EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT
EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT, dated as of May 20, 2008 (the
“ Agreement ”).
WHEREAS, American
International Group, Inc., a corporation organized under the laws
of the state of Delaware (the “ Company ”),
proposes to issue and sell to Citigroup Global Markets Inc., J.P.
Morgan Securities Inc., Banc of America Securities LLC, Barclays
Capital Inc., Lehman Brothers Inc., Mitsubishi UFJ Securities
International plc, Mizuho Securities USA Inc., Daiwa Securities
America Inc., RBC Capital Markets Corporation, Santander Investment
Securities Inc., KeyBanc Capital Markets Inc., Scotia Capital
(USA) Inc., Wells Fargo Securities, LLC, ANZ Securities, Inc.,
nabCapital Securities, LLC, BMO Capital Markets Corp., TD
Securities (USA) LLC, ING Bank N.V., Calyon Securities,
SunTrust Robinson Humphrey, Inc., NatCity Investments, Inc., BBVA
Securities, Inc. and CIBC World Markets Corp. (the “
Initial Purchasers ”), upon the terms set forth in the
purchase agreement, dated May 13, 2008 (the “
Purchase Agreement ”), its 8.175% Series A-6
Junior Subordinated Debentures (the “ Debentures
”).
WHEREAS, it is a
condition to the Initial Purchasers’ obligation to purchase
the Securities that the Company enter into this
Agreement;
NOW THEREFORE, the
Company hereby undertakes as follows:
1.
Certain Definitions . For purposes of this Agreement, the
following terms shall have the following respective
meanings:
“ Base
Interest ” shall mean the interest that would otherwise
accrue on the Debentures under the terms thereof and the Indenture,
without giving effect to the provisions of this
Agreement.
The term “
broker-dealer ” shall mean any broker or dealer
registered with the Commission under the Exchange Act.
“ Closing
Date ” shall mean the date on which the Debentures are
initially issued.
“
Commission ” shall mean the United States Securities
and Exchange Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act, whichever is
the relevant statute for the particular purpose.
“
Effective Time ,” in the case of (i) an Exchange
Registration, shall mean the time and date as of which the
Commission declares the Exchange Registration Statement effective
or as of which the Exchange Registration Statement otherwise
becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective.
“
Electing Holder ” shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with
Section 3(d)(ii) or 3(d)(iii) hereof.
“
Exchange Act ” shall mean the Securities Exchange Act
of 1934, or any successor thereto, as the same shall be amended
from time to time.
“
Exchange Offer ” shall have the meaning assigned
thereto in Section 2(a) hereof.
“
Exchange Registration ” shall have the meaning
assigned thereto in Section 3(c) hereof.
“
Exchange Registration Statement ” shall have the
meaning assigned thereto in Section 2(a) hereof.
“
Exchange Securities ” shall have the meaning assigned
thereto in Section 2(a) hereof.
The term “
holder ” shall mean the Initial Purchasers and other
persons who acquire Registrable Securities from time to time
(including any successors or assigns), in each case for so long as
such person is a record or beneficial owner of any Registrable
Securities.
“
Indenture ” shall mean the Junior Subordinated Debt
Indenture, dated as of March 13, 2007, between the Company and
The Bank of New York, as Trustee (the “ Trustee
”), as supplemented by the Ninth Supplemental Indenture,
dated as of May 20, 2008, between the Company and the Trustee
as the same shall be amended from time to time.
“Material Adverse Effect” shall have the meaning
assigned thereto in Section 5(c).
“ Notice
and Questionnaire ” means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in
the form of Exhibit A hereto.
“
Outstanding ” has the meaning specified in the
Indenture.
The term “
person ” shall mean a corporation, association,
partnership, organization, business trust, individual, government
or political subdivision thereof or governmental agency.
