AMERICAN INTERNATIONAL GROUP, INC.
171,052,631 Shares
Common Stock, Par Value $2.50 Per Share
Underwriting Agreement
May 12, 2008
Citigroup Global Markets Inc.,
J.P. Morgan Securities Inc.,
As
Representatives of the several Underwriters
named in Schedule I hereto.
c/o
Citigroup Global Markets Inc.,
388 Greenwich
Street
New York, NY 10013
c/o
J.P. Morgan Securities Inc.
277 Park
Avenue
New York, New York 10172
Ladies
and Gentlemen:
American
International Group, Inc., a Delaware corporation (the “
Company ”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the firms named in
Schedule I hereto (the “ Underwriters ”),
for whom you are acting as Representatives (the “
Representatives ”), an aggregate of 171,052,631 shares
(the “ Firm Shares ”) of common stock, par value
$2.50 per share (the “Common Stock” ), of the
Company and, at the election of the Representatives acting on
behalf of the Underwriters, to issue and sell to the Underwriters
up to an additional 25,657,894 shares of Common Stock (the “
Optional Shares ”, and, together with the Firm Shares,
the “ Securities ”), solely to cover
over-allotments.
The
Company is concurrently publicly offering equity units (“
Units ”) consisting of a contract to purchase shares
of Common Stock and an unsecured debt obligation of the Company
(the “ Units Offering ”) through other
underwriters. The offering of the Securities is not contingent upon
the completion of the Units Offering; the Units Offering is not
contingent upon the offering of the Securities; and the Units are
not being offered together with the Securities.
1. The Company represents and
warrants to, and agrees with, each of the Underwriters that:
(a) Registration
Statements on Form S-3 (Registration Nos. 333-143992 and
333-106040) in respect of the Securities have been filed with the
Securities and Exchange Commission (the “ Commission
”); the latest filed of such registration statements
(Registration No. 333-143992), in the form heretofore
delivered to the Representatives (excluding exhibits to such
latest
filed registration statement, but including all documents
incorporated by reference in the prospectus describing Common Stock
included in that registration statement, the “ latest
filed registration statement ”), has been declared
effective by the Commission in such form; the earlier filed
registration statement also has been declared effective by the
Commission; other than a registration statement, if any, increasing
the size of the offering (a “ Rule 462(b)
Registration Statement ”), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the “
Act ”), which became effective upon filing, since the
delivery to the Representatives no other document with respect
thereto or document incorporated by reference therein has been
filed or transmitted for filing with the Commission (other than
filings by the Company under the Securities Exchange Act of 1934,
as amended (the “ Exchange Act ”), and other
than preliminary prospectuses, preliminary prospectus supplements
and other prospectuses filed pursuant to Rule 424(b) or
Rule 433 of the rules and regulations of the Commission under
the Act that relate to securities other than the Securities); and
no stop order suspending the effectiveness of the latest filed
registration statement or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (the basic prospectus
describing Common Stock filed as part of the latest filed
registration statement is hereinafter called the “ Basic
Prospectus ”; any preliminary prospectus (including the
Basic Prospectus as supplemented by any preliminary prospectus
supplement) relating to the Securities filed with the Commission
pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act is hereinafter called a “
Preliminary Prospectus” ; the various parts of the
latest filed registration statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
the documents incorporated by reference in the Basic Prospectus at
the time such registration statement became effective, and any
prospectus supplement relating to the Securities that is filed with
the Commission and deemed by virtue of Rule 430B to be part of
that registration statement, each as amended at the time that
registration statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the “
Registration Statement ”; the Basic Prospectus as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(c) hereof), is hereinafter called the
“ Pricing Prospectus ”; the form of the final
prospectus relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof is hereinafter called the “
Prospectus” but excluding any Statement of Eligibility
under the Trust Indenture Act of 1939, as amended; any reference
herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date
of such prospectus; any reference to any amendment or supplement to
the Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Exchange Act and incorporated therein, in each case after the date
of the Basic Prospectus, such Preliminary Prospectus or the
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act
relating to the Securities is hereinafter called an “
Issuer Free Writing Prospectus ”;
(b) No
order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary
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Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however , that this representation and warranty
shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for
use therein ;
(c) For
the purposes of this Agreement, the “ Applicable Time
” is 5:00 p.m. (Eastern time) on the date of this Agreement;
the Pricing Prospectus, as supplemented by the information
contained in the final term sheet prepared and filed pursuant to
Section 5(a) hereof, taken together (collectively, the “
Pricing Disclosure Package ”) as of the Applicable
Time, did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and each other Issuer Free Writing
Prospectus listed on Schedule II(a) hereto does not conflict
with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus, and each such other Issuer
Free Writing Prospectus, as supplemented by and taken together with
the Pricing Disclosure Package as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however , that this
