STOCKHOLDERS AGREEMENT by and among
Exhibit 10.1
EXECUTION VERSION
by and among
SAFG RETIREMENT SERVICES, INC.,
AMERICAN INTERNATIONAL GROUP, INC.
AND
ARGON HOLDCO LLC
Dated as of November 2, 2021
Table of Contents
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ARTICLE I INTRODUCTORY MATTERS |
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1.1 |
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Defined Terms |
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1.2 |
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Interpretation |
7 |
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ARTICLE II CORPORATE GOVERNANCE MATTERS |
8 |
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2.1 |
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Board Composition |
8 |
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2.2 |
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Compensation |
10 |
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2.3 |
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Other Rights of Stockholder Designees |
10 |
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2.4 |
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Board Meetings |
11 |
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2.5 |
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Certain Actions |
11 |
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2.6 |
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Indemnification |
13 |
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ARTICLE III INFORMATION |
14 |
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3.1 |
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Information Rights |
14 |
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3.2 |
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Information Protection |
15 |
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3.3 |
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Corporate Opportunities |
16 |
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ARTICLE IV REGISTRATION RIGHTS |
17 |
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4.1 |
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Demand Registrations |
17 |
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4.2 |
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Piggyback Registrations |
18 |
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4.3 |
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Registration Expenses |
19 |
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4.4 |
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Registration Procedures |
20 |
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4.5 |
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Registration Limitations |
21 |
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4.6 |
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Indemnification |
22 |
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4.7 |
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Rule 144 Reporting |
24 |
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ARTICLE V EQUITY LOCK-UP |
24 |
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5.1 |
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Sales and Transfers |
24 |
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5.2 |
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Drag-Along Right |
26 |
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5.3 |
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Tag-Along Right |
27 |
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ARTICLE VI ADDITIONAL COVENANTS |
30 |
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6.1 |
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Exchange Right |
30 |
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6.2 |
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Spin-Offs or Split-Offs |
32 |
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6.3 |
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Standstill |
32 |
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6.4 |
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Preemptive Rights |
33 |
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6.5 |
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Dividend Policy |
34 |
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6.6 |
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Certain Actions |
34 |
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6.7 |
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Certain Transactions |
35 |
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6.8 |
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Logo |
35 |
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ARTICLE VII GENERAL PROVISIONS |
35 |
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7.1 |
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Notices |
35 |
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7.2 |
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Amendment; Waiver |
37 |
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7.3 |
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Assignment |
37 |
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7.4 |
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Third Parties |
37 |
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7.5 |
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Governing Law |
37 |
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7.6 |
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Arbitration; Jurisdiction; Waiver of Jury Trial |
38 |
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7.7 |
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Specific Performance |
39 |
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7.8 |
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Entire Agreement |
39 |
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7.9 |
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Severability |
39 |
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7.10 |
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Table of Contents, Headings and Captions |
39 |
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7.11 |
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Grant of Consent |
39 |
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7.12 |
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Counterparts |
39 |
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7.13 |
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No Recourse |
40 |
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7.14 |
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Certain Adjustments |
40 |
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this “Agreement”), dated as of November 2, 2021, is by and among SAFG Retirement Services, Inc., a Delaware corporation (the “Company”), American International Group, Inc., a Delaware corporation (“AIG”), and Argon Holdco LLC, a Delaware limited liability company (the “Stockholder”).
ARTICLE I
INTRODUCTORY MATTERS
“AAA” has the meaning set forth in Section 7.6(a).
“Acquirer” has the meaning set forth in Section 6.1(c).
“Adjusted Book Value” means shareholder’s equity, excluding Accumulated Other Comprehensive Income and adjusted for the cumulative unrealized gains and losses related to Fortitude Re funds withheld assets, calculated using the same methodologies, adjustments, procedures and assumptions as the Calculation Methodologies.
“Adjusted Separation Balance Sheet” means the balance sheet set forth on Section 3.6(d)(iii) of the Seller Disclosure Schedule.
“Affiliate” of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, such first Person. For the purposes of this definition, “control,” when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly through the ownership of voting securities, by contract, or otherwise, and the terms “controlling” and “controlled” have the meanings correlative to the foregoing. For the avoidance of doubt, neither the Company nor any Company Subsidiary shall be deemed to be an “Affiliate” of the Stockholder. For purposes of this Agreement (other than Sections 3.2, 3.3 and 7.13), neither Blackstone nor any investment funds or investment vehicles affiliated with, or managed or advised by, Blackstone or its affiliates or any portfolio company (as such term is commonly understood in the private equity industry) or investment of Blackstone or of any such investment fund or investment vehicle shall be deemed to be an “Affiliate” of the Stockholder.
“Affiliate Contract” means any material Contract between any of the Company or any Company Subsidiary, on the one hand, and AIG or any Subsidiary of AIG (other than the Company or any Company Subsidiary), on the other hand.
“Affordable Housing Transaction” means the transactions contemplated by that certain Purchase Agreement, dated as of July 14, 2021, by and between AIG and Aztec Holdco LLC.
“AGL” means American General Life Insurance Company.
“AIG” has the meaning set forth in the Preamble.
“AIG Common Stock” means the common stock, par value $2.50 per share, of AIG and, to the extent issued pursuant to Section 6.1(b), any non-voting common stock or non-voting preferred stock of AIG.
“Applicable Law” means any law, statute, ordinance, written rule or regulation, order, injunction, judgment, decree, constitution or treaty enacted, promulgated, issued, enforced or entered by any Governmental Entity applicable to any Person or such Person’s businesses, properties, assets or rights, as may be amended from time to time.
“Beneficially Own,” “Beneficially Owned” or “Beneficial Ownership” has the meaning set forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act.
“Blackout Period” means (i) until a Fall-Away Event, the Company’s regularly quarterly restricted trading period during which directors and executive officers of the Company are not permitted to trade under the xxxxxxx xxxxxxx policy of the Company then in effect or (ii) a reasonable period not in excess of the applicable limits specified below in the event that the Company determines in good faith that any registration or sale pursuant to any registration statement would reasonably be expected to interfere with any bona fide financing of, or material transaction under consideration by, the Company, require disclosure of material information that has not been disclosed to the public, the premature disclosure of which would materially adversely affect the Company, or otherwise materially adversely affect the Company. Notwithstanding anything otherwise to the contrary, with respect to any Blackout Periods described in clause (ii) above, (A) until a Fall-Away Event, the length of any such Blackout Period shall not exceed thirty (30) days and, in any (12) month period, (x) the number of such Blackout Periods shall not exceed three (3) and (y) the length of all such Blackout Periods shall not exceed ninety (90) days in the aggregate, and (B) following a Fall-Away Event, the length of any such Blackout Period shall not exceed sixty (60) days and, in any (12) month period, (x) the number of such Blackout Periods shall not exceed three (3) and (y) the length of all such Blackout Periods shall not exceed one-hundred-and-twenty (120) days in the aggregate.
“Blackstone” means Blackstone Inc.
“Blackstone Related Persons” has the meaning set forth in Section 3.2.
“Board” means the board of directors of the Company.
“Board Materials” has the meaning set forth in Section 2.3.
“Business Day” means any day other than a Saturday, a Sunday or any other day on which banking institutions in New York, New York are required or authorized by Applicable Law to be closed.
“Bylaws” means the Bylaws of the Company immediately following the Closing, as amended, supplemented, restated or otherwise modified from time to time thereafter in accordance with the terms thereof and hereof.
“Calculation Methodologies” are those line-item adjustments, methodologies, procedures and assumptions set forth on Section 1.1(d) of the Seller Disclosure Schedule.
“Change of Control” means, with respect to any specified Person, the acquisition, directly or indirectly, by any other Person or group (within the meaning of Section 13(d) of the Exchange Act) of other Persons of more than 50% of the outstanding equity of such specified Person or all or substantially all of the consolidated assets of such specified Person and its Subsidiaries, taken as a whole, in each case, whether through a merger, consolidation, dissolution, liquidation, recapitalization, share exchange, business combination or similar transaction involving such specified Person, other than any such acquisition by any other Person or group of other Persons where more than 50% of the outstanding equity of the ultimate parent entity of such other Person or group is, immediately after such acquisition, Beneficially Owned by the equityholders of such specified Person immediately prior to such acquisition.
“Charter” means the Certificate of Incorporation of the Company immediately following the Closing, as amended, supplemented, restated or otherwise modified from time to time thereafter in accordance with the terms thereof and hereof.
“Closing” means the closing of the Share Purchase pursuant to the SPA.
“Code” means the Internal Revenue Code of 1986.
“Commitment Letter” means that certain Commitment Letter, dated November 2, 2021 (as may be amended or modified from time to time), among the Company, the Investment Manager and AIG.
“Company” has the meaning set forth in the Preamble.
“Company Business” means the life and retirement insurance business, with such adjustments as reflected in the Separation Balance Sheet, as conducted by AIG and its Subsidiaries as of immediately prior to the date of the SPA.
“Company Common Stock” means the Class A common stock, par value $1.00 per share, of the Company and the Class B common stock, par value $1.00 per share, of the Company.