“
Registrable Securities ” shall mean the Securities
other than any Exchange Securities issued in an Exchange Offer as
contemplated in Section 2(a) hereof ( provided that any
Exchange Security that, pursuant to the sentence immediately
preceding the penultimate sentence of Section 2(a), is
included in a prospectus for use in connection with resales by
broker-dealers shall be deemed to be a Registrable Security with
respect to Sections 5, 6 and 7 hereof until resale of such
Registrable Security has been effected within the 30 day
period referred to in Section 2(a)); provided ,
however , that a Security shall cease to be a Registrable
Security when (i) in the circumstances contemplated by Section
2(b) hereof, a Shelf Registration Statement registering such
Security under the Securities Act has been declared or becomes
effective and such Security has been sold or otherwise transferred
by the holder thereof pursuant to and in a manner contemplated by
such effective Shelf Registration Statement, (ii) such
Security is sold pursuant to Rule 144 or Regulation S
under circumstances in which any legend borne by such Security
relating to restrictions on transferability thereof, under the
Securities Act or otherwise,
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is removed by
the Company or pursuant to the Indenture or (iii) such
Security shall cease to be Outstanding.
“
Registration Default ” shall have the meaning assigned
thereto in Section 2(c) hereof.
“
Registration Expenses ” shall have the meaning
assigned thereto in Section 4 hereof.
“ Resale
Period ” shall have the meaning assigned thereto in
Section 2(a) hereof.
“
Restricted Holder ” shall mean (i) a holder that
is an affiliate of the Company within the meaning of Rule 405,
(ii) a holder who acquires Exchange Securities outside the
ordinary course of such holder’s business, (iii) a
holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing
Exchange Securities and (iv) a holder that is a broker-dealer,
but only with respect to Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from
an Initial Purchaser or in the secondary market.
“
Rule 144 ,” “ Rule 405 ”
and “ Rule 415 ” shall mean, in each case,
such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to
time.
“
Securities ” shall mean the Debentures of the Company
to be issued and sold to the Initial Purchasers and securities
issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
“
Securities Act ” shall mean the Securities Act of
1933, or any successor thereto, as the same shall be amended from
time to time.
“ Shelf
Registration ” shall have the meaning assigned thereto in
Section 2(b) hereof.
“ Shelf
Registration Statement ” shall have the meaning assigned
thereto in Section 2(b) hereof.
“ Special
Interest ” shall have the meaning assigned thereto in
Section 2(c) hereof.
“ Trust
Indenture Act ” shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and
forms promulgated thereunder, all as the same shall be amended from
time to time.
Unless the context
otherwise requires, any reference herein to a “
Section ” or “ clause ” refers to a
Section or clause, as the case may be, of this Agreement, and the
words “ herein ,” “ hereof ”
and “ hereunder ” and other words of similar
import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
2.
Registration Under the Securities Act.
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(a)
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Except as set forth in Section 2(b)
below, the Company agrees to file under the Securities Act, no
later than 270 days after the Closing Date, one or
more
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registration
statements relating to an offer to exchange (each such registration
statement, an “ Exchange Registration Statement
”, and each such offer, an “ Exchange Offer
”) any and all of the Securities for a like aggregate
principal amount of junior subordinated debentures issued by the
Company, which junior subordinated debentures have provisions that
are substantially identical to the Securities (and are entitled to
the benefits of a trust indenture which is substantially identical
to the Indenture or is the Indenture and which has been qualified
under the Trust Indenture Act), except that they have been
registered with the Commission pursuant to an effective
registration statement under the Securities Act and do not contain
provisions restricting their transfer or for the additional
interest contemplated in Section 2(c) below (any such new junior
subordinated debentures hereinafter called “ Exchange
Securities ”). The Company agrees to use commercially
reasonable efforts to cause an Exchange Registration Statement to
become effective under the Securities Act no later than
360 days after the Closing Date. The Exchange Offers will be
registered under the Securities Act on the appropriate form and
will comply, in all material respects, with all applicable tender
offer rules and regulations under the Exchange Act. The Company
further agrees to use commercially reasonable efforts to commence
and complete each Exchange Offer promptly, but no later than
30 days after such Exchange Registration Statement has become
effective and exchange Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn on or
prior to the expiration of such Exchange Offer. An Exchange Offer
will be deemed to have been “ completed ” only
if the Exchange Securities received by holders other than
Restricted Holders in such Exchange Offer for Registrable
Securities are, upon receipt, transferable by each such holder
without restriction under the Securities Act and without material
restrictions under the blue sky or securities laws of a substantial
majority of the States of the United States of America. An Exchange
Offer shall be deemed to have been completed upon the earlier to
