AMERICAN INTERNATIONAL GROUP, INC. 3.650% Notes Due 2014 6.400% Notes Due 2020 Underwriting Agreement
Exhibit 1.1
EXECUTION VERSION
AMERICAN INTERNATIONAL GROUP, INC.
3.650% Notes Due 2014
6.400% Notes Due 2020
6.400% Notes Due 2020
November 30, 2010
Barclays Capital Inc.,
Citigroup Global Markets Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
As representatives of the several Underwriters
named in Schedule I hereto.
Citigroup Global Markets Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
As representatives of the several Underwriters
named in Schedule I hereto.
c/o Barclays Capital Inc.
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx,
Incorporated
One Bryant Park
New York, NY 10036
Incorporated
One Bryant Park
New York, NY 10036
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
American International Group, Inc., a Delaware corporation (the “Company”), proposes, subject
to the terms and conditions stated in this Underwriting Agreement (the “Agreement”), to issue and
sell to the firms named in Schedule I hereto (the “Underwriters”), for whom you are acting
as Representatives (the “Representatives”), $500,000,000 aggregate principal amount of its 3.650%
Notes Due 2014 (the “2014 Notes”) and $1,500,000,000 aggregate principal amount of its 6.400% Notes
Due 2020 (the “2020 Notes,” and together with the 2014 Notes, the “Securities”). The Securities
will be issued pursuant to the Indenture, dated as of October 12, 2006, as supplemented by the
Fourth Supplemental Indenture, dated as of April 18, 2007 (as so supplemented, the “Base
Indenture”), and as further supplemented by the Eighth Supplemental Indenture and the Ninth
Supplemental Indenture, each to be dated as of December 3, 2010 (the
“Supplemental Indentures,” and together with the Base Indenture, the “Indenture”), each
between the Company and The Bank of New York Mellon, as Trustee (the “Trustee”).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An automatic shelf registration statement as defined in Rule 405 under the Securities Act
of 1933, as amended (the “Act”), on Form S-3 and Post-Effective Amendment No. 1 thereto
(Registration No. 333-160645) in respect of the Securities have been filed with the Securities and
Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof;
pursuant to the Act, such registration statement and any other post-effective amendment thereto
became effective on filing; and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been initiated or, to the
knowledge of the executive officers of the Company, threatened by the Commission and no notice of
objection of the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the
basic prospectus filed as part of such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter
called the “Basic Prospectus”; any preliminary prospectus (including the Basic Prospectus as
supplemented by any preliminary prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act is
hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, as
amended by such post-effective amendment, including all exhibits thereto and the documents
incorporated by reference in the Basic Prospectus at the time such part of the registration
statement became effective but excluding any Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”), and including any prospectus
supplement relating to the Securities that is filed with the Commission and deemed by virtue of
Rule 430A or Rule 430B under the Act to be part of such registration statement, each as amended at
the time such part of the registration statement became effective, are hereinafter collectively
called the “Registration Statement”; the Basic Prospectus as amended and supplemented immediately
prior to the Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the
“Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as
of the date of such prospectus; any reference to any amendment or supplement to the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any post-effective amendment to the Registration Statement, any prospectus supplement relating to
the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any documents
filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated
therein, in each case after the date of the Basic Prospectus, such Preliminary Prospectus or the
Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any “issuer free writing prospectus”
as defined in
Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer Free
Writing Prospectus”;
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(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 6:30 p.m. (Eastern time) on
the date of this Agreement; the Pricing Prospectus, as supplemented by the information contained in
the final term sheet prepared and filed pursuant to Section 5(a) hereof, taken together
(collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; each Issuer Free Writing Prospectus listed on Schedule II(a) hereto does not
conflict with the information contained in the Registration Statement, the Pricing Prospectus or
the Prospectus; and each such Issuer Free Writing Prospectus listed on Schedule II(a), in
each case as supplemented by and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the Representatives
expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Prospectus, when such documents
become effective or are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue statement of a material
fact or, in the case of an Annual Report on Form 10-K, omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or, in the case of any
other document filed under the Exchange Act, omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the Representatives
expressly for use therein;
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(e) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the Trust Indenture Act, and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of its date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material fact or, in the case of
the Registration Statement and any amendment thereto, omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or, in the case of the
Prospectus or any amendment or supplement thereto, omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not apply to (i) any
Statement of Eligibility (Form T-1) of the Trustee under the Trust Indenture Act filed as an
exhibit to the Registration Statement, or (ii) any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by any Underwriter through
the Representatives expressly for use in the Prospectus or any amendment or supplement thereto;
(f) The Company and each of its Significant Subsidiaries (as defined in Rule 1-02(w) of
Regulation S-X) have been duly incorporated or organized and are validly existing corporations or
other entities in good standing under the laws of their respective jurisdiction of incorporation or
organization and have full power and authority to own their respective properties and to conduct
their respective businesses as described in the Prospectus, except, in the case of any Significant
Subsidiary, where the failure to be so duly incorporated or organized, validly existing, in good
standing or have such power or authority would not, individually or in the aggregate, have a
Material Adverse Effect (as defined in Section 1(j) below);
(g) Since the date of the latest audited financial statements incorporated by reference in the
Prospectus as amended or supplemented there has not been (i) any material change in the capital
stock (other than as occasioned by the Company’s common stock, par value $2.50 per share (the
“Common Stock”), having been issued pursuant to the Company’s employee stock purchase plans, equity
incentive plans and upon conversion of convertible securities or by increase in the liquidation
preference of AIG Series F Fixed Rate Non-Cumulative Perpetual Preferred Stock, par value $5.00 per
share), or (ii) any material adverse change in or affecting the business, financial position,
shareholders’ equity or results of operations of the Company and its consolidated subsidiaries
considered as an entirety, in each case, otherwise than as set forth or contemplated in such
Prospectus as amended or supplemented prior to the Applicable Time (any such change described in
clause (ii) is referred to as a “Material Adverse Change”);
(h) This Agreement has been duly authorized, executed and delivered by the Company;
(i) The Securities have been duly authorized and, when issued and delivered pursuant to this
Agreement, the Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to or
affecting
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creditors’ rights and to general equity principles; the Base Indenture has been duly
authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act
and, constitutes a valid and legally binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; each of the Supplemental Indentures has been
duly authorized by the Company and, when executed and delivered by the Company and the Trustee,
will constitute a valid and legally binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the Indenture conforms, and the Securities
will conform, in all material respects to the descriptions thereof contained in the Pricing
Disclosure Package and in the Prospectus;
(j) The issue and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement, and the consummation of the
transactions herein and therein contemplated, will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to which the Company is a party or
by which the Company is bound or to which any of the property or assets of the Company is subject
(including, without limitation, the FRBNY Credit Agreement (as defined below), the Purchase
Agreement, dated as of June 25, 2009, among the Company, American International Reinsurance
Company, Limited and the Federal Reserve Bank of New York (the “FRBNY”), the Purchase Agreement,
dated as of June 25, 2009, between the Company and the FRBNY, the Securities Purchase Agreement,
dated as of November 25, 2008, between the Company and the United States Department of the
Treasury, the Securities Purchase Agreement, dated as of April 17, 2009, between the Company and
the United States Department of the Treasury, the Securities Exchange Agreement, dated as of April
17, 2009, between the Company and the United States Department of Treasury, the Undertaking to
Advance and Reimburse Expenses, dated as of January 16, 2009, by the Company in connection with the
AIG Credit Facility Trust Agreement, dated as of January 16, 2009, the Series C Perpetual,
Convertible Participating Preferred Stock Purchase Agreement, dated as of March 1, 2009, between
AIG Credit Facility Trust and the Company, the Master Investment and Credit Agreement, dated as of
November 25, 2008, among Maiden Lane III LLC, the FRBNY, the Company and the Bank of New York
Mellon, the Asset Purchase Agreement, dated as of December 12, 2008, among the Company, the FRBNY
and a number of other parties thereto), or result in any violation of any statute or any order,
rule or regulation of any court or other governmental agency or body having jurisdiction over the
Company or any of its properties, except, in each case, for such conflicts, breaches, defaults and
violations that would not have a material adverse effect on the business, financial position,
shareholders’ equity or results of operations of the Company and its subsidiaries considered as an