“Contract” means any contract, agreement, indenture, note, bond, loan, instrument, license or other enforceable arrangement or agreement.
“Demand Registrations” has the meaning set forth in Section 4.1(a).
“Director” means any member of the Board.
“Drag-Along Acquirer” has the meaning set forth in Section 5.2(a).
“Drag-Along Notice” has the meaning set forth in Section 5.2(a).
“Drag-Along Sale” has the meaning set forth in Section 5.2(a).
“Exchange Act” means the Securities Exchange Act of 1934.
“Exchange Consideration” equals (i) the Exchange Value divided by (ii) the VWAP as of the date of the exchange.
“Exchange Right” has the meaning set forth in Section 6.1(b).
“Exchange Shares” has the meaning set forth in Section 6.1(b).
“Exchange Value” equals (i) a number equal to a fraction, expressed as a percentage, the numerator of which is the aggregate number of Exchange Shares being exchanged at such time and the denominator of which is the aggregate number of shares of Company Common Stock issued and outstanding as of the date on which any notice of exchange has been made multiplied by (ii) 1.1x Adjusted Book Value of the Company as of the month-end prior to the date on which any such exchange notice has been made, calculated in a manner consistent with the Adjusted Separation Balance Sheet.
“Fall-Away Event” means the first date on or after the date hereof on which the Stockholder ceases to hold 50% or more of the Company Common Stock held by the Stockholder as of the Closing (excluding shares of Company Common Stock repurchased by the Company from the Stockholder for the purposes of ensuring that the Stockholder holds less than 9.9% of the outstanding Company Common Stock).
“Governmental Entity” means any domestic or foreign court, tribunal, commission or governmental authority, instrumentality (including any legislature, commission, regulatory or administrative agency, governmental branch, bureau or department) or agency or any self-regulatory body.
“Identified Persons” has the meaning set forth in Section 3.3(a).
“Indemnified Party” has the meaning set forth in Section 4.6(c).
“Indemnifying Party” has the meaning set forth in Section 4.6(c).
“Independent Director” means a Director who qualifies as an independent director within the meaning of Section 303A of the New York Stock Exchange Listed Company Manual (or, if the Company Common Stock has a primary listing on a stock exchange that is not the New York Stock Exchange, the rules and listing standards of such stock exchange).
“Information” has the meaning set forth in Section 3.1.
“Insurance Company” means any Subsidiary of the Company that is required to be licensed as an insurer or reinsurer.
“Investment Manager” means Blackstone ISG-I Advisors L.L.C., a Delaware limited liability company.
“IPO” means the consummation of an initial public offering of shares of Company Common Stock in connection with which such shares of Company Common Stock become listed on the New York Stock Exchange or the Nasdaq Stock Market, whether pursuant to an initial underwritten public offering of Company Common Stock that is registered under the Securities Act or a distribution of Company Common Stock by AIG to existing equityholders that would result in securities of the Company being registered under the Exchange Act.
“Long-Form Registrations” has the meaning set forth in Section 4.1(a).
“Master SMA Agreements” means those certain Master SMA Agreements set forth on Exhibit A of the Commitment Letter (as such agreements may be amended or modified from time to time) between, on the one hand, AGL, and certain current or future life insurance company Subsidiaries and/or Affiliates (each, as defined in the Commitment Letter) of AGL that are or may become (including, without limitation, pursuant to Section 6(d) of the Commitment Letter) party to such Master SMA Agreements, and, on the other hand, the Investment Manager.
“New Securities” has the meaning set forth in Section 6.4(a).
“NewCo” has the meaning set forth in Section 6.2.
“Non-Employee Directors” has the meaning set forth in Section 3.3(a).
“Observer” has the meaning set forth in Section 2.1(f).
“Person” means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization, Governmental Entity or other entity.
“Piggyback Registration” has the meaning set forth in Section 4.2(a).
“Preemptive Rights Election Period” has the meaning set forth in Section 6.4(c).
“Preemptive Rights Exercise Notice” has the meaning set forth in Section 6.4(c).
“Preemptive Rights Notice” has the meaning set forth in Section 6.4(b).
“Preemptive Rights Portion” has the meaning set forth in Section 6.4(a).
“Prospective Subscriber” has the meaning set forth in Section 6.4(a).
“Purchased Shares” has the meaning set forth in the Recitals.
“Registrable Securities” means (a) the Company Common Stock held by the Stockholder and (b) any other securities issued in respect of the securities described in clause (a) of this definition, including by way of a dividend, distribution or equity split or in connection with an exchange or a combination of shares, recapitalization, or reclassification. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities at the earliest date when they (i) have been distributed to the public pursuant to an offering registered under the Securities Act, (ii) have been sold to the public in compliance with Rule 144 (or any similar or successor rule then in force) or (iii) have been repurchased by the Company or any Subsidiary.
“Registration Expenses” has the meaning set forth in Section 4.3.
“Restriction Period” means the period commencing on the date following an IPO and ending on the fifth anniversary of the closing of the IPO.
“SEC” means the U.S. Securities and Exchange Commission or any successor agency.
“Securities Act” means the Securities Act of 1933.
“Sell” means, with respect to Company Common Stock (including the Purchased Shares) or AIG Common Stock, as applicable, to, directly or indirectly, (i) sell, pledge, offer to sell or pledge, contract to sell or pledge, sell or grant any option, right or warrant to purchase, purchase or acquire any option to sell, or otherwise dispose or transfer any such securities or any securities convertible into or exchangeable or exercisable for such securities or (ii) enter into any swap, derivative or any other similar agreement or any similar transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of such securities, whether any such swap, derivative or other similar transaction is to be settled by delivery of such securities or other securities, in cash or otherwise. “Sale” has the meaning correlative to the foregoing.
“Seller Disclosure Schedule” means the disclosure schedule (including any attachments thereto) delivered by AIG to the Stockholder in connection with, and constituting a part of, the SPA.
“Separation” has the meaning set forth in the Separation Principles.
“Separation Balance Sheet” means the balance sheet set forth on Section 3.6(d)(ii) of the Seller Disclosure Schedule.
“Separation Documentation” means the separation agreement and other customary agreements for a separation on terms consistent with the Separation Principles.
“Separation Principles” means the separation principles set forth in Section 5.9 of the Seller Disclosure Schedule.
“Share Purchase” has the meaning set forth in the Recitals.
“Shelf Registration” has the meaning set forth in Section 4.1(a).
“Shelf Take-down” has the meaning set forth in Section 4.1(b).
“SPA” has the meaning set forth in the Recitals.
“Stockholder” has the meaning set forth in the Preamble.
“Stockholder Designee” has the meaning set forth in Section 2.1(c).
“Stockholder Representatives” has the meaning set forth in Section 3.1.
“Subsidiary” of any Person at the time in question means another Person more than 50% of the total combined voting power of all classes of capital stock or other voting interests of which, or more than 50% of the equity securities of which, is at such time owned directly or indirectly by such first Person.
“Tag-Along Acquirer” has the meaning set forth in Section 5.3(a).
“Tag-Along Exercise Notice” has the meaning set forth in Section 5.3(a).
“Tag-Along Notice” has the meaning set forth in Section 5.3(a).
“Tag-Along Sale” has the meaning set forth in Section 5.3(a).
“VWAP” means, as of a particular date, the average of the volume weighted averages of the trading prices of shares of common stock of AIG or Acquirer, as applicable, on the New York Stock Exchange (or a comparable national stock exchange in the United States, such as the Nasdaq Stock Market) (as reported by Bloomberg L.P. or, if such information is no longer available from Bloomberg L.P., as available from a comparable internationally recognized source determined by AIG or Acquirer, on the one hand, and the Stockholder, on the other hand, each acting reasonably), on each of the twenty (20) most recent consecutive trading days on which such shares of common stock are traded on the New York Stock Exchange (or a comparable national stock exchange in the United States, such as the Nasdaq Stock Market) (each such day, a “trading day”) ending on (and including) the trading day that is the trading day immediately prior to such date.