occur of (i) the Company having exchanged Exchange Securities
for all outstanding Registrable Securities pursuant to the Exchange
Offer and (ii) the Company having exchanged, pursuant to such
Exchange Offer, Exchange Securities for all Registrable Securities
that have been properly tendered and not withdrawn before the
expiration of such Exchange Offer, which shall be on a date that is
at least 20 business days following the commencement of such
Exchange Offer. The Company agrees (x) to include in an
Exchange Registration Statement a prospectus for use in any resales
by any holder of Exchange Securities that is a broker-dealer or any
other person with similar prospectus delivery requirements and
(y) to keep such Exchange Registration Statement effective for
a period (the “ Resale Period ”) beginning when
Exchange Securities are first issued in the Exchange Offer and
ending upon the earlier of the expiration of the 30th day after
such Exchange Offer has been completed or such time as such
broker-dealers or such other persons no longer own any Registrable
Securities. With respect to such Exchange Registration Statement,
such holders shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a),
(c) and (d) hereof. In the event the Company for any
reason does not complete the Exchange Offer as contemplated in this
Section 2(a), the Company shall have no further obligations
under this Agreement except as provided in Section 2(b) below and
for the payment of “ Special Interest ” as
provided in Section 2(c) below.
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(b)
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If
on or prior to the time an Exchange Offer is completed in respect
of the Securities, existing Commission interpretations are changed
such that the Exchange
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Securities
received by holders, other than Restricted Holders, in the Exchange
Offer are not or would not be, upon receipt, transferable by each
such holder without restriction under the Securities Act, the
Company shall, in lieu of conducting an Exchange Offer contemplated
by Section 2(a), file under the Securities Act no later than
360 days after the Closing Date, a “ shelf
” registration statement providing for the registration of,
and the sale on a continuous or delayed basis by the holders of all
of the Registrable Securities, pursuant to Rule 415 or any
similar rule that may be adopted by the Commission (such filing, a
“ Shelf Registration ” and such registration
statement, the “ Shelf Registration Statement
”). The Company agrees to use commercially reasonable efforts
to cause such Shelf Registration Statement to become or be declared
effective no later than 30 days after such Shelf Registration
Statement is filed and to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of the
second anniversary of the Closing Date or such time as all the
Registrable Securities covered by the Shelf Registration Statement
are sold thereunder; provided , however , that no
holder shall be entitled to be named as a selling securityholder in
such Shelf Registration Statement or to use the prospectus forming
a part thereof for resales of such Registrable Securities unless
such holder is an Electing Holder. The Company further agrees to
supplement or make amendments to such Shelf Registration Statement,
as and when required by the rules, regulations or instructions
applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration. In the event the
Shelf Registration Statement has not been filed or become or been
declared effective as contemplated in this Section 2(b), the
Company shall have no further obligations under this Agreement
except for the payment of “ Special Interest ”
as provided in Section 2(c) below.
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(c)
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In
the event that (i) the Exchange Offer is not completed within
390 days after the Closing Date or (ii) the Shelf
Registration Statement (to the extent required by Section 2(b)
hereof) has not become or been declared effective by the 390th day
after the Closing Date or (iii) any Exchange Registration
Statement or Shelf Registration Statement in respect of the
Securities required by Section 2(a) or 2(b) hereof is filed and
declared effective but shall thereafter either be withdrawn by the
Company or shall become subject to an effective stop order issued
pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as
specifically permitted herein) without being succeeded by a
post-effective amendment or a prospectus supplement to such
registration statement or an additional registration statement that
cures such failure and that is itself declared effective promptly
(each such event referred to in clauses (i) through (iii), a
“ Registration Default ” and each period during
which a Registration Default has occurred and is continuing until
the earlier of such time as no Registration Default is in effect or
the second anniversary of the Closing Date, a “
Registration Default Period ”), then, the Company
hereby agrees to pay to each holder of Registrable Securities
affected thereby, as liquidated damages for such Registration
Default, special interest (“ Special Interest
”), in addition to the Base Interest, which shall accrue at a
per annum rate of 0.125% for the first 90 days of the
Registration Default Period, and shall increase at a per annum rate
of 0.125% thereafter for the remaining portion of the Registration
Default Period; provided that the Company shall in no event
be required to pay Special Interest for more than one Registration
Default at any given
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time; and
provided further that in no event shall the Special Interest
rate exceed 0.25% per annum in the aggregate.