entirety (a “Material Adverse Effect”) or affect the validity of the Securities, nor will such
action result in any violation of the provisions of the Amended and Restated Certificate of
Incorporation, or the By-Laws of the
Company; and no consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body, including without limitation the AIG Credit Facility
Trust and the United States Department of the Treasury, is required by the Company for the issue
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and sale of the Securities or the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except the consent of the FRBNY required by the Credit Agreement,
dated as of September 22, 2008, as amended from time to time (“FRBNY Credit Agreement”), between
the Company and the FRBNY, which consent has been obtained, and except for such consents,
approvals, authorizations, orders, registrations or qualifications the failure to obtain or make
would not have a Material Adverse Effect or affect the validity of the Securities, and such
consents, approvals, authorizations, orders, registrations or qualifications as have been obtained
under the Act or the Trust Indenture Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state securities or Blue Sky laws
(including insurance laws of any state relating to offers and sales of securities in such state) in
connection with the purchase and distribution of the Securities by the Underwriters;
(k) The consolidated historical financial statements and schedules of the Company and its
consolidated subsidiaries included in any Preliminary Prospectus, the Prospectus and the
Registration Statement present fairly, in all material respects, the financial condition, results
of operations and cash flows of the Company as of the dates and for the periods indicated, comply
as to form, in all material respects, with the applicable accounting requirements of the Act and
have been prepared in conformity with U.S. generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except for any normal year-end adjustments, the
adoption of new accounting principles, and except as otherwise noted therein);
(l) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with U.S. generally accepted accounting principles. Except as otherwise
noted in the Registration Statement, any Preliminary Prospectus and the Prospectus, as of the end
of the period covered by the Company’s most recent annual report filed with the SEC on Form 10-K,
the Company’s internal control over financial reporting was effective and the Company was not aware
of any material weaknesses in its internal control over financial reporting;
(m) Except as otherwise noted in the Registration Statement, any Preliminary Prospectus and
the Prospectus, since the date of the latest audited financial statements included or incorporated
by reference in the Prospectus as amended or supplemented, there had been no change in the
Company’s internal control over financial reporting that had materially affected, or was reasonably
likely to materially affect, the Company’s internal control over financial reporting, as of the end
of the period covered by the Company’s most recent periodic report filed with the SEC on Form 10-K
or Form 10-Q;
(n) The Company and its subsidiaries maintain “disclosure controls and procedures” (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made
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known to the Company’s principal
executive officer and principal financial officer by others within those entities; such disclosure
controls and procedures were effective as of the end of the period covered by the Company’s most
recent periodic report filed with the SEC on Form 10-K or Form 10-Q, except as otherwise noted in
the Registration Statement, any Preliminary Prospectus and the Prospectus;
(o) (i) The Company represents that neither the Company nor any of its wholly-owned
subsidiaries (collectively, the “Entity”) nor, to the knowledge of the Company, any director or
officer of the Entity, is an individual or entity (“Person”) that is, or is owned or controlled by
a Person that is: (A) the subject of any sanctions administered or enforced by the U.S. Department
of Treasury’s Office of Foreign Assets Control or the United Nations Security Council
(collectively, the “Sanctions”), or (B) located, organized or resident in a country or territory
that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, North
Korea, Sudan and Syria); and
(ii) The Entity represents and covenants that it will not, directly or
indirectly, use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any
country or territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or (B) in any other manner that will result in a violation of
Sanctions by any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise; and
(p) To the knowledge of the Company, the Company, its wholly-owned subsidiaries, employees,
directors, executive officers and any agent acting on the Company’s or its wholly-owned
subsidiaries’ behalf, have not corruptly paid, offered or promised to pay, or authorized payment of
any monies or a thing of value, directly or indirectly, to any government official (including
employees of government-owned or
-controlled entities or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing) or any political party or party official or candidate for political office (collectively, “Proscribed Recipients”) for the purpose of obtaining or retaining business, or directing business to any Person, by (i) influencing any official act or decision of such Proscribed Recipient, (ii) inducing such Proscribed Recipient to do or omit to do any act in violation of the lawful duty of such Proscribed Recipient, or to use his, her or its influence with a governmental authority to affect or influence any act or decision of such governmental authority or (iii) securing any improper advantage in violation of the U.S. Foreign Corrupt Practices Act (“FCPA”) or any other applicable anti-corruption laws; and the Company and its wholly-owned subsidiaries will maintain policies and procedures designed to promote and achieve compliance with such laws.
-controlled entities or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing) or any political party or party official or candidate for political office (collectively, “Proscribed Recipients”) for the purpose of obtaining or retaining business, or directing business to any Person, by (i) influencing any official act or decision of such Proscribed Recipient, (ii) inducing such Proscribed Recipient to do or omit to do any act in violation of the lawful duty of such Proscribed Recipient, or to use his, her or its influence with a governmental authority to affect or influence any act or decision of such governmental authority or (iii) securing any improper advantage in violation of the U.S. Foreign Corrupt Practices Act (“FCPA”) or any other applicable anti-corruption laws; and the Company and its wholly-owned subsidiaries will maintain policies and procedures designed to promote and achieve compliance with such laws.
(q) (i) The Company has implemented a Global Anti-Money Laundering Policy, and to the
knowledge of the Company, the Company and its wholly-owned subsidiaries
are in material compliance with (A) the applicable financial recordkeeping and reporting
requirements of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(USA PATRIOT Act), and (B) the applicable anti-money laundering statutes of
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jurisdictions where the
Company and its wholly-owned subsidiaries conduct business, including the applicable rules and
regulations issued thereunder (collectively, the “Anti-Money Laundering Laws”); and (ii) to the
knowledge of the Company, no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator, involving the Company or any of its wholly-owned
subsidiaries, with respect to the Anti-Money Laundering Laws, is pending or has been threatened;
(r) The Company and its Significant Subsidiaries possess all licenses, certificates, permits
and other authorizations issued by, and have made all declarations and filings with, the
appropriate federal, state, local or foreign governmental or regulatory authorities that are
necessary for the ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement, any Preliminary Prospectus and
the Prospectus, except where the failure to possess or make the same would not, individually or in
the aggregate, have a Material Adverse Effect; and except as described in the Registration
Statement, any Preliminary Prospectus and the Prospectus, neither the Company nor any of its
Significant Subsidiaries has received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course, in each case,
except where the failure to possess the same or the modification to the same would not,
individually or in the aggregate, have a Material Adverse Effect;
(s) Neither the Company nor any of its Significant Subsidiaries is in violation or default of:
(i) any provision of its respective organizational documents; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound or to which its
property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction over the Company or
such subsidiary or any of its properties, as applicable, except, in the case of clause (ii) and
(iii) only, to the extent it would not have a Material Adverse Effect;
(t) There is no action, suit or proceeding pending, or to the knowledge of the executive
officers of the Company, threatened against the Company or any of its subsidiaries, which (i) has,
or may reasonably be expected in the future to have, a Material Adverse Effect, except as set forth
or contemplated in the Registration Statement, any Preliminary Prospectus and the Prospectus or
(ii) is required to be described in the Registration Statement, any Preliminary Prospectus or the
Prospectus and is not so described; and there are no contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(u) The Company is not, and after giving effect to the offering and sale of the Securities and
the application of the proceeds as described in the Prospectus, would not be
required to be registered as an “investment company” as defined in the Investment Company Act
of 1940, as amended; and
(v) (i) (A) At the time of filing of the Registration Statement, (B) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
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Act (whether
such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Exchange Act or form of prospectus) and (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made
any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the
Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (ii) at the
earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the
Securities, the Company was not an “ineligible issuer” as defined in Rule 405 under the Act.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, (a) at a purchase price of 99.719% of the principal amount thereof, the
principal amount of 2014 Notes set forth opposite the name of such Underwriter in Schedule
I hereto; and (b) at a purchase price of 99.116% of the principal amount thereof, the principal
amount of 2020 Notes set forth opposite the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by the Representatives of the release of such Securities, the
several Underwriters propose to offer such Securities for sale upon the terms and conditions set
forth in the Prospectus.