ARTICLE II
CORPORATE GOVERNANCE MATTERS
(c) Stockholder Designee. AIG and the Company shall take such actions so that, as of the Closing, Xxxxxxxx Xxxx, President and Chief Operating Officer of Blackstone, is appointed as a member of the Board as the person designated by the Stockholder. Thereafter, and until the occurrence of a Fall-Away Event, at any election of directors of the Company, the Stockholder shall be entitled to designate one person for nomination for election to the Board, and the Board or any committee of the Board, as applicable, shall nominate for election such designee, with the identity of such designee subject to approval of the Company (not to be unreasonably withheld), but only if the election of such person to the Board would be necessary so that there be one person on the Board designated by the Stockholder, and subject, in all cases, to Applicable Law (including any eligibility and independence requirements under the Exchange Act or the applicable stock exchange rules and federal securities laws and regulations); provided that in no event shall the Stockholder have a right to designate a number of persons for nomination for election representing more than 9.9% of the whole Board. Each such person whom the Stockholder shall designate pursuant to this Section 2.1(c) and who is thereafter elected to the Board to serve as a Director shall be referred to herein as a “Stockholder Designee.” AIG agrees that, at all times when the Stockholder is entitled to designate a Stockholder Designee pursuant to this Section 2.1(c), AIG shall not vote, or execute a written consent in lieu thereof with respect to, shares of Company Common Stock in favor of any proposal to remove (with or without cause) the Stockholder Designee. The Company agrees, to the fullest extent permitted by Applicable Law (including with respect to any fiduciary duties under Delaware law), at all times when the Stockholder is entitled to designate a Stockholder Designee pursuant to this Section 2.1(c), to include in the slate of nominees recommended by the Board for election at any meeting of stockholders called for the purpose of electing Directors, the Stockholder Designee, to nominate and recommend such individual to be elected as a Director as provided herein and include such recommendation in the proxy statement (or consent solicitation or similar document) of the Company relating to the election of Directors and to solicit proxies or consents in favor thereof to the same extent, and in a manner no less favorable, as the Company solicits proxies or consents in favor of the other nominees of the Board. AIG hereby agrees with the Company that, at all times when the Stockholder is entitled to designate a Stockholder Designee pursuant to this Section 2.1(c), AIG shall vote, or execute a written consent in lieu thereof with respect to, all of the Company Common Stock then Beneficially Owned by it, or cause all of the Company Common Stock then Beneficially Owned by it, to be voted, or cause a written consent in lieu thereof to be executed, to elect the Stockholder Designee for election at any meeting of stockholders called for the purpose of electing Directors. The Stockholder hereby agrees with the Company, severally and not jointly, that, at all times when the Stockholder is entitled to designate a Stockholder Designee pursuant to this Section 2.1(c), the Stockholder shall vote, or execute a written consent in lieu thereof with respect to, all of the Company Common Stock then Beneficially Owned by it, or cause all of the Company Common Stock then Beneficially Owned by it, to be voted, or cause a written consent in lieu thereof to be executed, to elect the slate of nominees recommended by the Board for election at any meeting of stockholders called for the purpose of electing Directors.
(e) Vacancy. In the event that a vacancy is created at any time by the death, retirement, disability, removal or resignation of the Stockholder Designee, the remaining Directors and the Company shall, to the extent permitted by Applicable Law (including with respect to any fiduciary duties under Delaware law), cause the vacancy created thereby to be filled by a new Stockholder Designee. In the event that any person designated by the Stockholder shall fail to be elected to the Board at any meeting of stockholders called for the purpose of electing directors (or consent in lieu of meeting), the Company shall use its reasonable best efforts to cause such person (or alternative person selected by the Stockholder) to be elected to the Board as soon as practicable thereafter.
(i) amend the organizational documents of (A) the Company or (B) the Company Subsidiaries that are material to the Company Business, in either case so as to include provisions that would disproportionately adversely affect the Stockholder in any material respect relative to AIG, in each case in their capacities as holders of Company Common Stock, after taking into account differences in their respective ownership levels (for example, rights that are typically provided by a company to a parent company that consolidates a company);
(ii) effect a voluntary liquidation, dissolution or winding up of the Company;
(iii) repurchase shares of Company Common Stock, if such repurchase would result in the Stockholder owning, of record, more than 9.9% of the then-outstanding Company Common Stock;
(iv) other than (x) with respect to the Separation Documentation (which shall be governed by the terms of the Separation Principles), (y) any modification, amendment or termination of, or entry into, any Affiliate Contract that is on arm’s length terms, fair and reasonable to the Company Business in all material respects or in the ordinary course of business consistent with historical practice, or (z) any modification, amendment or termination of, or entry into, any Affiliate Contracts in connection with the Separation in accordance with the Separation Documentation, (A) modify, amend (in any material respect) or terminate (other than, as a result of the expiration of the term thereof) any Affiliate Contract, or waive, release or assign any material rights or claims thereunder or (B) enter into any Affiliate Contract, in each of cases (A) and (B), on terms that are adverse in any material respect to the Stockholder; provided that the consent of the Stockholder in respect of this Section 2.5(a)(iv) shall not be unreasonably withheld, delayed or conditioned;
(v) following an IPO, effect a voluntary deregistration of the Company Common Stock under the Exchange Act or delisting of the Company Common Stock with any applicable national securities exchange; or
(vi) agree to take any of the foregoing actions; provided that the consent of the Stockholder in respect of this Section 2.5(a)(vi) as it relates to Section 2.5(a)(iv) shall not be unreasonably withheld, delayed or conditioned.
(b) From and after the Closing until the earlier of the closing of the IPO and the occurrence of a Fall-Away Event, the Company will not, and will cause the Company Subsidiaries and the Company Business not to, without the prior written consent of the Stockholder:
(i) declare, set a record date or set aside or pay any dividends or distributions (whether in cash, stock or property) on, or effect any redemption, repurchase or other acquisition in respect of, shares of Company Common Stock that are not declared, paid or effected, or otherwise transfer or make payments in respect of the equity interests in the Company that are not made, on a pro rata basis with respect to all holders of shares of Company Common Stock; provided that, in connection with the Separation, the Company shall be permitted to set a record date, set aside or pay any dividend or distribution, or otherwise transfer or make payments in respect of the equity interests in the Company, to AIG and/or any of its Subsidiaries on a non-pro rata basis (such that the Stockholder and its Affiliates will not be entitled to receive such dividend, distribution or payment) in respect of the Affordable Housing Transaction (it being agreed that the aggregate impact of any such dividend, distribution or payment shall be determined in accordance with the Calculation Methodologies and reflected in full in the calculation of each of the Interim Adjusted Book Value (as defined in the SPA) and Final Adjusted Book Value (as defined in the SPA));
(ii) effect any split, combine or reclassify any of the Company’s outstanding capital stock or equity securities or issue or authorize the issuance of any other stock or securities (including any derivatives securities) in respect of, in lieu of or in substitution for shares or other interests representing any of the Company’s outstanding capital stock or equity securities, in each case, that is not on a proportionate basis with respect to all holders thereof;
(iii) other than with respect to any Insurance Company, incur, assume, guarantee, refinance, be allocated or become obligated with respect to any third-party indebtedness (including by issuance of debt securities of the Company or any Company Subsidiary, but excluding any intercompany indebtedness or payables owed to AIG or any of its Subsidiaries to the extent permitted by Section 2.5(b)(iv)) in excess of, in each case outstanding at any one time, (x) ten billion U.S. dollars ($10,000,000,000) of new third-party indebtedness issued by the Company and the Company Subsidiaries in a total aggregate principal amount on a consolidated basis (excluding guaranteed investment contracts, FHLB short-term financings and other ordinary course operating indebtedness, in each case, incurred in the ordinary course of business consistent with past practice) plus (y) two billion U.S. dollars ($2,000,000,000) of third-party indebtedness issued by the Company and the Company Subsidiaries under a customary revolving credit facility on market terms; provided that the consent of the Stockholder in respect of this Section 2.5(b)(iii) shall not be unreasonably withheld, delayed or conditioned;
(iv) other than (x) repayments of intercompany indebtedness and payables to AIG or its Subsidiaries in the ordinary course of business consistent with past practice (which repayments are not subject to limitation) and (y) the incurrence of ordinary course intercompany indebtedness consistent with historical practice, on terms (including with respect to interest rates) consistent with historical practice with respect to existing ordinary course intercompany indebtedness), (A) repay, forgive or otherwise cancel any indebtedness or payables between the Company or the Company Subsidiaries, on the one hand, and AIG or its Subsidiaries (other than the Company and the Company Subsidiaries), on the other hand, (B) loan any amounts to AIG or its Subsidiaries (other than the Company and the wholly owned Company Subsidiaries) or (C) incur any indebtedness to AIG or its Subsidiaries (other than the Company and the wholly owned Company Subsidiaries); provided that, in connection with the Separation, the Company and the Company Subsidiaries shall be permitted to incur (including through the creation or distribution of one or more intercompany notes to AIG and/or its Subsidiaries) and, from the proceeds of the third-party indebtedness set forth in subclause (x) of Section 2.5(b)(iii), repay up to an aggregate of eight billion three hundred million U.S. dollars ($8,300,000,000) of intercompany indebtedness and/or payables (on terms (including with respect to interest rates) and conditions consistent with historical practice with respect to existing intercompany indebtedness or payables, as applicable) between the Company or the Company Subsidiaries, on the one hand, and AIG or its Subsidiaries (other than the Company and its Subsidiaries), on the other hand; provided, further, that the amount of such repayment shall be reflected in full in the calculation of Final Adjusted Book Value; provided, further, that any portion of intercompany indebtedness (including any portion of the eight billion three hundred million U.S. dollars ($8,300,000,000) of intercompany indebtedness) and/or payables that is incurred but not so repaid shall (1) remain outstanding unless forgiven or otherwise cancelled by AIG in its discretion and (2) be reflected in full in the calculation of Final Adjusted Book Value;
(v) enter into any new material line of business that would subject the Stockholder or its Affiliates to obligations under the Bank Holding Company Act or any other Applicable Law that governs banking or similar entities; or
(vi) agree to take any of the foregoing actions; provided that the consent of the Stockholder in respect of this Section 2.5(b)(vi), insofar as it relates to Section 2.5(b)(iii) shall not be unreasonably withheld, delayed or conditioned.