(d) The Company
shall take all actions reasonably necessary or advisable to be
taken by it to ensure that the transactions contemplated herein are
effected as so contemplated.
(e) Any reference
herein to a registration statement as of any time shall be deemed
to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any
time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such
time.
3.
Registration Procedures .
If the Company
files a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:
(a) At or before
the Effective Time of any Exchange Registration Statement or any
Shelf Registration Statement, as the case may be, in the event a
new indenture is used, the Company shall qualify the Indenture
under the Trust Indenture Act.
(b) In the event
that such qualification would require the appointment of a new
trustee under the Indenture, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions of the
Indenture.
(c) In connection
with the Company’s obligations with respect to any
registration of Exchange Securities as contemplated by Section 2(a)
(an “ Exchange Registration ”), if applicable,
the Company shall:
(i) use
commercially reasonable efforts to prepare and file with the
Commission no later than 270 days after the Closing Date, an
Exchange Registration Statement on any form which may be utilized
by the Company and which shall permit such Exchange Offer and
resales of Exchange Securities by broker-dealers during the Resale
Period to be effected as contemplated by Section 2(a), and use
commercially reasonable efforts to cause such Exchange Registration
Statement to become effective no later than 360 days after the
Closing Date;
(ii) use
commercially reasonable efforts to prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such
Exchange Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the prospectus included
therein (as then amended or supplemented), in
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conformity in
all material respects with the requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may request
prior to the expiration of the Resale Period, for use in connection
with resales of such Exchange Securities;
(iii) promptly
notify each broker-dealer that has requested or received copies of
the prospectus included in such registration statement
(A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of any request by the Commission for amendments or
supplements to such Exchange Registration Statement or prospectus
or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
Exchange Registration Statement under the Securities Act or the
initiation of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company contemplated
by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Exchange Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, or (F) at any
time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(iv) in the event
that the Company would be required, pursuant to Section
3(c)(iii)(F) above, to notify any broker-dealers holding Exchange
Securities, promptly prepare and furnish to each such holder a
reasonable number of copies of a prospectus supplemented or amended
so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein not misleading in
light of the circumstances then existing;
(v) use
commercially reasonable efforts to obtain the withdrawal or lifting
of any order suspending the effectiveness of such Exchange
Registration Statement or any post-effective amendment thereto at
the earliest practicable date;
(vi) use
commercially reasonable efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such
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jurisdictions
as are contemplated by Section 2(a) no later than the commencement
of an Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and
(C) take any and all other actions as may be reasonably
necessary or advisable to enable each broker-dealer holding
Exchange Securities to consummate the disposition thereof in such
jurisdictions; provided , however , that the Company
shall not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(c)(vi), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(vii) use
commercially reasonable efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or
local, which may be required in order for the Company to effect
such Exchange Registration and such Exchange Offer;
(viii) provide a
CUSIP number for all such Exchange Securities, not later than the
applicable Effective Time; and
(ix) use
commercially reasonable efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to
its securityholders as soon as practicable, an earning statement of
the Company and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(d) In connection
with the Company’s obligations with respect to any Shelf
Registration, if applicable, the Company shall:
(i) use
commercially reasonable efforts to prepare and file with the
Commission, within the time periods specified in Section 2(b),
a Shelf Registration Statement on any form which may be utilized by
the Company and which shall register all of the Registrable
Securities for resale by the holders thereof in accordance with
such method or methods of disposition as may be specified by such
of the holders as, from time to time, may be Electing Holders and
use commercially reasonable efforts to cause such Shelf
Registration Statement to become effective within the time periods
specified in Section 2(b);
(ii) mail the
Notice and Questionnaire to the holders of such Registrable
Securities on the date of the filing of such Shelf Registration
Statement; no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such holder has returned a completed
and signed Notice and Questionnaire to the Company by the deadline
for response set forth therein; provided , however ,
that holders of such Registrable Securities shall have
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at least 18
calendar days from the date on which the Notice and Questionnaire