4. The Securities to be purchased by each Underwriter hereunder will be represented by one or
more definitive global Securities in book-entry form which will be deposited by or on behalf of the
Company with The Depository Trust Company (“DTC”) or its designated custodian. The Company will
deliver the Securities to one or more of the Representatives for the account of each Underwriter,
against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer
of Federal (same-day) funds to the account specified by the Company to the Representatives at least
twenty-four hours in advance, by causing DTC to credit the Securities to the account of one or more
of the Representatives at DTC. The Company will cause the certificates representing the Securities
to be made available to the Representatives for checking prior to the Time of Delivery (as defined
below) at the office of DTC or its designated custodian. The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on December 3, 2010 or such other time and date as
the Representatives and the Company may agree upon in writing. Such time and date are herein
called the “Time of Delivery”.
The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto
pursuant to Section 8 hereof, including the cross-receipt for the Securities, will be delivered at
the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the “Closing
Location”), and the Securities will be credited to the account of the Representatives at DTC, all
at the Time of Delivery. A meeting will be held at the Closing
Location at 4:00 p.m., New York City time, on the New York Business Day next preceding the
Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to
the preceding sentence will be available for review by the parties hereto. For the purposes of
this Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday
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and
Friday which is not a day on which banking institutions in New York City are generally authorized
or obligated by law or executive order to close.
5. The Company covenants and agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business
on the second business day following the date of this Agreement; to make no further amendment or
supplement (other than an amendment or supplement as a result of filings by the Company under the
Exchange Act and other than the filing of prospectuses, preliminary prospectuses, preliminary
prospectus supplements, issuer free-writing prospectuses and other documents pursuant to Rule
424(b) or Rule 433 under the Act) to the Registration Statement or the Prospectus prior to the Time
of Delivery which shall be disapproved by the Representatives promptly after reasonable notice
thereof; not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Act an Issuer Free Writing Prospectus
prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been
required to file thereunder; between the signing of this Agreement and the Time of Delivery, to
give reasonable advance notice to the Representatives of any filings by the Company under the
Exchange Act that are incorporated by reference into the Prospectus and any filings by the Company
under Item 2.02 or 7.01 of Current Report on Form 8-K; between the signing of this Agreement and
the Time of Delivery, to advise the Representatives promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or becomes effective or
any amendment or supplement to the Prospectus has been filed (other than an amendment or supplement
as a result of filings by the Company under the Exchange Act and other than the filing of
prospectuses, preliminary prospectuses, preliminary prospectus supplements, issuer free-writing
prospectuses and other documents pursuant to Rule 424(b) or Rule 433 under the Act), and to furnish
the Representatives with copies thereof; to prepare final term sheets, containing solely a
description of the Securities, substantially in the form set forth in Exhibit A to Schedule
II hereto and to file such term sheets pursuant to Rule 433(d) under the Act within the time
required by such Rule; to file promptly all other material required to be filed by the Company with
the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required in connection with the offering or sale of the
Securities, and during such same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with
the Commission (other than an amendment or supplement as a result of filings by the Company under
the Exchange Act and other than the filing of prospectuses, preliminary prospectuses, preliminary
prospectus supplements, issuer free-writing prospectuses and other documents pursuant to Rule
424(b) or Rule 433 under the Act), of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any prospectus relating to the
Securities, of any notice of objection of the Commission to the use of the Registration Statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension
of the qualification of the Securities for offering or sale in any jurisdiction, of the
10
initiation
or threatening of any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus relating to the Securities or suspending
any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives may reasonably
request to qualify the Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete
the distribution of the Securities; provided, however, that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction;
(c) From time to time, to furnish the Underwriters with written and electronic copies of the
Prospectus in New York City in such quantities as the Representatives may reasonably request, and,
if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) is required at any time prior to the expiration of nine months after the time of issuance
of the Prospectus in connection with the offering or sale of the Securities and if at such time any
event shall have occurred as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made
when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or if for any other reason it shall be necessary during such same period
to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act, to notify the Representatives and
upon their request to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in case any Underwriter is
required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) in connection with sales of any of the Securities at any time nine months or more after
the time of issue of the Prospectus, upon the request of the Representatives but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies
as the Representatives may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and including the
earlier of (i) the termination of trading restrictions for the Securities, as notified to the
Company by the Representatives, and (ii) the Time of Delivery for the Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the Company which
11
mature more
than one year after such Time of Delivery and which are pari passu with, and otherwise
substantially similar to, the Securities, without the prior written consent of the Representatives,
provided, however, that the restriction imposed by this Section 5(e) shall not apply to (i) an
issue of debt securities denominated in a currency other than U.S. dollars, (ii) an issue of debt
securities of which at least 90% (based on gross offering proceeds) is offered and sold outside the
United States, (iii) guarantees by the Company of debt securities of its subsidiaries, (iv) any
securities of the Company issued and delivered to the United Sates Department of the Treasury or
the FRBNY, (v) any indebtedness incurred by the Company in connection with the Company’s asset
disposition plan or any restructuring of the Company’s capital structure, or (vi) any securities of
the Company issued and sold in connection with the remarketing of the Equity Units of the Company;
(f) The Company shall pay the required Commission filing fees relating to the Securities
within the time required by Rule 456(b)(1) under the Act and otherwise in accordance with Rules
456(b) and 457(r) under the Act; and
(g) If the third anniversary of the initial effective date of the Registration Statement
occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary
to file a new shelf registration statement and to take any other action necessary to permit the
public offering of the Securities to continue as contemplated in the expired registration statement
relating to the Securities; references herein to the Registration Statement shall include the new
registration statement declared effective by the Commission.
6. (a) The Company and each Underwriter agree that the Underwriters may prepare and use one or
more preliminary term sheets relating to the Securities containing only customary information.
(b) Each Underwriter represents that it has not and will not use, authorize use of, refer to,
or participate in the planning for use of, any written communication that constitutes an offer to
sell or the solicitation of an offer to buy the Securities other than (i) any written communication
permitted under subparagraph (a) above, (ii) the final term sheet prepared and filed pursuant to
Section 5(a) hereof or (iii) any written communication prepared by such Underwriter and approved in
writing by the Company in advance.
(c) The Company represents to the Underwriters that it has not and will not use, authorize use
of, refer to, or participate in the planning for use of, any written communication that constitutes
an offer to sell or the solicitation of an offer to buy the Securities other than (i) any written
communication permitted under subparagraph (a) above, (ii) an electronic road show prepared with
the assistance of the Representatives (the “Road Show”), (iii) the final term sheet prepared and
filed pursuant to Section 5(a) hereof, (iv) a press release or other announcement relating to the
Securities that complies with Rule 134 or Rule 135 under the Act and that the Company issues after
giving notice to the Representatives of its intent to issue a
press release, or (v) any written communication approved by the Representatives in advance in
writing.