(a) In recognition and anticipation of the fact that (i) certain directors, principals, officers, employees and/or other representatives of the Stockholder and its Affiliates may serve as a director of the Company, (ii) the Stockholder and its Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Company, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Company, directly or indirectly, may engage or proposes to engage, and (iii) members of the Board who are not employees of the Company or the Company Subsidiaries (“Non-Employee Directors”) and their respective Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Company, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Company, directly or indirectly, may engage or proposes to engage, the provisions of this Section 3.3 are set forth to regulate and define the conduct of certain affairs of the Company with respect to certain classes or categories of business opportunities as they may involve the Stockholder, the Non-Employee Directors or their respective Affiliates, as applicable, and the powers, rights, duties and liabilities of the Company and its directors and stockholders in connection therewith. The Company hereby agrees that none of (A) the Stockholder or any of its Affiliates, (B) AIG or any of its Affiliates or (C) the Non-Employee Directors or his or her Affiliates (the Persons identified in clauses (A), (B) and (C) above being referred to, collectively, as “Identified Persons” and, individually, as an “Identified Person”) shall, to the fullest extent permitted by (but otherwise subject to) Applicable Law, have any duty to refrain from, directly or indirectly, (1) engaging in the same or similar business activities or lines of business in which the Company or any of its Affiliates now engages or proposes to engage or (2) otherwise competing with the Company or any of its Affiliates, and, to the fullest extent permitted by law, no Identified Person shall be liable to the Company or its stockholders or to any Affiliate of the Company for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. To the fullest extent permitted by law, the Company hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity that may be a corporate opportunity for an Identified Person and the Company or any of its Affiliates, except as provided in Section 3.3(b). Subject to Section 3.3(b), in the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity that may be a corporate opportunity for itself, herself or himself and the Company or any of its Affiliates, such Identified Person shall, to the fullest extent permitted by law, have no duty to communicate or offer such transaction or other business opportunity to the Company or any of its Affiliates and, to the fullest extent permitted by law, shall not be liable to the Company or its stockholders or to any Affiliate of the Company for breach of any fiduciary duty as a stockholder or director of the Company solely by reason of the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, or offers or directs such corporate opportunity to another Person or does not communicate information regarding such corporate opportunity to the Company.
(b) Notwithstanding anything to the contrary contained in this Section 3.3, the Company does not renounce its interest in any corporate opportunity offered to any Non- Employee Director (including any Non-Employee Director who serves as an officer of the Company) if such opportunity is expressly offered to such person solely in his or her capacity as a director or officer of the Company, and the provisions of Section 3.3(a) shall not apply to any such corporate opportunity.
(c) The Company agrees that it will include in its organizational documents a waiver of corporate opportunity provision substantially identical to the provisions set forth in Sections 3.3(a) and 3.3(b).
ARTICLE IV
REGISTRATION RIGHTS
(a) Subject to and without limiting any of the obligations of the Stockholder set forth in Section 5.1, (i) the Stockholder may request registration under the Securities Act of all or any portion of its Registrable Securities on Form S-1 (excluding a Shelf Registration) or any successor long-form registration statement (“Long-Form Registrations”) subject to and in accordance with Section 4.1(b) and (ii) the Stockholder may, if available, request registration under the Securities Act of all or any portion of its Registrable Securities on a shelf registration statement on Form S-3 or any successor short-form registration statement (a “Shelf Registration”), in each case of the foregoing clauses (i) and (ii), to be effective at any time from and following the first anniversary of the date on which the Company completes an IPO (or, in the event that the IPO is not completed prior to November 2, 2023, at any time from and following the Stockholder’s exercise of the Exchange Right) (subject to the expiration or waiver of the applicable lock-up period relating to such IPO), subject to and in accordance with Section 4.1(b); provided, that (A) the Stockholder shall be entitled to no more than one (1) Shelf Registration during each three (3)-year period and an aggregate of three (3) Shelf Registrations hereunder, (B) the Stockholder shall not be entitled to any Long-Form Registrations at any time when the Company is eligible to effect a Shelf Registration and (C) each Shelf Registration must include all of the Registrable Securities then held by the Stockholder. All registrations requested pursuant to this Section 4.1 by the Stockholder are referred to herein as “Demand Registrations.” Each request for a Demand Registration shall specify the approximate number of shares requested to be registered and the intended method of distribution.
(b) The Stockholder shall be entitled to demand an aggregate of four (4) underwritten public offerings hereunder whether in the form of Long-Form Registrations or take-downs off a Shelf Registration (each, a “Shelf Take-down”) hereunder; provided that (i) the aggregate offering value of the Registrable Securities requested to be registered in any underwritten public offering whether in the form of a Long-Form Registration or Shelf Take-down must be at least two percent (2%) of the then-outstanding Company Common Stock (or any such lesser amount if all of the Registrable Securities held by the Stockholder are requested to be included in such offering) and (ii) the Stockholder shall not be entitled to demand an underwritten public offering in the form of a Long-Form Registration if the Company is then eligible to effect such offering as a Shelf Take-down.
(c) If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, that can be sold in an orderly manner in such offering, then the Company shall include (i) first, all Registrable Securities requested to be sold by the Stockholder in such Demand Registration up to that number of securities that in the opinion of such underwriters can be sold in such offering without adversely affecting the marketability of the offering and (ii) second, any other securities requested to be included.
(d) Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to effect any Demand Registration during any period in which the Company and/or AIG is restricted from effecting a registration, offering or sale of shares of Company Common Stock pursuant to a lock-up or similar agreement entered into in connection with any offering or sale of Company Common Stock registered with the SEC and, if requested by the Company or AIG, the Stockholder shall enter into a lock-up or similar agreement with the managing underwriters in connection therewith; provided, that the restriction period thereunder shall not exceed one hundred eighty (180) days after the effective date of the Company’s IPO or ninety (90) days after the effective date of any other public offering, and (ii) the Company may postpone the filing or the effectiveness of a registration statement for a Demand Registration or suspend the use of a prospectus that is part of a Shelf Registration (and therefore suspend sales of Registrable Securities thereunder in accordance with Section 4.5(a)) during any Blackout Period; provided that only in such event, the Stockholder shall be entitled to withdraw such request for a Demand Registration and, if so withdrawn, such Demand Registration shall not count against the total number of Long-Form Registrations and Shelf Take-downs provided for in Section 4.1(b).
(e) If any Demand Registration, including any Shelf Take-down, is an underwritten offering, then the Stockholder shall have the right to select the managing underwriters to administer such offering, which managing underwriters must be reasonably acceptable to the Company. The IPO shall not be deemed to be a Demand Registration for this purpose.
(f) The Stockholder agrees, subject to Section 3.1, to treat as confidential the receipt of any notice hereunder and the information contained therein to the extent such information constitutes material non-public information within the meaning of the federal securities laws, and not to disclose or use any such material non-public information without the prior written consent of the Company until such time as any such material non-public information is or becomes available to the public generally (other than as a result of disclosure by the Stockholder or any of the Stockholder Representatives in breach of the terms of this Agreement).
(g) For so long as the Stockholder holds any Registrable Securities, the Company and its Affiliates shall not, without the Stockholder’s prior written consent, enter into any Contract providing another Person with registration rights that would conflict with the provisions of this Article IV.
(b) If the Piggyback Registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Stockholder as a part of the written notice given. In such event, the right of the Stockholder to registration pursuant to this Section 4.2(b) shall be conditioned upon the Stockholder’s participation in such underwriting and the inclusion of the Stockholder’s Registrable Securities in the underwriting to the extent provided herein. If the Stockholder exercises its Piggyback Registration rights it shall enter into an underwriting agreement in customary form with the representative of the managing underwriters selected by the Company. Notwithstanding any other provision of this Section 4.2, if the underwriters advise the Company that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) limit the number of Registrable Securities to be included in the registration and underwriting. The Company shall so advise the Stockholder, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated as follows: (i) first, to the Company for securities being sold for its own account, (ii) second, to the Stockholder; and (iii) third, to any other holders of the Company’s securities.
(c) The Company shall have the right to terminate or withdraw any registration prior to the effectiveness of such registration whether or not the Stockholder has elected to include securities in such registration. The Stockholder shall not have the right to withdraw its request for inclusion of its Registrable Securities in the offering pursuant to this Section 4.2(c) following its exercise of its Piggyback Registration rights.
(b) The Stockholder shall furnish to the Company such information regarding the Stockholder and the distribution proposed by the Stockholder as the Company may reasonably request or as shall be reasonably required in connection with any registration, qualification or compliance referred to in this Article IV.
(b) Notwithstanding anything to the contrary herein, Section 4.1 and Section 4.2, and the rights and obligations of the parties thereunder, shall terminate upon the Stockholder ceasing to hold 75% or more of the Company Common Stock held by the Stockholder as of the Closing.