is first mailed to such holders to return a completed and signed
Notice and Questionnaire to the Company;
(iii) after the
Effective Time of such Shelf Registration Statement, upon the
request of any holder of such Registrable Securities that is not
then an Electing Holder, promptly send a Notice and Questionnaire
to such holder; provided that the Company shall not be
required to take any action to name such holder as a selling
securityholder in such Shelf Registration Statement or to enable
such holder to use the prospectus forming a part thereof for
resales of Registrable Securities until such holder has returned a
completed and signed Notice and Questionnaire to the
Company;
(iv) use
commercially reasonable efforts to prepare and file with the
Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such Shelf
Registration Statement for the period specified in Section 2(b)
hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to
the form of such Shelf Registration Statement;
(v) use
commercially reasonable efforts to comply with the provisions of
the Securities Act with respect to the disposition of all of the
Registrable Securities covered by such Shelf Registration Statement
in accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide
(A) the Electing Holders, (B) the underwriters (which
term, for purposes of this Agreement, shall include a person deemed
to be an underwriter within the meaning of Section 2(a)(11) of
the Securities Act), if any, thereof, (C) any sales or placement
agent therefor, (D) counsel for any such underwriter or agent
and (E) not more than one counsel for all the Electing Holders
the opportunity to review and comment on such Shelf Registration
Statement for a period of 5 business days if practicable, or such
shorter period of time as is practicable and to review and promptly
comment on each amendment or supplement thereto;
(vii) for a
reasonable period prior to the filing of such Shelf Registration
Statement, and throughout the period specified in
Section 2(b), make available at reasonable times at the
Company’s principal place of business or another reasonable
place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Company that they
have a current intention to sell the Registrable Securities
pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the
officers and employees of the Company to respond to such inquiries,
as shall be reasonably necessary, to conduct a reasonable
investigation within the meaning of Section 11 of the
Securities Act; provided , however , that each such
party shall be required to
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maintain in
confidence and not to disclose to any other person any information
or records reasonably designated by the Company as being
confidential, until such time as (A) such information becomes
a matter of public record (whether by virtue of its inclusion in
such registration statement or otherwise), or (B) such person
shall be required to so disclose such information pursuant to a
subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of
such order, and only after such person shall have given the Company
prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an amendment to
such Shelf Registration Statement or an amendment or supplement to
such prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the Securities Act and the rules
and regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a material
fact necessary to make the statements therein not misleading in
light of the circumstances then existing;
(viii) advise each
of the Electing Holders, any sales or placement agent therefor and
any underwriter thereof (which notification may be made through any
managing underwriter that is a representative of such underwriter
for such purpose) (A) when such Shelf Registration Statement
or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any
request by the Commission for amendments or supplements to such
Shelf Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Shelf Registration
Statement under the Securities Act or the initiation of any
proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by
Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, or (F) if at
any time when a prospectus is required to be delivered under the
Securities Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment does
not conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(ix) use
commercially reasonable efforts to obtain the withdrawal or lifting
of any order suspending the effectiveness of such Shelf
Registration Statement or any post-effective amendment thereto at
the earliest practicable date;
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(x)
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if
requested by any managing underwriter or underwriters, any
placement or sales agent or any Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment
such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or
underwriters, such agent or such Electing Holder specifies should
be included therein relating to the terms of the sale of such
Registrable Securities, including information with respect to the
principal amount of such Registrable Securities being sold by such
Electing Holder or agent or to any underwriters, the name and
description of such Electing Holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification
of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
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(xi)
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furnish to each Electing Holder,
each placement or sales agent, if any, therefor, each underwriter,
if any, thereof and the respective counsel referred to in
Section 3(d)(vi) a copy of such Shelf Registration Statement,
each such amendment and supplement thereto (in each case including
all exhibits thereto (in the case of an Electing Holder of
Registrable Securities, upon request) and documents
incorporated
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