(d) Any such free writing prospectus the use of which has been consented to by the Company or
the Representatives, as the case may be (including the final term sheet
12
prepared and filed pursuant
to Section 5(a) hereof), other than the Road Show, is listed on Schedule II(a) hereto.
(e) The Company represents and agrees that it has complied and will comply with the
requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including
timely filing with the Commission, where required, and legending.
(f) The Company agrees that if at any time following the issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus, or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will, if the Underwriters are then required to deliver a
prospectus under the Act in respect of sales of Securities (or, in lieu thereof, the notice
referred to in Rule 173(a) under the Act), give prompt notice thereof to the Representatives and,
if requested by the Representatives, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (a) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Pricing
Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters; (b) the cost of printing, word-processing or reproducing
this Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities; (c) all expenses in
connection with the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of the Underwriters’
counsel in connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (d) any fees charged by securities rating services for rating the Securities;
(e) any filing fees incident to any required review and clearance by the Financial Industry
Regulatory Authority of the terms of the sale of the Securities; (f) the cost of preparing the
Securities; (g) the fees and expenses of any trustee and any agent of any trustee, and the fees and
disbursements of counsel for any of the foregoing in connection with any Indenture and the
Securities; (h) all costs and expenses related to the transfer and delivery of the Securities to
the Underwriters, including any transfer or other taxes payable in connection with such delivery,
up to an amount as separately agreed; (i) the
costs and expenses of the Company relating to investor presentations on the Road Show
undertaken in connection with the marketing of the offering of the Securities, including, without
limitation, expenses associated with the preparation or dissemination of any electronic road show,
expenses associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
13
prior approval of the
Company, travel and lodging expenses of the representatives and officers of the Company and any
such consultants, and the cost of any aircraft chartered in connection with the road show, up to an
amount as separately agreed; and (j) all other costs and expenses incident to the performance of
the Company’s obligations hereunder and under the Indenture which are not otherwise specifically
provided for in this Section, but the Company shall not in any event be liable to any of the
Underwriters for damages on account of loss of anticipated profits from the sale by them of the
Securities. It is understood that, except as provided in this Section, Section 9 and Section 12
hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
8. The obligations of the Underwriters shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and other statements of
the Company herein shall be true and correct in all material respects, at and as of the Time of
Delivery, the condition that the Company shall have performed, in all material respects, all of its
obligations hereunder theretofore to be performed and the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have been initiated by the
Commission or, to the knowledge of the executive officers of the Company, shall be threatened or
contemplated by the Commission; no notice of objection of the Commission to the use of the form of
the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Act shall have been received by the Company; the Prospectus and each Issuer Free Writing
Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer
Free Writing Prospectus to the extent required by Rule 433 under the Act); and all requests for
additional information on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Representatives;
(b) Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel to the Underwriters, shall have furnished to
the Representatives such opinion and letter, each dated the Time of Delivery, with respect to the
Indenture, the validity of the Securities, the Registration Statement, the Pricing Disclosure
Package, the Prospectus, and other related matters as the Representatives may reasonably request,
and the Company shall have furnished to such counsel such documents as they reasonably request to
enable them to pass upon such matters;
(c) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, shall have furnished to the
Representatives their opinion or opinions, dated the Time of Delivery, to the effect set forth in
Schedule III hereto;
(d) Xxxxxxxx X. Xxxxxxx, Senior Vice President and Deputy General Counsel of the Company,
shall have furnished to the Representatives her opinion, dated the Time of Delivery, to the effect
set forth in Schedule IV hereto;
(e) On the date of the Prospectus and at the Time of Delivery, the independent registered
public accounting firm who have audited the financial statements of the Company and its
subsidiaries incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus shall have furnished to the Representatives a letter, dated the
14
respective dates of delivery thereof, in a form agreed to by the Company and the Representatives on
or prior to the date hereof, and with respect to such letter dated such Time of Delivery, as to
such other matters as the Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) Since the respective dates as of which information is given in the Pricing Disclosure
Package (excluding any amendment or supplement thereto) and prior to the Time of Delivery, there
shall not have been any Material Adverse Change or any development involving a prospective Material
Adverse Change which, in the judgment of the Representatives, materially impairs the investment
quality of the Securities, otherwise than as set forth or contemplated in the Pricing Disclosure
Package or the Prospectus (excluding any amendment or supplement thereto);
(g) The Company shall have furnished or caused to be furnished to the Representatives a
certificate of the Chief Executive Officer, the President, any Vice Chairman, any Executive or
Senior Vice President or any Vice President and a principal financial or accounting officer of the
Company, dated the Time of Delivery, in which such officers, to the best of their knowledge after
reasonable investigation, shall state that (i) the representations and warranties of the Company in
this Agreement are true and correct, in all material respects, as of the Time of Delivery, (ii) the
Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied, in all material respects, at or prior to the Time of Delivery, (iii) no stop order
suspending the effectiveness of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or are threatened by the Commission, and (iv) since the
respective dates as of which information is given in the Pricing Disclosure Package, (A) there has
not been any Material Adverse Change, otherwise than as set forth or contemplated in the Pricing
Disclosure Package or the Prospectus as amended or supplemented in accordance with Section 5(a)
hereof and (B) none of the events set forth in Section 8(h)(vi) below has occurred; and
(h) On or after the date hereof, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
if the effect of any such event, in the reasonable judgment of the Representatives, is to make it
impracticable or inadvisable to proceed with the purchase by the Underwriters of the Securities
from the Company; (ii) any suspension of trading imposed by a regulatory agency or similar body on
any securities of the Company on any United States exchange or in any United States
over-the-counter market; (iii) a material disruption in securities settlement, payment or clearance
services in the City of New York shall have occurred; (iv) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State authorities; (v) (A)
the outbreak or escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, other than any such outbreak, escalation or
declaration arising out of or relating to the U.S. war on terrorism that does not represent a
significant departure from the conditions that exist at the date hereof, or (B) any other calamity
or crisis if the effect of any such event set forth in this subclause (v) in the
reasonable judgment of the Representatives is to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms and in the manner
contemplated by the Pricing Disclosure Package or the Prospectus as amended or supplemented in
accordance with Section 5(a) hereof; or (vi) any downgrading, or any written notice of any
15
intended
downgrading or of any possible change that does not indicate the direction of the possible change,
in each case in the rating accorded the Company’s senior debt securities by Xxxxx’x Investors
Service, a subsidiary of Xxxxx’x Corporation, or Standard & Poor’s, a division of the XxXxxx-Xxxx
Companies, Inc., if the effect of such event in the reasonable judgment of the Representatives is
to make it impracticable or inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated by the Pricing Disclosure Package or the
Prospectus as amended or supplemented in accordance with Section 5(a) hereof.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement or the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, the Pricing Disclosure Package (or any
amendment or supplement thereto), or any Issuer Free Writing Prospectus, or any omission or alleged
omission to state therein a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, and will reimburse such
Underwriter for any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, the Pricing Disclosure Package
or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by such Underwriter expressly for
use therein.