representation and warranty shall not apply to statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(d) The
documents incorporated by reference in the Pricing Prospectus and
the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or, in the case of
an Annual Report on Form 10-K, omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or, in the case of any other document filed
under the Exchange Act, omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to (i) any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for
use therein, or (ii) any statement in any such document which
does not constitute part of the Registration Statement, Pricing
Prospectus or Prospectus pursuant to Rule 412 under the
Act;
(e) The
Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the
Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration
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Statement and any amendment thereto and as of its date as to the
Prospectus and any supplement thereto, contain an untrue statement
of a material fact or, in the case of the Registration Statement,
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or, in the
case of the Prospectus, omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to (i) any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by any Underwriter through the Representatives expressly
for use in the Prospectus or any amendment or supplement thereto,
or (ii) any statement which does not constitute part of the
Registration Statement or Prospectus pursuant to Rule 412
under the Act;
(f) The
Company and each of its Significant Subsidiaries (as defined in
Rule 1.02(w) of Regulation S-X) have been duly
incorporated or organized and are validly existing corporations or
other entities in good standing under the laws of their respective
jurisdiction of incorporation or organization and have full power
and authority to own their respective properties and to conduct
their respective businesses as described in the Prospectus, except,
in the case of any Significant Subsidiary, where the failure to be
so duly incorporated or organized, validly existing, in good
standing or have such power or authority would not, individually or
in the aggregate, have a Material Adverse Effect (as defined in
Section 1(j) below);
(g) Since
the date of the latest audited financial statements incorporated by
reference in the Basic Prospectus as amended or supplemented there
has not been (i) any material change in the capital stock
(other than as occasioned by Common Stock having been issued
pursuant to the Company’s employee stock purchase plans,
equity incentive plans and upon conversion of convertible
securities, repurchased by the Company pursuant to any previously
announced stock repurchase program or the Units Offering) or
long-term debt (other than as occasioned by the Units Offering and
the offering of approximately $5 billion of non-dilutive
capital securities), or (ii) any material adverse change in or
affecting the business, financial position, shareholders’
equity or results of operations of the Company and its consolidated
subsidiaries considered as an entirety, in each case, otherwise
than as set forth or contemplated in such Basic Prospectus as
amended or supplemented prior to the Applicable Time (any such
change described in clause (ii) is referred to as a “
Material Adverse Change ”);
(h) The
Securities have been duly authorized and, when issued and delivered
pursuant to this Agreement, the Securities will be duly and validly
issued, fully paid and nonassessable; and the Securities will
conform in all material respects to the descriptions thereof
contained in the Pricing Disclosure Package and in the
Prospectus;
(i) The
Company has an authorized equity capitalization as set forth in the
Pricing Prospectus;
(j) The
issue and sale of the Securities and the compliance by the Company
with all of the provisions of this Agreement, and the consummation
of the transactions herein contemplated, will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which
the Company is a party or by which the Company is bound or to which
any of the property or assets of the Company is subject, or result
in any violation of any statute or any order, rule or regulation of
any court or governmental agency or body having
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jurisdiction over the Company or any of its properties, except, in
each case, for such conflicts, breaches, defaults and violations
that would not have a material adverse effect on the business,
financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries considered as an
entirety (a “ Material Adverse Effect ”) or
affect the validity of the Securities, nor will such action result
in any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws of the Company; and no
consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
is required by the Company for the issue and sale of the Securities
or the consummation by the Company of the transactions contemplated
by this Agreement, except the listing of the Securities on the New
York Stock Exchange and except such consents, approvals,
authorizations, orders, registrations or qualifications the failure
to obtain or make would not have a Material Adverse Effect or
affect the validity of the Securities, and such consents,
approvals, authorizations, orders, registrations or qualifications
as have been, or will have been prior to the First Time of Delivery
(as defined in Section 4 hereof), obtained under the Act and
such consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue
Sky laws (including insurance laws of any state relating to offers
and sales of securities in such state) in connection with the
purchase and distribution of the Securities by the
Underwriters;
(k) The
consolidated historical financial statements and schedules of the
Company and its consolidated subsidiaries included in the
Preliminary Prospectus, the Prospectus and the Registration
Statement present fairly, in all material respects, the financial
condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form, in
all material respects, with the applicable accounting requirements
of the Act and have been prepared in conformity with U.S. generally
accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted
therein);
(l) The
Company and its subsidiaries maintain “disclosure controls
and procedures” (as such term is defined in
Rule 13a-15(e) under the Exchange Act); as disclosed in the
Registration Statement, Preliminary Prospectus and the Prospectus,
such disclosure controls and procedures were not effective at
March 31, 2008;
(m) Neither
the Company nor any of its Significant Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its Significant Subsidiaries is
currently subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department, except for
any such sanction that individually or in the aggregate would not
have a Material Adverse Effect;
(n) The
Company and its Significant Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that
are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as
described in the Registration Statement, the Preliminary Prospectus
and the Prospectus, except where the failure to possess or make the
same would not, individually or in the aggregate, have a Material
Adverse Effect; and except as described in the Registration
Statement, the Preliminary Prospectus and the Prospectus, neither
the Company nor any of its Significant Subsidiaries has received
notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe
that any such license, certificate, permit or authorization will
not be renewed in the ordinary course, in each case, except where
the failure to
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posses
the same or the modification to the same would not, individually or
in the aggregate, have a Material Adverse Effect; and
(o) There
is no action, suit or proceeding pending, or to the knowledge of
the executive officers of the Company, threatened against the
Company or any of its subsidiaries, which has, or may reasonably be
expected in the future to have, a Material Adverse Effect, except
as set forth or contemplated in the Pricing Disclosure Package or
the Prospectus as amended or supplemented in accordance with
Section 5(a) hereof.
2. (a) Subject to the terms
and conditions herein set forth, (i) the Company agrees to
issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
the Company, at the purchase price set forth in Exhibit A
to Schedule II, the number of Firm Shares set forth opposite
such Underwriter’s name in Schedule I and (ii) in
the event and to the extent that the Representatives shall exercise
the election to purchase Optional Shares as provided below, the
Company agrees to issue and sell to the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase
from the Company, at the same purchase price set forth in clause
(i) of this Section 2(a), the number of the Optional
Shares as to which such election shall have been exercised (to be
adjusted by the Representatives, if necessary, so as to eliminate
fractions of shares of Common Stock) determined by multiplying the
number of such Optional Shares by a fraction, the numerator of
which is the maximum number of Firm Shares which such Underwriter
is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which
is the maximum number of Firm Shares that all of the Underwriters
are entitled to purchase hereunder.
(b) Each
Underwriter represents and agrees with the Company that it will
comply with or observe any restrictions or limitations set forth in
the Prospectus as amended or supplemented on persons to whom, or
the jurisdictions in which, or the manner in which, the Securities
may be offered, sold, resold or delivered.
(c) The
Company hereby grants to the Underwriters the one-time right to
purchase at the election of the Representatives up to 25,657,894
Optional Shares, solely for the purpose of covering
over-allotments, if any, in connection with the offer and sale of
the Firm Shares, at the purchase price set forth in clause
(i) of Section 2(a). Any such election to purchase
Optional Shares may be exercised by written notice from the
Representatives to the Company, given within a period of
30 days after the date of this Agreement, setting forth the
number of Optional Shares to be purchased and the date on which
such Optional Shares are to be delivered, as determined by the
Representatives, which shall in no event be earlier than the First
Time of Delivery (as defined in Section 4 hereof) or, unless
the Representatives and the Company otherwise agree in writing,
earlier than three or later than five New York Business Days after
the date of such notice. For the purposes of this Agreement,
“ New York Business Day ” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in New York are generally authorized
or obligated by law or executive order to close.
3. Upon the authorization by the
Representatives of the release of such Securities, the several
Underwriters propose to offer such Securities for sale upon the
terms and conditions set forth in the Prospectus.
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4. The Company will deliver the
Securities to one or more of the Representatives for the account of
each Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to
the Representatives at least twenty-four hours in advance, by
causing Wells Fargo Bank, N.A., as registrar, to register the
Securities in global book entry form in the name of Cede & Co.,
or such other nominee as The Depository Trust Company (“
DTC ”) may designate, and shall cause DTC to credit
the Securities to the account of one or more of the Representatives
at DTC. The time and date of such delivery and payment, with
respect to the Firm Shares, shall be 9:30 a.m., New York City time,
on May 16, 2008 or such other time and date as the
Representatives and the Company may agree upon in writing, and,
with respect to the Optional Shares, shall be 9:30 a.m., New York
City time, on the date specified by the Representatives in the
written notice given by the Representatives of the
Underwriters’ election to purchase the Optional Shares, or at
such other time and date as the Representatives and the Company may
agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the “ First Time of Delivery
”, such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called an “
Optional Time of Delivery ”, and each such time and
date for delivery is herein called a “ Time of
Delivery ”.