(a) To the extent permitted by law, the Company will indemnify and hold harmless the Stockholder, each of its Affiliates and its and their officers, directors and managers, and each person controlling the Stockholder within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages, and liabilities (or actions, proceedings, or settlements in respect thereof) arising out of or based on: (i) any untrue statement (or alleged untrue statement) of a material fact contained or incorporated by reference in any prospectus or other document incident to any such registration, qualification, or compliance, (ii) any 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 (iii) any violation (or alleged violation) by the Company of the Securities Act, any state securities laws or any rule or regulation thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any offering covered by such registration, qualification or compliance, and the Company will reimburse the Stockholder, each of its officers, directors and managers, and each person controlling the Stockholder as provided above, for any legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, or action; provided, however, that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability, or action arises out of or is based on any untrue statement or omission based upon written information furnished to the Company by the Stockholder, any of the Stockholder’s officers, directors or managers, or any person controlling the Stockholder as provided above specifically for use therein; and provided, further, however, that the indemnity agreement contained in this Section 4.6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company.
(b) To the extent permitted by law, the Stockholder will, if Registrable Securities held by the Stockholder are included in the securities as to which any registration, qualification, or compliance is being effected, indemnify and hold harmless the Company, each of its directors, officers, managers, legal counsel and accountants, and each underwriter, if any, of the Company’s securities covered by such a registration statement, and each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on: (i) any untrue statement (or alleged untrue statement) of a material fact contained or incorporated by reference in any such registration statement, prospectus or other document, or (ii) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and the Company’s officers, directors and managers, legal counsel, and accountants, persons, underwriters, or control persons as provided above, for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus or other document in reliance upon and in conformity with written information furnished to the Company by the Stockholder and stated by the Stockholder to be specifically for use therein; provided, however, that the obligations of the Stockholder hereunder shall not apply to amounts paid in settlement of any such claims, losses, damages, or liabilities (or actions in respect thereof) if such settlement is effected without the consent of the Stockholder (which consent shall not be unreasonably withheld, conditioned or delayed); provided further that the obligations of the Stockholder hereunder shall be limited to the net proceeds received by the Stockholder from the sale of securities under any such registration statement or offering hereunder.
(c)
(i) Each party entitled to indemnification under this Section 4.6(c) (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of such claim or any litigation resulting therefrom; provided, however, that the Indemnified Party may participate in such defense at such party’s expense; and provided further, however, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 4.6(c) to the extent such failure is not prejudicial. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with defense of such claim and litigation resulting therefrom.
(ii) If the indemnification provided for in this Section 4.6(c) is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.
(iii) Notwithstanding the foregoing provisions of this Section 4.6(c), to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.
(a) make and keep current public information available, within the meaning of Rule 144 promulgated under the Securities Act, at all times after it has become subject to the reporting requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and other documents required of the Company under the Securities Act and Exchange Act (after it has become subject to such reporting requirements); and
(c) so long as the Stockholder Beneficially Owns any Registrable Securities, furnish to the Stockholder forthwith upon request a written statement by the Company as to its compliance with the reporting requirements of said Rule 144 (at any time commencing ninety (90) days after the effective date of the first registration filed by the Company for an offering of its securities to the general public), the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements); a copy of the most recent annual or quarterly report of the Company; and such other reports and documents as the Stockholder may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any such securities without registration (in each case to the extent not readily publicly available).
ARTICLE V
EQUITY LOCK-UP
5.1 Sales and Transfers.
(a) From and after the Closing, subject to the rights of the Stockholder under Section 6.1, the Stockholder and its Affiliates shall not Sell any shares of Company Common Stock (including Purchased Shares), except as follows:
(i) the Stockholder and its Affiliates will be permitted to Sell shares of Company Common Stock to the Stockholder’s Affiliates; provided that such Affiliates agree to be bound by the terms of this Agreement as if they were the Stockholder;
(ii) following the IPO, the Stockholder and its Affiliates will be permitted to Sell shares of Company Common Stock, in one or more transactions effected pursuant to the Stockholder’s registration rights pursuant to Article IV, in privately negotiated transactions with a third-party purchaser or on the stock exchange upon which the Company Common Stock is listed pursuant to Rule 144 under the Securities Act, in each case, as follows: (A) after the first anniversary of the closing of the IPO, up to 25% of the Purchased Shares owned by the Stockholder as of Closing; (B) after the second anniversary of the closing of the IPO, up to an additional 42% of the Purchased Shares owned by the Stockholder as of the Closing (for a total of 67% of the Purchased Shares when including the Purchased Shares permitted to be transferred pursuant to the immediately preceding subclause (A)); (C) after the third anniversary of the closing of the IPO, up to an additional 8% of the Purchased Shares owned by the Stockholder as of the Closing (for a total of 75% of the Purchased Shares when including the Purchased Shares permitted to be transferred pursuant to the preceding subclauses (A) and (B)); and (D) after the fifth anniversary of the closing of the IPO, any shares of Company Common Stock (and the restrictions set forth in this Section 5.1(a) shall henceforth no longer apply); provided that, following an IPO, the restrictions set forth in this Article V on the Stockholder’s ability to Sell shares of Company Common Stock shall terminate if the Company or the Company Subsidiaries enter into any business that would subject the Stockholder or its Affiliates to obligations under the Bank Holding Company Act or any other Applicable Law that governs banking or similar entities;
(iii) the Stockholder and its Affiliates will be permitted to Sell shares of Company Common Stock in connection with any share repurchase by AIG or the Company to cause the Stockholder’s ownership, of record, to not exceed 9.9% of the then-outstanding Company Common Stock;
(iv) the Stockholder and its Affiliates will be permitted to Sell shares of Company Common Stock in connection with a Change of Control of the Company that is approved and recommended to the Stockholders of the Company by the Board;
(v) the Stockholder and its Affiliates will be permitted to Sell shares of Company Common Stock to the extent permitted or required pursuant to Sections 5.2, 5.3 and 6.1; and
(vi) the Stockholder and its Affiliates will be permitted to Sell shares of Company Common Stock with the prior written consent of the Company (or, for so long as AIG Beneficially Owns Company Common Stock representing at least fifty (50%) of the then-outstanding shares of Company Common Stock, AIG).
(b) In the event that the IPO is not completed prior to November 2, 2023, then the restrictions on the Stockholder’s ability to Sell shares of Company Common Stock set forth in Section 5.1(a)(ii) above shall be deemed to have commenced as of such date and not as of the closing of the IPO as provided therein.
(c) During the Restriction Period, the Stockholder’s right to Sell Purchased Shares will be subject to such restrictions (and with the benefit of any exceptions) as provided in the applicable lock-up agreement with the underwriters in any public offering (including the IPO) by the Company or AIG; provided that the lock-up period in the case of the IPO shall not be longer than one-hundred and eighty (180) days and in the case of any public offering following the IPO shall not be longer than ninety (90) days; provided further that the Stockholder shall be provided with notice of any waiver of the terms of the lock-up agreement to be executed by AIG in connection with the relevant public offering and AIG shall make provision such that any such waiver shall operate as a waiver of the lock-up agreement of the Stockholder.
(d) If the Stockholder is permitted to Sell any shares of Company Common Stock hereunder, then, upon the request of the Stockholder in the event the Stockholder desires to Sell any or all of the shares of Company Common Stock then Beneficially Owned by it, including to a third-party purchaser, the Company shall reasonably cooperate with the Stockholder in taking any action reasonably necessary to transfer such shares pursuant to any such Sale, including by instructing the transfer agent to transfer any such Company Common Stock subject to the Sale without restrictive legends and taking other similar or administrative actions which are necessary to transfer such shares pursuant to any such Sale.
5.2 Drag-Along Right.
(a) Prior to an IPO, if any Person or group (within the meaning of Section 13(d) of the Exchange Act) of Persons who is not an Affiliate of AIG (such Person or group, a “Drag- Along Acquirer”) offers to acquire an amount of shares of Company Common Stock (whether in connection with a merger or consolidation of the Company, an offer to purchase shares directed to all stockholders, or otherwise) in a transaction that would constitute a Change of Control of the Company (a “Drag-Along Sale”), then (i) AIG may deliver to the Stockholder a written notice with respect to such Drag-Along Sale (a “Drag-Along Notice”) and (ii) the Stockholder shall thereafter be required to participate in such transaction on the same terms and conditions as AIG in accordance with the provisions of this Section 5.2.
(b) The Drag-Along Notice will include the material terms and conditions of the Drag-Along Sale, including (i) the identity of the Drag-Along Acquirer, (ii) the aggregate transaction value, the per share price and the form of consideration (or the right to elect the form of consideration) to be received by AIG and the Stockholder and any other material terms and conditions of the proposed Drag-Along Sale (which per share price and form of consideration (or the right to elect the form of consideration) and other material terms and conditions shall be the same for AIG and the Stockholder and, if such consideration consists in part or in whole of properties, assets or rights other than cash, AIG will provide such information relating to such non-cash consideration as is available to AIG (provided that information available to AIG upon request shall be deemed to be available) and the Stockholder may reasonably request in order to evaluate such non-cash consideration), (iii) the date of anticipated closing of the proposed Drag- Along Sale (which shall not be less than ten (10) Business Days after the date the Drag-Along Notice is delivered), (iv) the action or actions required of the Stockholder in order to complete or facilitate such proposed Drag Along Sale, (v) a percentage, expressed as a fraction, the numerator of which is the number of shares of Company Common Stock which AIG intends to Sell in such Drag-Along Sale and the denominator of which is the total number of outstanding shares of Company Common Stock then Beneficially Owned by AIG and (vi) copies of the definitive transaction documents relating to the Drag-Along Sale.