(b) Each Underwriter will, severally and not jointly, indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company or such controlling person
may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of any material fact contained in the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, the
Pricing Disclosure Package or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, the Pricing Disclosure Package or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the Representatives expressly for
use therein; and will reimburse the Company for any legal or other expenses
16
reasonably incurred by
the Company in connection with investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection except to the extent that it has been prejudiced by such failure. In case any such
action is brought against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case subsequently incurred
by such indemnified party, in connection with the defense thereof other than reasonable costs of
investigation. The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff that is not subject to further appeal, the indemnifying party agrees to
indemnify each indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnification could have been
sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters of the Securities on the other from the offering of the Securities to
which such loss, claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted by applicable law,
then each indemnifying party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters of the Securities on the other
in connection with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to the total
17
underwriting discounts and commissions received by such Underwriters in respect thereof. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by such Underwriters on the other
and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the applicable
Securities underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such Securities and not
joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 9 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the Company within the
meaning of the Act; provided that the Underwriters shall have no obligation to indemnify the AIG
Credit Facility Trust, its trustees or any department, agency or instrumentality of the United
States federal government.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which it
has agreed to purchase, the Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter, the Representatives do not arrange
for the purchase of such Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that, within the
prescribed period, the Representatives notify the Company that they have so arranged for the
purchase of such Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the Registration
Statement or
18
the Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as
used in this Agreement shall include any person substituted under this Section with like effect as
if such person had originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased
does not exceed one-tenth of the aggregate principal amount of the Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the principal amount of
Securities which such Underwriter agreed to purchase under this Agreement relating to such
Securities and, in addition, to require each non defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter agreed to purchase under
this Agreement) of the Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of Securities which remains unpurchased
exceeds one tenth of the aggregate principal amount of the Securities, as referred to in subsection
(b) above, or if the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or
Underwriters, then this Agreement relating to such Securities shall thereupon terminate, without
liability on the part of any non defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If the sale of the Securities provided for herein is not consummated, or if this Agreement
is terminated by the Underwriters, because any condition to the obligations of the Underwriters set
forth in Section 8 hereof is not satisfied (other than any termination pursuant to Section 8(h)(i),
(iii), (iv) or (v) hereof), or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been reasonably incurred by them in
connection with this Agreement or the proposed purchase and sale of the Securities, but the
19
Company
shall then be under no further liability to any Underwriter with respect to such Securities except
as provided in Section 7 and Section 9 hereof.
13. In all dealings hereunder, the Representatives of the Underwriters of the Securities shall
act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by
such Representatives jointly.
All statements, requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to an Underwriter, shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to the Representatives at the notice
address set forth in Schedule I, and if to the Company shall be sufficient in all respects
when delivered or sent by registered mail to 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile
Transmission No. (000) 000-0000, Attention: General Counsel.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Section 9 and Section 11 hereof, the
officers and directors of the Company and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, personal representatives, successors and
assigns, and no other person shall acquire or have any right under or by virtue of this Agreement.
No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
15. The Company acknowledges and agrees that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (b) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (c) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (d) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate.
16. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
17. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
18. The Company hereby confirms that neither it nor its property located in the United States
is entitled to assert a defense of sovereign immunity (whether from jurisdiction,
service of process or attachment) in any legal action, suit or proceeding based on this
Agreement which may be instituted in any federal, state or local court in the United States.
19. Time shall be of the essence in this Agreement.
20
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all of such counterparts shall
together constitute one and the same instrument.
21
If the foregoing is in accordance with your understanding, please sign and return to us five
counterparts hereof, whereupon this letter and the acceptance by each of you thereof shall
constitute a binding agreement between the Company and each of you in accordance with its terms.
Very truly yours, AMERICAN INTERNATIONAL GROUP, INC. |
||||
By | /s/ Xxxxxx X. Gender | |||
Name: | Xxxxxx X. Gender | |||
Title: | Vice President and Treasurer | |||
Accepted in New York, New York XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX, INCORPORATED |
||||
By | /s/ Xxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxx | |||
Title: | Managing Director | |||
BARCLAYS CAPITAL INC. |
||||
By | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Managing Director | |||
CITIGROUP GLOBAL MARKETS INC. |
||||
By | /s/ Xxxx X. XxXxxxxxx, Xx. | |||
Name: | Xxxx X. XxXxxxxxx, Xx. | |||
Title: | Managing Director | |||
XXXXXX XXXXXXX & CO. INCORPORATED |
||||
By | /s/ Xxxxx Xxxx | |||
Name: | Xxxxx Xxxx | |||
Title: | Executive Director | |||
[Signature Page to Underwriting Agreement]
SCHEDULE I
Principal Amount of | ||||||||
Securities to be | ||||||||
Purchased | ||||||||
Underwriter | 2014 Notes | 2020 Notes | ||||||
Barclays Capital Inc. |
$ | 100,000,000 | $ | 300,000,000 | ||||
Citigroup Global Markets Inc. |
100,000,000 | 300,000,000 | ||||||
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx,
Incorporated |
100,000,000 | 300,000,000 | ||||||
Xxxxxx Xxxxxxx & Co. Incorporated |
100,000,000 | 300,000,000 | ||||||
Nomura International plc |
12,500,000 | 37,500,000 | ||||||
RBC Capital Markets, LLC |
12,500,000 | 37,500,000 | ||||||
Scotia Capital (USA) Inc. |
12,500,000 | 37,500,000 | ||||||
SMBC Nikko Capital Markets Limited |
12,500,000 | 37,500,000 | ||||||
Standard Chartered Bank |
12,500,000 | 37,500,000 | ||||||
Xxxxx Fargo Securities, LLC |
12,500,000 | 37,500,000 | ||||||
Xxxxxxxx Xxxxxx Xxx, LLC |
4,166,667 | 12,500,000 | ||||||
CastleOak Securities, L.P. |
4,166,667 | 12,500,000 | ||||||
Xxxxxxx Brothers, L.P. |
4,166,667 | 12,500,000 | ||||||
Lebenthal & Co., LLC |
4,166,667 | 12,500,000 | ||||||
X.X. Xxxx and Company |
4,166,666 | 12,500,000 | ||||||
Xxxxxxxxx Capital Partners, LLC |
4,166,666 | 12,500,000 | ||||||
Total |
$ | 500,000,000 | $ | 1,500,000,000 | ||||
I-1
Notice Addresses of the Representatives:
Barclays Capital Inc.
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Syndicate Registration
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Syndicate Registration
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx,
Incorporated
One Bryant Park
New York, New York 10036
Fax: (000) 000-0000.
Attention: High Grade Debt Capital Markets Transaction Management/Legal
Incorporated
One Bryant Park
New York, New York 10036
Fax: (000) 000-0000.
Attention: High Grade Debt Capital Markets Transaction Management/Legal
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Investment Banking Division
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Investment Banking Division
I-2
Schedule II
(a) | Issuer Free Writing Prospectuses: |
Final Term Sheets, substantially in the form attached as Exhibit A to Schedule
II, as filed with the Commission pursuant to Rule 433, and dated November 30, 2010.
(b) | Additional Documents Incorporated by Reference: |
None.
II-1
Exhibit A to Schedule II
Form of Final Term Sheets
American International Group
$500,000,000
3.650% Notes Due 2014
Issuer: | American International Group, Inc. | |||
Legal Format: | SEC Registered | |||
Securities: | 3.650% Notes Due 2014 | |||
Expected Ratings (Xxxxx’x/S&P): | [Reserved.] | |||
Security Type: | Senior Unsecured Fixed Rate Notes | |||
Trade Date: | November 30, 2010 | |||
Settlement Date: | December 3, 2010 (T+3) | |||
Maturity Date: | January 15, 2014 | |||
Principal Amount: | $500,000,000 | |||
Price to Public: | 99.969% of principal amount | |||
Gross Underwriting Discount: | 0.250% | |||
Proceeds to Issuer Before Expenses: | $498,595,000 | |||
Spread to Treasury Benchmark: | 295 basis points | |||
Treasury Benchmark: | 0.500% due November 15, 2013 | |||
Treasury Benchmark Yield: | 0.709% | |||
Coupon: | 3.650% | |||
Yield to Maturity: | 3.659% | |||
Interest Payment Dates: | Semi-annually on the 15th of January and July, commencing July 15th, 2011 | |||
Optional Redemption: | Make-whole redemption at any time at a discount rate of US Treasury + 50 bps | |||
CUSIP; ISIN: | 000000XX0; US026874BV83 | |||
Book-Running Managers: | BofA Xxxxxxx Xxxxx | |||
Barclays Capital | ||||
Citi | ||||
Xxxxxx Xxxxxxx | ||||
Co-Managers:
|
Senior | Junior | ||
Nomura | Xxxxxxxx | |||
RBC | Castle Oak | |||
Scotia | Xxxxxxx Brothers | |||
SMBC | Xxxxxxxxx | |||
Standard Chartered | XX Xxxx | |||
Xxxxx Fargo | Xxxxxxxxx |
The issuer has filed a registration statement, including a prospectus, with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by
contacting Barclays Capital Inc. toll-free at 0-000-000-0000, Citigroup Global Markets Inc.
toll-free at 0-000-000-0000, Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated toll-free at
0-000-000-0000, or Xxxxxx Xxxxxxx & Co. Incorporated toll-free at 0-000-000-0000.