The
documents to be delivered at a Time of Delivery by or on behalf of
the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Securities, will be delivered at the offices
of Sullivan & Cromwell LLP, 125 Broad Street, New York, NY
10004 (the “ Closing Location ”), and the
Securities will be credited to the account of the Representatives
at DTC, all at such Time of Delivery. A meeting will be held at the
Closing Location at 4:00 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting
the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties
hereto.
5. The Company covenants and
agrees with each of the Underwriters:
(a) To
prepare the Prospectus in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission’s close of business on the
second business day following the date of this Agreement; to make
no further amendment or supplement (other than an amendment or
supplement as a result of filings by the Company under the Exchange
Act and other than amendments or supplements in connection with the
Units Offering or offerings of unsecured debt securities of or
guaranteed by the Company) to the Registration Statement or the
Prospectus prior to the First Time of Delivery which shall be
disapproved by the Representatives promptly after reasonable notice
thereof; between the signing of this Agreement and the First Time
of Delivery, to give reasonable advance notice to the
Representatives of any filings by the Company under the Exchange
Act that are incorporated by reference into the Prospectus and any
filings by the Company under Item 2.02 or 7.01 of Current
Report on Form 8-K; between the signing of this Agreement and the
First Time of Delivery, 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 amendment or supplement to the Prospectus has been filed (other
than an amendment or supplement as a result of filings by the
Company under the Exchange Act and other than amendments or
supplements in connection with the Units Offering or offerings of
unsecured debt securities of or guaranteed by the Company) and to
furnish the Representatives with copies thereof; to prepare a final
term sheet, containing solely a description of the Securities, in
the form set forth in Exhibit A to Schedule II hereto and
to file such term sheet pursuant to Rule 433(d) under the Act
within the time required by
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such
Rule; to file promptly all other material required to be filed by
the Company with the Commission pursuant to Rule 433(d) under the
Act; 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 (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act)
is required in connection with the offering or sale of the
Securities, and during such same period 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 Prospectus or
any amended Prospectus has been filed with the Commission (other
than an amendment or supplement as a result of filings by the
Company under the Exchange Act and other than the filing of
prospectuses, preliminary prospectuses, preliminary prospectus
supplements, issuer free-writing prospectuses and other documents
pursuant to Rule 424(b) or Rule 433 under the Act that relate
to the Units Offering or securities other than the Securities), of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the
use of any such prospectus relating to the Securities or suspending
any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) Promptly
from time to time to take such action as the Representatives may
reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings in such jurisdictions
for as long as may be necessary to complete the distribution of the
Securities; provided , however , that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction;
(c) From
time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the
expiration of nine months after the time of issuance of the
Prospectus in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an 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 when such Prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is delivered, not misleading, or
if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to
notify the Representatives and upon their request to file such
document and 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 Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and
in case any Underwriter is required to deliver a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act)
in connection with sales of any of the Securities at any time nine
months or more after the time of issue of the Prospectus, upon the
request of the Representatives but at the
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expense
of such Underwriter, to prepare and deliver to such Underwriter as
many written and electronic copies as the Representatives may
request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To
make generally available to its security holders as soon as
practicable, but in any event not later than sixteen months after
the effective date of the Registration Statement (as defined in
Rule 158(c)), 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 of the Commission
thereunder (including, at the option of the Company,
Rule 158);
(e) During
the period beginning from the date hereof, and continuing to and
including the date 90 days after the date hereof or such
earlier time as the Representatives may notify the Company, not to
offer, sell, contract to sell, grant any option to purchase, or
otherwise dispose of, or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or
any person in privity with the Company, directly or indirectly, or
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 in respect of, any shares of
Common Stock, or any options or warrants to purchase any shares of
Common Stock, or any securities convertible into, exchangeable for
or that represent the right to receive shares of Common Stock , or
otherwise publicly announce an intention to effect any such
transaction (other than (1) the offer and sale of Securities
pursuant to this Agreement and the Units Offering, (2) the
grant of awards pursuant to the Company’s employee benefit,
employee stock purchase and other similar plans, in each case, as
existing on the date hereof (the “ Employee Benefit
Plans ”), (3) the offering, sale, settlement or
issuance of securities pursuant to any award or security issued
under or pursuant to an Employee Benefit Plan or the Assurance
Agreement, by the Company in favor of eligible employees, dated as
of June 27, 2005, relating to certain obligations of Starr
International Company, Inc., (4) the issue of shares of Common
Stock or options, contracts or rights to acquire Common Stock in
connection with the acquisition of a business or assets so long as
the total number of shares of Common Stock issued or issuable does
not exceed 3% of AIG’s then outstanding shares of Common
Stock, or (5) with the consent of the Representatives);
and
(f) To
use all commercially reasonable efforts to ensure that, no later
than the First Time of Delivery, the Securities will be listed on
the New York Stock Exchange.