(c) In connection with a Drag-Along Sale, the Stockholder shall be obligated to (i) vote all of such Stockholder’s shares in favor of the Drag-Along Sale, to the extent the consummation of such sale requires stockholder approval, and shall take any other action reasonably required to waive any dissenters’ rights or rights of appraisal under applicable law (including Section 262 of the Delaware General Corporation Law), (ii) transfer, at the same time and place and on the same terms and conditions as AIG (including with the same right to elect the form of consideration as is offered to AIG), a number of shares of Company Common Stock equal to (A) the number of shares of Company Common Stock which the Stockholder then Beneficially Owns multiplied by (B) a fraction, the numerator of which is the number of shares of Company Common Stock which AIG intends to Sell in such Drag-Along Sale and the denominator of which is the total number of outstanding shares of Company Common Stock then Beneficially Owned by AIG, and (iii) execute and deliver all documents reasonably necessary to effectuate such transaction; provided that, notwithstanding the foregoing or anything to the contrary set forth in this Section 5.2, (1) the Stockholder shall not be subject to any non-compete covenant, non-solicitation covenant or other similar provision that would bind or purport to restrict the Stockholder or any of its Affiliates, including any restriction or limitation on the ability of the Stockholder or any of its Affiliates to invest in any other Person (it being understood that the Stockholder may be subject to confidentiality restrictions (and with the benefit of any exceptions) on the same terms as AIG), (2) the Stockholder shall not be required to make representations and warranties or covenants or provide indemnities as to any other Person participating in such Drag-Along Sale and the Stockholder shall not be required to make any representations or warranties (but, subject to clause (4) of this proviso, may be required to provide several but not joint indemnities with respect to breaches of representations and warranties made by the Company) about the Company Business (it being understood that the Stockholder may be required to make customary representations and warranties as to its ownership of shares of Company Common Stock, authority, power and legal right to enter into and consummate a purchase or merger agreement and as to whether it has engaged a broker in connection with any such transaction); (3) the Stockholder shall not be liable for the breach of any covenant by any other holder of Company Common Stock or the Company (but shall bear liability severally for breach of any representation, warranty or covenant made specifically by it or relating to its specific ownership of shares of Company Common Stock); and (4) liability relating to representations, warranties and covenants (and related indemnities) and other indemnification obligations regarding the Company Business assumed in connection with the Drag-Along Sale shall be shared by AIG and the Stockholder severally and not jointly pro rata in proportion to the number of shares of Company Common Stock actually transferred by AIG and the Stockholder in such Drag-Along Sale and, in any event, in the case of the Stockholder, shall not exceed the proceeds actually received by the Stockholder in such Drag-Along Sale.
(d) If AIG is offered the opportunity in a Drag-Along Sale to receive all or a portion of its consideration in the form of securities of the Drag-Along Acquirer or an Affiliate thereof, or otherwise to rollover or contribute its shares of Company Common Stock immediately prior to the consummation of such Drag-Along Sale into securities of the Drag-Along Acquirer or any Affiliate thereof, then AIG shall make provision so that the Stockholder shall be offered the same opportunity in such Drag-Along Sale (irrespective of any rollover election, if applicable, made by AIG with respect to such transaction).
(e) At the closing of any Drag-Along Sale, the Stockholder shall deliver, against receipt of the consideration specified in the Drag-Along Notice, any certificates representing the shares of Company Common Stock which such Stockholder Beneficially Owns, with all endorsements necessary for transfer; provided that the Company will return, or cause the return of, such certificates promptly upon the termination of such proposed Drag-Along Sale or the determination that such proposed Drag-Along Sale will not be consummated.
(f) The provisions of this Section 5.2 shall terminate upon the closing of an IPO.
5.3 Tag-Along Right.
(a) Prior to an IPO, in the event the Drag-Along Right is not exercised but AIG elects to Sell in a transaction with any Person or group (within the meaning of Section 13(d) of the Exchange Act) of Persons (such Person or group, a “Tag-Along Acquirer”) any of the shares of Company Common Stock then Beneficially Owned by AIG (a “Tag-Along Sale”), then (i) AIG shall deliver to the Stockholder a written notice with respect to such Tag-Along Sale (a “Tag- Along Notice”) and (ii) the Stockholder shall have the right to participate as a seller in the Tag- Along Sale on the same terms and conditions as AIG in accordance with the provisions of this Section 5.3.
(b) The Tag-Along Notice will include the material terms and conditions of the Tag- Along Sale, including (i) the identity of the Tag-Along Acquirer, (ii) the aggregate transaction value, the per share price and the form of consideration (or the right to elect the form of consideration) to be received by AIG and the Stockholder and any other material terms and conditions of the proposed Tag-Along Sale (which per share price and form of consideration (or the right to elect the form of consideration) and other material terms and conditions shall be the same for AIG and the Stockholder and, if such consideration consists in part or in whole of properties, assets or rights other than cash, AIG will provide such information relating to such non-cash consideration as is available to AIG (provided that information available to AIG upon request shall be deemed to be available) and the Stockholder may reasonably request in order to evaluate such non-cash consideration), (iii) the date of anticipated closing of the proposed Tag- Along Sale (which shall not be less than ten (10) Business Days after the date the Tag-Along Notice is delivered), (iv) a percentage, expressed as a fraction, the numerator of which is the number of shares of Company Common Stock which AIG intends to Sell in such Tag-Along Sale and the denominator of which is the total number of outstanding shares of Company Common Stock then Beneficially Owned by AIG and (v) copies of the definitive transaction documents relating to the Tag-Along Sale.
(c) The Stockholder shall have the right, exercisable by delivery of a notice to AIG at any time within ten (10) Business Days after receipt of the Tag-Along Notice (the “Tag-Along Exercise Notice”), to elect to Sell in connection with the Tag-Along Sale, and on the terms and conditions set forth in the Tag-Along Notice, up to a number of shares of Company Common Stock equal to (i) the number of shares of Company Common Stock which the Stockholder then Beneficially Owns multiplied by (ii) a fraction, the numerator of which is the number of shares of Company Common Stock which AIG intends to Sell in such Tag-Along Sale and the denominator of which is the total number of outstanding shares of Company Common Stock then Beneficially Owned by AIG; provided that, if AIG sells Company Common Stock in such Tag- Along Sale such that AIG ceases to own, directly or indirectly, at least 25% of the issued and outstanding Company Common Stock, then the Stockholder may Sell up to 100% of shares of Company Common Stock then Beneficially Owned by the Stockholder in any such Tag-Along Sale (and AIG may not Sell any shares of Company Common Stock in such Tag-Along Sale unless the Tag-Along Acquirer acquires such amount of shares of Company Common Stock elected by the Stockholder pursuant to this proviso). Subject to the proviso of the immediately preceding sentence, if the Tag-Along Acquirer is unwilling to purchase all of the shares of Company Common Stock proposed to be transferred by AIG and the Stockholder (determined in accordance with the first sentence of this Section 5.3(c)), then AIG and the Stockholder shall reduce, pro rata in proportion to the number of shares of Company Common Stock proposed to be transferred by AIG and the Stockholder in such Tag-Along Sale, the amount of shares of Company Common Stock that each otherwise would have sold so as to permit AIG and the Stockholder to sell the amount of shares of Company Common Stock that the Tag-Along Acquirer is willing to purchase.
(d) AIG and the Stockholder shall, to the extent that the Stockholder has elected to participate in such Tag-Along Sale pursuant to this Section 5.3, transfer to the Tag-Along Acquirer, at the same time and place and on the same terms and conditions, the shares of Company Common Stock proposed to be transferred by them in accordance with this Section 5.3; provided that, notwithstanding the foregoing or anything to the contrary set forth in this Section 5.3, (i) the Stockholder shall not be subject to any non-compete covenant, non-solicitation covenant or other similar provision that would bind or purport to restrict the Stockholder or any of its Affiliates, including any restriction or limitation on the ability of the Stockholder or any of its Affiliates to invest in any other Person (it being understood that the Stockholder may be subject to confidentiality restrictions (and with the benefit of any exceptions) on the same terms as AIG), (ii) the Stockholder shall not be required to make representations and warranties or covenants or provide indemnities as to any other Person participating in such Tag-Along Sale and the Stockholder shall not be required to make any representations or warranties (but, subject to clause (iv) of this proviso, shall be required to provide several but not joint indemnities with respect to breaches of representations and warranties made by the Company) about the Company Business (it being understood that the Stockholder may be required to make customary representations and warranties as to its ownership of shares of Company Common Stock, authority, power and legal right to enter into and consummate a purchase or merger agreement and as to whether it has engaged a broker in connection with any such transaction); (iii) the Stockholder shall not be liable for the breach of any covenant by any other holder of Company Common Stock or the Company (but shall bear liability severally for breach of any representation, warranty or covenant made specifically by it or relating to its specific ownership of shares of Company Common Stock); and (iv) liability relating to representations, warranties and covenants (and related indemnities) and other indemnification obligations regarding the Company Business assumed in connection with the Tag-Along Sale shall be shared by AIG and the Stockholder severally and not jointly pro rata in proportion to the number of shares of Company Common Stock actually transferred by AIG and the Stockholder in such Tag-Along Sale, and, in any event, in the case of the Stockholder, shall not exceed the proceeds actually received by the Stockholder in such Tag-Along Sale.