II-2
American International Group
$1,500,000,000
6.400% Notes Due 2020
Issuer: | American International Group, Inc. | |||
Legal Format: | SEC Registered | |||
Securities: | 6.400% Notes Due 2020 | |||
Expected Ratings (Xxxxx’x/S&P): | [Reserved.] | |||
Security Type: | Senior Unsecured Fixed Rate Notes | |||
Trade Date: | November 30, 2010 | |||
Settlement Date: | December 3, 2010 (T+3) | |||
Maturity Date: | December 15, 2020 | |||
Principal Amount: | $1,500,000,000 | |||
Price to Public: | 99.741% of principal amount | |||
Gross Underwriting Discount: | 0.625% | |||
Proceeds to Issuer Before Expenses: | $1,486,740,000 | |||
Spread to Treasury Benchmark: | 362.5 basis points | |||
Treasury Benchmark: | 2.625% due November 15, 2020 | |||
Treasury Benchmark Yield: | 2.810% | |||
Coupon: | 6.400% | |||
Yield to Maturity: | 6.435% | |||
Interest Payment Dates: | Semi-annually on the 15th of June and December, commencing June 15th, 2011 | |||
Optional Redemption: | Make-whole redemption at any time at a discount rate of US Treasury + 50 bps | |||
CUSIP; ISIN: | 000000XX0; US026874BW66 | |||
Book-Running Managers: | BofA Xxxxxxx Xxxxx | |||
Barclays Capital | ||||
Citi | ||||
Xxxxxx Xxxxxxx | ||||
Co-Managers: | Senior | Junior | ||
Nomura | Xxxxxxxx | |||
RBC | Castle Oak | |||
Scotia | Xxxxxxx Brothers | |||
SMBC | Xxxxxxxxx | |||
Standard Chartered | XX Xxxx | |||
Xxxxx Fargo | Xxxxxxxxx |
The issuer has filed a registration statement, including a prospectus, with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by
contacting Barclays Capital Inc. toll-free at 0-000-000-0000, Citigroup Global Markets Inc.
toll-free at 0-000-000-0000, Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated toll-free at
0-000-000-0000, or Xxxxxx Xxxxxxx & Co. Incorporated toll-free at 0-000-000-0000.
II-3
SCHEDULE III
Form of Opinion of Xxxxxxxx & Xxxxxxxx LLP
[Date]
[Name of Underwriter(s)]
[Address(es)]
[Address(es)]
Ladies and Gentlemen:
In connection with the several purchases today by you and the other Underwriters named in
Schedule I to the Underwriting Agreement, dated [•], 20•• (the “Underwriting Agreement”), between
American International Group, Inc., a Delaware corporation (the Company”), and you, as
Representatives of the several Underwriters named therein (the “Underwriters”), of $[•] aggregate
principal amount of the Company’s [•] % Notes due [2014] (the “2014 Notes”) and $[•] aggregate
principal amount of the Company’s [•] % Notes due [2020] (the “2020 Notes”, together with the 2014
Notes, the “Securities”) issued pursuant to the Indenture, dated as of October 12, 2006, as
supplemented by the Fourth Supplemental Indenture, dated as of April 18, 2007 (as so supplemented,
[the “Original Indenture”), and as further supplemented by the [Eighth] Supplemental Indenture and
the [Ninth] Supplemental Indenture, each to be dated as of •, 2010 (the “Supplemental Indentures,”
and together with the Original Indenture,] the “Indenture”), each between the Company and The Bank
of New York Mellon, as Trustee (the “Trustee”), we, as counsel for the Company, have examined such
corporate records, certificates and other documents, and such questions of law, as we have
considered necessary or appropriate for the purposes of this opinion. Upon the basis of such
examination, it is our opinion that:
(1) The Company has been duly incorporated and is an existing corporation in
good standing under the laws of the State of Delaware.
(2) The Indenture has been duly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act of 1939; the Securities have
been duly authorized, executed, authenticated, issued and delivered; and the
Indenture and the Securities constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general
equity principles.
(3) The Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds as described in the Prospectus
relating to the Securities, would not be on the date hereof, required to be
registered as an “investment company” as defined in the Investment Company Act of
1940, as amended.
(4) All regulatory consents, authorizations, approvals and filings required to
be obtained or made by the Company under the Covered Laws for the execution and
delivery by the Company of, and the performance by the Company of its obligations
III-1
under, the Securities, the Indenture and the Underwriting Agreement (the
“Covered Documents”) have been obtained or made.
(5) The execution and delivery by the Company of, and the performance by the
Company of its obligations under, the Covered Documents will not violate any Covered
Laws, except for such violations that would not have a Material Adverse Effect (as
defined in Section 1(j) of the Underwriting Agreement) or affect the validity of the
Securities.
(6) The execution and delivery by the Company of the Covered Documents do not,
and the performance by the Company of its obligations under the Covered Documents
will not, (a) violate the Company’s Amended and Restated Certificate of Incorporation
or the Company’s By-laws, in each case as in effect on the date hereof, or (b) result
in a default under or breach of any of the agreements listed on Annex A, except in
the case of clause (b) for such defaults or breaches that would not have a Material
Adverse Effect (as defined in Section 1(j) of the Underwriting Agreement) or affect
the validity of the Securities; provided, however, that we are
expressing no opinion in clause (b) of this paragraph as to compliance with any
financial or accounting test, or any limitation or restriction expressed as a dollar
amount, ratio or percentage.
(7) The Underwriting Agreement has been duly authorized, executed and delivered
by the Company.
The foregoing opinion is limited to the Federal laws of the United States, the laws of the
State of New York and the General Corporation Law of the State of Delaware, and we are expressing
no opinion as to the effect of the laws of any other jurisdiction.
We are expressing no opinion in paragraphs (4) and (5) above, insofar as performance by the
Company of its obligations under any Covered Document is concerned, as to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors’ rights. Also, for purposes of the opinions in paragraphs (4) and (5)
above, “Covered Laws” means the federal laws of the United States, the laws of the State of
New York and the General Corporation Law of the State of Delaware (including in each case the
published rules or regulations thereunder) that in our experience normally are applicable to
general business corporations and transactions such as those contemplated by the Covered Documents;
provided, however, that, for purposes of paragraph (5) above, such term does not
include Federal securities laws and, for purposes of paragraphs (4) and (5) above, such term does
not include state securities laws, insurance laws of any jurisdiction, antifraud laws and
fraudulent transfer laws, tax laws, the Employee Retirement Income Security Act of 1974, antitrust
laws or any law that is applicable to the Company, the Covered Documents or the transactions
contemplated thereby solely as part of a regulatory regime applicable to the Company or its
affiliates due to its or their status, business or assets.
We have relied as to certain matters upon information obtained from public officials, officers
of the Company and other sources believed by us to be responsible, and we have assumed that the
Indenture has been duly authorized, executed and delivered by the Trustee, that the Securities
conform to the respective specimens thereof examined by us, that the Trustee’s certificates of
authentication of the Securities have been manually signed by one of the Trustee’s authorized
officers,
II-5
and that the signatures on all documents examined by us are genuine, assumptions which we have
not independently verified.
