Japan, including any corporation or other entity organized under the
laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to a
resident of Japan, except pursuant to an exemption from the registration requirements of, and
otherwise in compliance with, the Financial Instruments and Exchange Law and any other applicable
laws, regulations and ministerial guidelines of Japan.
Singapore
Neither this prospectus supplement nor the accompanying prospectus has been registered as a
prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus supplement, the
accompanying prospectus or any other document or material in connection with the offer or sale, or
invitation for subscription or purchase, of the Common Equity Units may not be circulated or
distributed, nor may the Common Equity Units be offered or sold, or be made the subject of an
invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore
other than (i) to an institutional investor under Section 274 of the Securities and Futures Act,
Chapter 289 of Singapore (the “SFA”), (ii) to a relevant person, or any person pursuant to Section
275(1A), and in accordance with the conditions, specified in Section 275 of the SFA or (iii)
otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of
the SFA.
Where the Common Equity Units are subscribed or purchased under Section 275 by a relevant
person which is: (a) a corporation (which is not an accredited investor) the
IX-4
sole business of which is to hold investments and the entire share capital of which is owned
by one or more individuals, each of whom is an accredited investor; or (b) a trust (where the
trustee is not an accredited investor) whose sole purpose is to hold investments and each
beneficiary is an accredited investor, common stock, debentures and units of common stock and
debentures of that corporation or the beneficiaries’ rights and interest in that trust shall not be
transferable for 6 months after that corporation or that trust has acquired the Common Equity Units
under Section 275 except: (1) to an institutional investor under Section 274 of the SFA or to a
relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions,
specified in Section 275 of the SFA; (2) where no consideration is given for the transfer; or (3)
by operation of law.
IX-5