(e) If AIG is offered the opportunity in a Tag-Along Sale to receive all or a portion of its consideration in the form of securities of the Tag-Along Acquirer or an Affiliate thereof, or otherwise to rollover or contribute its shares of Company Common Stock immediately prior to the consummation of such Tag-Along Sale into securities of the Tag-Along Acquirer or any Affiliate thereof, then AIG shall make provision so that the Stockholder shall be offered the same opportunity in such Tag-Along Sale (irrespective of any rollover election, if applicable, made by AIG with respect to such transaction).
(f) If, at the end of the 180th day after the date of the effectiveness of the Tag-Along Exercise Notice, the Tag-Along Sale has not been completed, then the Stockholder shall be released from the Stockholder’s obligations under the Tag-Along Exercise Notice, the Tag- Along Exercise Notice shall be null and void, and it shall be necessary for a separate Tag-Along Notice to be furnished to the Stockholder, and the terms and provisions of this Section 5.3 separately complied with, in order to consummate a transaction that would constitute a Tag- Along Sale pursuant to this Section 5.3.
(g) The provisions of this Section 5.3 shall terminate upon the closing of an IPO.
ARTICLE VI
ADDITIONAL COVENANTS
(a) The Company shall, and AIG shall cause the Company to, complete an IPO prior to the 24-month anniversary of the Closing. Notwithstanding anything to the contrary under Article V, if the Company has not completed an IPO on or prior to the 24-month anniversary of the Closing, then, from and after such date until the occurrence of an IPO, the Stockholder shall have the right (and shall be entitled to obtain specific performance) to require AIG and the Company to effect an IPO, including through requiring the Company to file a registration statement on Form S-1 or other appropriate form, complete an audit of the Company’s consolidated financial statements and take such other actions as are reasonably necessary to complete an IPO.
(b) If an IPO is not completed prior to the 36-month anniversary of the Closing, then, from and after such date until the occurrence of an IPO, the Stockholder shall have the right, but not the obligation, to elect at any time and from time to time to (i) require AIG to exchange (the “Exchange Right”) all or a portion of the Purchased Shares (such shares, the “Exchange Shares”) for a number of validly issued, fully paid and non-assessable shares of AIG Common Stock (which shares shall be unregistered shares under the Securities Act) equal to the Exchange Consideration; provided that (A) in no event shall AIG be required to issue more than 250,000,000 shares of AIG Common Stock in the aggregate pursuant to the foregoing Exchange Right and (B) if, at any time following the date hereof, AIG or its Subsidiaries have a line of business that would, after giving effect to the Exchange Right (whether or not such Exchange Right is actually exercised by the Stockholder), subject the Stockholder or its Affiliates to obligations under the Bank Holding Company Act or any other Applicable Law that governs banking or similar entities, then (1) the number of shares of AIG Common Stock issued to the Stockholder pursuant to any subsequent exercise of the Exchange Right, together with any shares of AIG Common Stock then Beneficially Owned by the Stockholder, shall not exceed 4.99% of the then outstanding shares of AIG Common Stock, (2) each share of AIG Common Stock that would (but for the foregoing clause (1)) otherwise be issued to the Stockholder pursuant to the foregoing Exchange Right shall be a share of non-voting common stock or non-voting preferred stock of AIG that otherwise has the same rights, powers, preferences and designations as the AIG Common Stock, and (3) AIG shall make provision to convert such number of shares of AIG Common Stock then Beneficially Owned by the Stockholder pursuant to any prior exercise of the Exchange Right in excess of 4.99% of the then outstanding shares of AIG Common Stock to an equivalent number of shares of non-voting common stock or non-voting preferred stock of AIG that otherwise have the same rights, powers, preferences and designations as the AIG Common Stock, except that in the case of each of the foregoing clauses (2) and (3), each such share of non-voting common stock or non-voting preferred stock shall convert into a share of common stock, par value $2.50 per share, of AIG upon the transfer of such share of non-voting common stock or non-voting preferred stock by the Stockholder to a third party to the extent that such conversion upon a third-party transfer may be permitted without causing such share to be considered a “voting security” for purposes of the Bank Holding Company Act or any other Applicable Law that governs banking or similar entities, and (ii) Sell such shares of AIG Common Stock or any Purchased Shares it holds, each without any transfer restrictions (other than restrictions in respect of unregistered securities under applicable securities laws (it being understood that the Stockholder shall have the rights set forth in Article IV with respect to any resale of such unregistered securities, mutatis mutandis)). Prior to any permitted exercise by the Stockholder of such Exchange Right, at the Stockholder’s request, AIG shall use reasonable best efforts to take such actions as are necessary to render inapplicable to the Exchange Right any limitations set forth in Article XIII (or any successor provisions thereof) of AIG’s certificate of incorporation (as amended, restated, supplemented or otherwise modified from time to time) and/or AIG’s Tax Asset Protection Plan (as amended, restated, supplemented or otherwise modified from time to time and any successor thereto); provided that AIG shall not be required to take any such action to the extent that AIG determines, after consultation with the Stockholder and acting in good faith, that it is reasonably likely to jeopardize, endanger or defer in any material respect the availability to AIG’s consolidated federal income tax return group of a material amount of net operating losses (or any other tax attributes that would be limited pursuant to Sections 382 or 383 of the Code), and to the extent that AIG does not take any such action, then AIG shall cooperate with the Stockholder to facilitate the Stockholder’s exercise of the Exchange Right and sale of AIG Common Stock of (which facilitation may include facilitating sequential exchanges by the Stockholder such that following such sequential exchanges, the Stockholder may exchange and sell all of the Exchange Shares), in each case, in a manner that would not jeopardize, endanger or defer in any material respect the availability to AIG’s consolidated federal income tax return group of such net operating losses or tax attributes.
(c) If, prior to the completion of the IPO, there is a Change of Control of AIG, then AIG shall make provision such that the ultimate acquirer in such Change of Control transaction (the “Acquirer”) shall assume the Exchange Right obligations of AIG hereunder; provided that the Acquirer shall have the right to (and, if an IPO has not been completed prior to the 36-month anniversary of the Closing and the Acquirer does not have freely tradable marketable securities at the time the Exchange Right is exercised, shall be required to) pay cash in lieu of issuing equity at a price equal to the Exchange Value. For purposes of this Section 6.1, “freely tradable marketable securities” means equity securities that are freely traded on the New York Stock Exchange, the Nasdaq Stock Market or another comparable national stock exchange in the United States without any restriction, whether restrictions arising from or pursuant to Contract or Applicable Law and including any restrictions or limitations as to time or volume thereunder.
(d) Notwithstanding anything to the contrary herein, (i) under no circumstances will the Stockholder be entitled to both (A) require that AIG and/or the Company complete an IPO and (B) exercise the Exchange Right and (ii) the rights of the Stockholder under this Section 6.1 shall terminate automatically upon an IPO.
(e) From and after exercise of the Exchange Right, the Stockholder shall have the registration rights set forth in Article IV, with respect to the shares of AIG Common Stock that are received pursuant to the Stockholder’s exercise of the Exchange Right, mutatis mutandis.
(a) Until the earlier of (i) the closing of the IPO and (ii) the Fall-Away Event, if the Company proposes to issue or sell any capital stock of, other equity or voting interests in, or equity-linked securities of, the Company, including shares of Company Common Stock and any securities that are convertible or exchangeable into (or exercisable for) shares of Company Common Stock or any other class or series of capital stock of, other equity or voting interests in, or equity-linked securities of, the Company, including warrants, options or other rights in respect thereof (such securities, “New Securities”) to any Person or group (within the meaning of Section 13(d) of the Exchange Act) of Persons (each, a “Prospective Subscriber”), then the Stockholder shall be afforded the opportunity to acquire from the Company up to its Preemptive Right Portion (as defined below) of the New Securities for the same price and on the same terms as that offered to each Prospective Subscriber in accordance with the following provisions of this Section 6.4. The amount of New Securities that the Stockholder shall be entitled to purchase in the aggregate shall be determined by multiplying (A) the total number of such offered shares of New Securities by (B) a fraction, the numerator of which is the number of shares of Company Common Stock then Beneficially Owned by the Stockholder and the denominator of which is the total number of outstanding shares of Company Common Stock (the “Preemptive Rights Portion”).
(b) The Company shall give a written notice (the “Preemptive Rights Notice”) to the Stockholder at least ten (10) Business Days prior to the issuance and sale of the New Securities. The Preemptive Rights Notice will include the material terms and conditions of such issuance or sale, including (i) the number of such New Securities to be offered, (ii) the price per security of the New Securities and the other material terms, if any, upon which it proposes to offer such New Securities, (iii) the identity of each Prospective Subscriber and (iv) the proposed date of the issuance or sale of the New Securities.