This letter is furnished by us, as counsel to the Company, to you, as Representatives of the
several Underwriters, solely for the benefit of the Underwriters in their capacity as such, and may
not be relied upon by any other person. This letter may not be quoted, referred to or furnished to
any purchaser or prospective purchaser of the Securities and may not be used in furtherance of any
offer or sale of the Securities.
Very truly yours,
II-6
Annex A
1. | Credit Agreement, dated as of September 22, 2008, as amended by Amendment No. 1, dated as of September 25, 2008, Amendment No. 2, dated as of November 9, 2008, Amendment No. 3, dated as of April 17, 2009, Amendment No. 4, dated as of December 1, 2009, between the Company and the Federal Reserve Bank of New York; | |
2. | Securities Purchase Agreement, dated as of November 25, 2008, between the Company and the United States Department of the Treasury; | |
3. | Series C Perpetual, Convertible Participating Preferred Stock Purchase Agreement, dated as of March 1, 2009, as amended by Amendment No. 1, dated as of April 17, 2009, and Amendment No. 2, dated as of October 7, 2010, between the AIG Credit Facility Trust and the Company; | |
4. | Securities Exchange Agreement, dated as of April 17, 2009, between the Company and the United States Department of the Treasury; | |
5. | Securities Purchase Agreement, dated as of April 17, 2009, between the Company and the United States Department of the Treasury; | |
6. | Purchase Agreement, dated as of June 25, 2009, among the Company, American International Reinsurance Company, Limited and the FRBNY; | |
7. | Purchase Agreement, dated as of June 25, 2009, between the Company and the FRBNY; | |
8. | Undertaking to Advance and Reimburse Expenses, dated as of January 16, 2009, by the Company in connection with the AIG Credit Facility Trust Agreement, dated as of January 16, 2009; | |
9. | Master Investment and Credit Agreement, dated as of November 25, 2008, among Maiden Lane III LLC, the FRBNY, the Company and The Bank of New York Mellon; | |
10. | Asset Purchase Agreement, dated as of December 12, 2008, among American General Life Insurance Company, American General Life and Accident Insurance Company, The United States Life Insurance Company in the City of New York, AIG Life Insurance Company, American International Life Assurance Company of New York, American Life Insurance Company, AIG Annuity Insurance Company, The Variable Annuity Life Insurance Company, SunAmerica Life Insurance Company, First SunAmerica Life Insurance Company, AIG SunAmerica Life Assurance Company, AIG Securities Lending Corp., as AIG Agent, the Company, Maiden Lane II LLC, as Buyer, and the FRBNY, as Controlling Party; | |
11. | Stock Purchase Agreement, dated as of March 7, 2010, among the Company, ALICO Holdings LLC and MetLife, Inc.; | |
12. | Indenture dated as of July 15, 1989, from American International Group, Inc. to The Bank of New York, as supplemented by the First Supplemental Indenture dated as of May 15, 2003, the Second Supplemental Indenture dated as of September 30, 2005; the Third Supplemental |
II-7
Indenture dated as of April 20, 2006; and the Fourth Supplemental Indenture dated as of June 16, 2006; | ||
13. | Junior Subordinated Debt Indenture dated as of March 13, 2007 between American International Group, Inc. and The Bank of New York, as supplemented by the First Supplemental Indenture dated as of March 13, 2007; the Second Supplemental Indenture dated as of March 15, 2007; the Third Supplemental Indenture dated as of March 15, 2007; the Fourth Supplemental Indenture dated as of June 7, 2007; the Fifth Supplemental Indenture dated as of December 18, 2007; the Sixth Supplemental Indenture dated as of May 16, 2008; the Seventh Supplemental Indenture dated as of May 16, 2008; the Eighth Supplemental Indenture dated as of May 16, 2008; the Ninth Supplemental Indenture dated as of May 20, 2008; the Tenth Supplemental Indenture dated as of May 22, 2008; and the Eleventh Supplemental Indenture dated as of May 22, 2008; and | |
14. | Senior Indenture, dated as of April 15, 1993, between American International Group, Inc. (as successor of SunAmerica Inc.) and XX Xxxxxx Xxxxx Bank (as successor to The First National Bank of Chicago) . | |
15. | Senior Indenture dated as of November 15, 1991, between American International Group, Inc. (as successor of SunAmerica Inc.) and XX Xxxxxx Xxxxx Bank (as successor to The First National Bank of Chicago); | |
16. | Indenture dated as of November 9, 2007 among AIG Program Funding, Inc., American International Group, Inc. and The Bank of New York Mellon (formerly known as The Bank of New York); and | |
17. | Indenture dated as of June 16, 2006 among AIG Matched Funding Corp., American International Group, Inc. and The Bank of New York Mellon (formerly known as The Bank of New York). |
II-8
Form of Letter of Xxxxxxxx & Xxxxxxxx LLP
[Date]
[Name of Underwriter(s)]
[Address]
[Address]
Ladies and Gentlemen:
This is with reference to the registration under the Securities Act of 1933 (the “Act”) and
offering of $[•] aggregate principal amount of [•] % Notes due [2013] and $[•] aggregate principal
amount of [•] % Notes due [2017] (collectively, the “Securities”) of American International Group,
Inc. (the “Company”).
The Registration Statement relating to the Securities (File No. 333-160645) was filed on
Form S-3 in accordance with procedures of the Securities and Exchange Commission (the “Commission”)
permitting a delayed or continuous offering of securities pursuant thereto and, if appropriate, a
post-effective amendment, document incorporated by reference therein or prospectus supplement that
provides information relating to the terms of the securities and the manner of their distribution.
The Registration Statement was amended by a Post-Effective Amendment No. 1 thereto (the
“Post-Effective Amendment”), and any reference in this letter to the “Registration Statement”
refers to the Registration Statement as amended by the Post-Effective Amendment. The Securities
have been offered by the Prospectus dated [•], 20•• (the “Basic Prospectus”), as supplemented by
the Prospectus Supplement, dated [•], 20•• (the “Prospectus Supplement”), [which updates or
supplements certain information contained in the Basic Prospectus]. The Basic Prospectus, as
supplemented by the Prospectus Supplement, does not necessarily contain a current description of
the Company’s business and affairs since, pursuant to Form S-3, it incorporates by reference
certain documents filed with the Commission that contain information as of various dates.
As counsel to the Company, we reviewed the Registration Statement, the Basic Prospectus, the
Prospectus Supplement and the documents listed in Schedule A hereto (those listed documents, taken
together with the Basic Prospectus, being referred to herein as the “Pricing Disclosure Package”),
and participated in discussions with your representatives and those of the Company and its
accountants. Between the date of the Prospectus Supplement and the time of delivery of this
letter, we participated in further discussions with your representatives and those of the Company,
its accountants and its counsel concerning certain matters relating to the Company and reviewed
certificates of certain officers of the Company, a letter addressed to you from the Company’s
accountants and an opinion addressed to you from counsel to the Company. On the basis of the
information that we gained in the course of the performance of the services referred to above,
considered in the light of our understanding of the applicable law (including the requirements of
Form S-3 and the character of the prospectus contemplated thereby) and the experience we have
gained through our practice under the Act, we confirm to you that, in our opinion, the Registration
Statement, as of the date of the Prospectus Supplement, and the Basic Prospectus, as supplemented
by the Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on their face
to be appropriately responsive, in all material respects relevant to the offering of the
Securities, to the requirements of the Act, the Trust Indenture Act
II-9
of 1939 and the applicable rules and regulations of the Commission thereunder. Also, we confirm to
you that the statements contained in the Registration Statement, the Basic Prospectus and the
Prospectus Supplement under the captions “Description of Debt Securities AIG May Offer” in the
Basic Prospectus and [“Description of the [Notes]”] and [“Underwriting”] in the Prospectus
Supplement, in each case insofar as they relate to provisions of the Securities, the Indenture
under which the Securities are being issued and the Underwriting Agreement relating to the
Securities therein described, constitute a fair and accurate summary of such provisions in all
material respects.