6. (a) The Company and each
Underwriter agree that the Underwriters may prepare and use one or
more preliminary term sheets relating to the Securities containing
customary information; provided that such information has
been approved by the Company before the first communication with
prospective investors in the Securities containing such information
is used;
(b) Each
Underwriter represents that it has not and will not use, authorize
use of, refer to, or participate in the planning for use of, any
written communication that constitutes an offer to sell or the
solicitation of an offer to buy the Securities other than
(A) any written communication permitted under subparagraph
(a) above, (B) the final term sheet prepared and filed
pursuant to Section 5(a) hereof, or (C) any written
communication prepared by such Underwriter and approved in writing
by the Company in advance;
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(c) The
Company represents to the Underwriters that it has not and will not
use, authorize use of, refer to, or participate in the planning for
use of, any written communication that constitutes an offer to sell
or the solicitation of an offer to buy the Securities other than
(A) any written communication permitted under subparagraph
(a) above, (B) the final term sheet prepared and filed
pursuant to Section 5(a) hereof, (C) a press release or other
announcement relating to the Securities that complies with
Rule 134 or Rule 135 under the Act and that the Company
issues after giving notice to the Representatives of its intent to
issue a press release, or (D) any written communication
approved by the Representatives in advance in writing;
(d) Any
such free writing prospectus the use of which has been consented to
by the Company or the Representatives, as the case may be
(including the final term sheet prepared and filed pursuant to
Section 5(a) hereof), is listed on Schedule II(a)
hereto;
(e) The
Company represents and agrees that it has complied and will comply
with the requirements of Rule 433 under the Act applicable to
any Issuer Free Writing Prospectus, including timely filing with
the Commission, where required, and legending; and
(f) The
Company agrees that if at any time following the issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a
result of which such Issuer Free Writing Prospectus would conflict
with the information in the Registration Statement, the Pricing
Prospectus or the Prospectus, or would include an 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 then prevailing, not misleading, the Company will, if
the Underwriters are then required to deliver a prospectus under
the Act in respect of sales of Securities (or, in lieu thereof, the
notice referred to in Rule 173 under the Act), give prompt
notice thereof to the Representatives and, if requested by the
Representatives, will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document
which will correct such conflict, statement or omission;
provided , however , that this representation and
warranty 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
an Underwriter through the Representatives expressly for use
therein.