(c) By notification to the Company within ten (10) Business Days after the Preemptive Rights Notice is given (the “Preemptive Rights Election Period”), the Stockholder may elect in writing (the “Preemptive Rights Exercise Notice”) to purchase or otherwise acquire, at the same time and place and on the same terms and conditions as each Prospective Subscriber, up to the Preemptive Rights Portion of the New Securities. If, at the termination of the Preemptive Rights Election Period, the Stockholder has not exercised its rights under this Section 6.4 to purchase New Securities, the Stockholder shall be deemed to have waived any and all of its rights under this Section 6.4 solely with respect to such issuance and sale of New Securities and the Company may offer and sell such New Securities to any Person or Persons.
(d) The Stockholder shall purchase the New Securities that it has elected to purchase under this Section 6.4 concurrently with the related issuance and sale of such New Securities by the Company (subject to the receipt of any required approvals) to the Prospective Subscribers. If the proposed issuance and sale by the Company of securities which gave rise to the exercise by the Stockholder of its preemptive rights pursuant to this Section 6.4 shall be terminated or abandoned by the Company without the issuance and sale of any New Securities, then the purchase rights of the Stockholder pursuant to this Section 6.4 shall also terminate as to such proposed issuance and sale by the Company (but not any subsequent or future issuance and sale), and any funds in respect thereof paid to the Company or any other Person by the Stockholder in respect thereof shall be promptly refunded in full.
(e) If, at the end of the 120th day after the date of the effectiveness of the Preemptive Rights Exercise Notice, the Company has not completed the applicable issuance and sale of New Securities, then the Stockholder shall be released from the Stockholder’s obligations under the written commitment, the Preemptive Rights Exercise Notice shall terminate, and it shall be necessary for a separate Preemptive Rights Notice to be furnished to the Stockholder, and the terms and provisions of this Section 6.4 separately complied with, in order to consummate such issuance and sale pursuant to this Section 6.4.
(f) The provisions of this Section 6.4 shall not apply to issuances of New Securities by the Company: (i) to the Company or any of its wholly owned Subsidiaries; (ii) upon the exercise or conversion of any exchangeable, exercisable or convertible securities of the Company or the Company Subsidiaries, in each case, issued after the date hereof in a transaction for which the Stockholder had the opportunity to exercise its preemptive rights pursuant to this Section 6.4; (iii) to officers, employees, directors, independent contractors or consultants of the Company or its Subsidiaries in connection with such Person’s employment, independent contractor or consulting agreements or arrangements with the Company or the Company Subsidiaries; (iv) (A) as consideration payable to sellers in any business combination or acquisition transaction involving the acquisition of all or a part of a third party or a business of such third party by the Company or the Company Subsidiaries, (B) in connection with any joint venture or strategic partnership that is entered into for bona fide commercial or strategic purposes and not for purposes of raising capital (as determined by the Board or the appropriate committee of the Board in good faith), or (C) to third-party financial institutions, commercial lenders or any similar third parties in connection with the incurrence or guarantee of indebtedness by the Company or the Company Subsidiaries in a bona fide debt financing transaction (as determined by the Board or the appropriate committee of the Board in good faith); (v) in connection with any stock split, stock dividend paid on a proportionate basis to all holders of Company Common Stock; or (vi) in, or after the closing of, an IPO.
(g) The election by the Stockholder to not exercise its preemptive rights under this Section 6.4 in any one issuance and sale shall not affect its rights as to any subsequent proposed issuance and sale of New Securities. The Company and the Stockholder shall cooperate in good faith to facilitate the exercise of the Stockholder’s rights pursuant to this Section 6.4.
ARTICLE VII
GENERAL PROVISIONS
if to the Company, to:
SAFG Retirement Services, Inc.
00000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
Attention: General Counsel
Email: xxxxx.xxxxx@xxx.xxx
with a copy (not constituting notice) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxx X. Xxx
Xxxx X. Xxxxxxxxx
Email: xxxxxxxxx@xxxx.xxx
xxxxx@xxxx.xxx
xxxxxxxxxxx@xxxx.xxx
if to AIG, to:
American International Group, Inc.
1271 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Email: xxxx.xxxx@xxx.xxx
with a copy (not constituting notice) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxx X. Xxx
Xxxx X. Xxxxxxxxx
Email: xxxxxxxxx@xxxx.xxx
xxxxx@xxxx.xxx
xxxxxxxxxxx@xxxx.xxx
if to the Stockholder, to:
Argon Holdco LLC
c/o Blackstone Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Email: xxxx.xxxxxx@xxxxxxxxxx.xxx
with a copy (not constituting notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
Email: xxxxxxx@xxxxxx.xxx
xxxxxxxxx.xxxxxx@xxxxxx.xxx
(a) This Agreement may be amended, restated, supplemented, modified or terminated, in each case, only by a written instrument signed by each of the Company, AIG and the Stockholder.
(b) A provision of this Agreement may only be waived by a written instrument signed by the party waiving a right hereunder. No delay on the part of a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of a party of any right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege.
7.5 Governing Law. This Agreement and any dispute arising hereunder shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to its principles or rules of conflict of laws, to the extent such principles or rules are not mandatorily applicable by statute and would permit or require the application of the laws of another jurisdiction.
7.6 Arbitration; Jurisdiction; Waiver of Jury Trial.
(a) Each party hereto hereby agrees that any action, directly or indirectly, arising out of, under or relating to this Agreement, other than such actions in respect of Section 6.1 or 6.3 (which actions shall be exclusively governed by Section 7.6(b)) shall exclusively be resolved by a panel of three arbitrators in a confidential expedited arbitration administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules and Mediation Procedures, and judgment on the award rendered by such arbitrators may be entered in any court having jurisdiction thereof. Unless the parties to such action otherwise agree to conduct any arbitration proceeding pursuant to this Section 7.6(a) elsewhere, such proceeding shall be seated and any decision shall be rendered in New York, New York. The arbitration hearings shall take place in New York, New York at a venue to be selected by mutual agreement of the parties to such action. The award rendered by the arbitrators shall be reasoned, final and binding on the parties to the action; provided that (i) by agreeing to arbitration, the parties do not intend to deprive any court with jurisdiction of its ability to issue an injunction, order of specific enforcement, attachment or other form of provisional remedy or non-monetary relief and a request for such remedies by a party to a court shall not be deemed a waiver of this agreement to arbitrate, and (ii) in addition to the authority conferred upon the tribunal by the rules specified above, the tribunal shall also have the authority to grant provisional remedies, including injunctive relief. Any settlement discussions or arbitration proceedings to settle the action occurring under this Agreement shall be conducted in strict confidence. Except as necessary to enforce an award or as required by Applicable Law, no information or documents produced, generated or exchanged in connection with settlement discussions or arbitration proceedings (including any award(s) that might be rendered by the tribunal) shall be disclosed to any Person without the prior written consent of all parties to the settlement or arbitration proceedings. This restriction shall not apply to public records or other documents obtained by the parties in the normal course of business independent of any settlement discussions or arbitration proceedings.
(b) Each party hereto hereby agrees that any action directly or indirectly, arising out of, under or relating to Section 6.1 or 6.3 or for an injunction, order of specific enforcement, attachment or other form of provisional remedy or non-monetary relief shall be brought in and shall exclusively be heard and determined by the Court of Chancery of the State of Delaware and, solely in connection with any such action contemplated by this Section 7.6(b), (i) irrevocably and unconditionally consents and submits to the foregoing and (ii) solely with respect to the actions contemplated by this Section 7.6(b), (A) irrevocably and unconditionally waives any objection to the laying of venue in respect of the Court of Chancery of the State of Delaware courts, (B) irrevocably and unconditionally waives and agrees not to plead or claim that the Court of Chancery of the State of Delaware is an inconvenient forum or does not have personal jurisdiction over any party hereto, and (C) agrees that mailing of process or other papers in connection with any such action in the manner provided herein or in such other manner as may be permitted by Applicable Law shall be valid and sufficient service thereof. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO OTHER PARTY OR REPRESENTATIVE, AGENT OR ATTORNEY THEREOF HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT MAKES SUCH WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.6(B).
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement on the day and year first above written.
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SAFG RETIREMENT SERVICES, INC. |
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By: |
/s/ Xxxxx X. Xxxxx |
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Name: |
Xxxxx X. Xxxxx |
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Title: |
Chief Executive Officer and President |
[Signature Page to Stockholders Agreement]
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AMERICAN INTERNATIONAL GROUP, INC. |
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By: |
/s/ Xxxx Xxxxx |
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Name: |
Xxxx Xxxxx |
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Title: |
Executive Vice President and Chief Financial Officer |
[Signature Page to Stockholders Agreement]
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ARGON HOLDCO LLC |
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By: Blackstone Holdings II L.P., its sole member |
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By: Blackstone Holdings I/II GP L.L.C., its general partner |
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By: |
/s/ Xxxxxxx Xxxx |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Chief Financial Officer |
[Signature Page to Stockholders Agreement]