7. 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 the Company’s counsel and accountants in
connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing
and filing of the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Pricing Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Underwriters; (ii) the cost of printing,
word-processing or reproducing this Agreement, any Blue Sky and
Legal Investment Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and
disbursements of the Underwriters’ counsel in connection with
such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any filing fees incident to any
required review and clearance by the Financial Industry Regulatory
Authority of the terms of the sale of the Securities; (v) the
fees and expenses of the Company’s registrar and transfer
agent; and (vi) all other costs and expenses incident to the
performance of its obligations hereunder which are
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not
otherwise specifically provided for in this Section 7, but the
Company shall not in any event be liable to any of the Underwriters
for damages on account of loss of anticipated profits from the sale
by them of the Securities. It is understood, however, that, except
as provided in this Section 7, Section 9 and
Section 12 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
8. The obligations of the
Underwriters shall be subject, in the discretion of the
Representatives, to the condition that all representations and
warranties (except in the case of the Optional Time of Delivery the
representations and warranties in Sections 1(c), 1(g) and
1(o)) and other statements of the Company herein shall be true and
correct, at and as of each Time of Delivery (it being understood,
however, that in the case of the Optional Time of Delivery the
representations and warranties in Sections 1(h) and 1(j) shall be
limited to the Optional Shares), the condition that the Company
shall have performed, in all material respects, all of its
obligations hereunder theretofore to be performed and the following
additional conditions:
(a) 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 or, to the knowledge of the executive officers of
the Company, shall be contemplated by the Commission; the
Prospectus and each Issuer Free Writing Prospectus shall have been
timely filed with the Commission under the Act (in the case of an
Issuer Free Writing Prospectus to the extent required by
Rule 433 under the Act) and all requests for additional
information on the part of the Commission shall have been complied
with to the reasonable satisfaction of the Representatives;
(b) Davis
Polk & Wardwell, counsel to the Underwriters, shall have
furnished to the Representatives such opinion, dated each Time of
Delivery, with respect to the validity of the Securities, the
Registration Statement, the Pricing Disclosure Package, the
Prospectus, and other related matters as the Representatives may
reasonably request (it being understood, however, that in the case
of the Optional Time of Delivery, that the opinion shall only cover
validity of the Optional Shares), and the Company shall have
furnished to such counsel such documents as they reasonably request
to enable them to pass upon such matters;
(c) Sullivan
& Cromwell LLP, counsel for the Company, shall have furnished
to the Representatives their opinion or opinions, dated each Time
of Delivery, to the effect set forth in Schedule III hereto
(it being understood, however, that in the case of the Optional
Time of Delivery, that the opinion shall only cover the opinion in
paragraph (1) and, with respect to the Optional Shares, the
opinion in paragraph (2) set forth in Schedule III
hereto);
(d) Kathleen
E. Shannon, Senior Vice President, Secretary and Deputy General
Counsel of the Company, shall have furnished to the Representatives
her opinion, dated each Time of Delivery, to the effect set forth
in Schedule IV hereto (it being understood, however, that in
the case of the Optional Time of Delivery, that the opinion shall
only cover the opinion in paragraphs (i), (ii) and (iii) set
forth in Schedule IV hereto and shall be limited to the
Optional Shares);
(e) On
the date of the Prospectus at a time prior to the execution of this
Agreement and the First Time of Delivery, the independent
registered public accounting firm who
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have
audited the financial statements of the Company and its
subsidiaries incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus shall
have furnished to the Representatives a letter, dated the
respective dates of delivery thereof, to the effect set forth in
Schedule V hereto, and with respect to such letter dated such
Time of Delivery, as to such other matters as the Representatives
may reasonably request and in form and substance satisfactory to
the Representatives;
(f) Since
the respective dates as of which information is given in the
Pricing Disclosure Package (excluding any amendment or supplement
thereto) and prior to the First Time of Delivery, there shall not
have been in the reasonable judgment of the Representatives any
Material Adverse Change, otherwise than as set forth or
contemplated in the Prospectus (excluding any amendment or
supplement thereto);
(g) The
Company shall have furnished or caused to be furnished to the
Representatives a certificate of the Chief Executive Officer, the
President, any Vice Chairman, any Executive or Senior Vice
President or any Vice President and a principal financial or
accounting officer of the Company, dated each Time of Delivery, in
which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement (except in the case of
the Optional Time of Delivery the representations and warranties in
Sections 1(c), 1(g) and 1(o), and it being understood,
however, that in the case of the Optional Time of Delivery, the
representations and warranties in Section 1(h) and 1(j) shall be
limited to the Optional Shares) are true and correct, in all
material respects, as of each Time of Delivery, that the Company
has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied, in all material respects, at
or prior to each Time of Delivery, that no stop order suspending
the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
threatened by the Commission, and that, with respect to the First
Time of Delivery only, since the respective dates as of which
information is given in the Pricing Disclosure Package, there has
not been any Material Adverse Change, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented in
accordance with Section 5(a) hereof;
(h) On
or after the date hereof and prior to the First Time of Delivery,
there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities
generally on the New York Stock Exchange if the effect of any such
event, in the reasonable judgment of the Representatives, is to
make it impracticable or inadvisable to proceed with the purchase
by the Underwriters of the Securities from the Company; (ii) a
general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities;
(iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war, other than any such outbreak, escalation or
declaration arising out of or relating to the U.S. war on terrorism
that does not represent a significant departure from the conditions
that exist at the date hereof, if the effect of any such event in
the reasonable judgment of the Representatives is to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated by the Pricing Disclosure Package or the Prospectus as
amended or supplemented in accordance with Section 5(a) hereof;
(iv) the suspension of trading in the Common Stock on the New
York Stock Exc
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