Further, nothing that came to our attention in the course of such review has caused us to
believe that, insofar as relevant to the offering of the Securities,
(a) the Registration Statement, as of the date of the Prospectus Supplement, contained any
untrue statement of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or
(b) the Pricing Disclosure Package, as of [__:00] [A/P].M. on [•] [, when considered together
with [insert reference to any disclosure added in the final prospectus supplement]], contained any
untrue statement of a material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, or
(c) the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
We also advise you that nothing that came to our attention in the course of the procedures
described in the second sentence of the preceding paragraph has caused us to believe that the Basic
Prospectus, as supplemented by the Prospectus Supplement, as of the time of delivery of this
letter, contained any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
The limitations inherent in the independent verification of factual matters and the character
of determinations involved in the registration process are such, however, that we do not assume any
responsibility for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Post-Effective Amendment, the Basic Prospectus, the Prospectus
Supplement or the Pricing Disclosure Package, except to the extent specifically noted in the last
sentence of the second preceding paragraph. Also, we do not express any opinion or belief as to
the financial statements or other financial data derived from accounting records contained in the
Registration Statement, the Post-Effective Amendment, the Basic Prospectus, the Prospectus
Supplement or the Pricing Disclosure Package, or as to management’s report of its assessment of the
effectiveness of the Company’s internal control over financial reporting or the auditors’ report as
to the Company’s internal control over financial reporting, each as included in the Registration
Statement, the Post-Effective Amendment, the Basic Prospectus, the Prospectus Supplement or the
Pricing Disclosure Package, or as to the statement of the eligibility and qualification of the
Trustee under the Indenture under which the Securities are being issued.
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This letter is furnished by us, as counsel to the Company, to you, as Representatives of the
several Underwriters, solely for the benefit of the Underwriters in their capacity as such, and may
not be relied upon by any other person. This letter may not be quoted, referred to or furnished to
any purchaser or prospective purchaser of the Securities and may not be used in furtherance of any
offer or sale of the Securities.
Very truly yours,
II-11
Schedule A
[List documents other than the Basic Prospectus that are included in the Pricing Disclosure Package
, including the Preliminary Prospectus Supplement and the final term sheet prepared pursuant to
Section 5(a) of the Underwriting Agreement.]
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SCHEDULE IV
Form of Opinion of Xxxxxxxx X. Xxxxxxx
[Date]
[Name and Address of Underwriters]
Ladies and Gentlemen:
I am Senior Vice President and Deputy General Counsel of American International Group, Inc., a
Delaware corporation (the “Company”), and, as such, I am generally familiar with the corporate
affairs of the Company.
This opinion is rendered in connection with the several purchases today by you and the other
Underwriters named in Schedule I to the Underwriting Agreement, dated [•], 20•• (the “Underwriting
Agreement”), between the Company and you, as Representatives of the several Underwriters named
therein (the “Underwriters”), of $[•] aggregate principal amount of the Company’s [•] % Notes due
[2013](the “2013 Notes”) and $[•] aggregate principal amount of the Company’s [•] % Notes due
[2017] (the “2017 Notes”, together with the 2013 Notes, the “Securities”) issued pursuant to the
Indenture, dated as of October 12, 2006, as supplemented by the Fourth Supplemental Indenture,
dated as of April 18, 2007 (as so supplemented, [the “Original Indenture”), and as further
supplemented by the [Eighth] Supplemental Indenture and, solely with respect to 2017 Notes, the
[Ninth] Supplemental Indenture, each to be dated as of •, 2010 (the “Supplemental Indentures,” and
together with the Original Indenture,] the “Indenture”), each between the Company and The Bank of
New York Mellon, as Trustee (the “Trustee”).
The Registration Statement relating to the Securities (File No. 333-160645) was filed on
Form S-3 in accordance with procedures of the Securities and Exchange Commission (the “Commission”)
permitting a delayed or continuous offering of securities pursuant thereto and, if appropriate, a
post-effective amendment, document incorporated by reference therein or prospectus supplement that
provides information relating to the terms of the securities and the manner of their distribution.
The Registration Statement was amended by a Post-Effective Amendment No. 1 thereto (the
“Post-Effective Amendment”), and any reference in this letter to the “Registration Statement”
refers to the Registration Statement as amended by the Post-Effective Amendment. The Securities
have been offered by the Prospectus dated [•], 20•• (the “Basic Prospectus”), as supplemented by
the Prospectus Supplement, dated [•], 20•• (the “Prospectus Supplement”), [which updates or
supplements certain information contained in the Basic Prospectus]. The Basic Prospectus, as
supplemented by the Prospectus Supplement, does not necessarily contain a current description of
the Company’s business and affairs since, pursuant to Form S-3, it incorporates by reference
certain documents filed with the Commission that contain information as of various dates.
In rendering my opinion, I, as Senior Vice President and Deputy General Counsel of the
Company, have examined the Registration Statement, the Basic Prospectus, the Prospectus Supplement
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and the documents listed in Schedule A hereto (those listed documents, taken together with the
Basic Prospectus as amended or supplemented immediately prior to the Applicable Time (as defined
below), being referred to herein as the “Pricing Disclosure Package”), and I have examined such
corporate records, certificates and other documents, and have reviewed such questions of law, as I
have considered necessary or appropriate for the purposes of this opinion. Upon the basis of such
examination and review, it is my opinion that:
(i) To the best of my knowledge and information, there are no contracts or other documents
required to be summarized or disclosed or filed as exhibits to the Registration Statement other
than those summarized or disclosed in the Registration Statement or filed as exhibits thereto, and
there are no legal or governmental proceedings pending or threatened of a character required to be
disclosed in the Registration Statement and the Basic Prospectus, as supplemented by the Prospectus
Supplement, which are not disclosed and properly described therein;
(ii) The Company has been duly incorporated and is an existing corporation in good standing
under the laws of the State of Delaware; the Company has corporate power and authority to own its
properties and to conduct its businesses as described in the Basic Prospectus, as supplemented by
the Prospectus Supplement;
(iii) Each of the subsidiaries of the Company named on Annex I has been duly incorporated or
organized and is an existing corporation [or other entity] in good standing under the laws of its
respective jurisdiction of incorporation [or organization]; and each of such subsidiaries has
corporate [or other organizational] power and authority to own its respective properties and to
conduct its respective business as described in the Basic Prospectus, as supplemented by the
Prospectus Supplement, except where the failure to have such power would not, individually or in
the aggregate, have a Material Adverse Effect as defined in Section 1(j) of the Underwriting
Agreement;
(iv) The issue and sale of the Securities, and the compliance by the Company with all of the
provisions of the Securities, the Indenture and the Underwriting Agreement will not result in a
breach of any of the terms or provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement, or other material agreement or instrument in effect on the
date hereof and known to me, to which the Company is a party or by which the Company may be bound
or to which any of the property or assets of the Company is subject or violate any judgment, order
or decree of any court or other governmental body applicable to the Company, except for such
breaches, defaults and violations that would not have a Material Adverse Effect (as defined in the
Underwriting Agreement) or affect the validity of the Securities, nor will such action result in
any violation of the provisions of the Amended and Restated Certificate of Incorporation or the
By-Laws of the Company in effect on the date hereof [or in a violation of any Federal laws of the
United States, the laws of the State of New York or the General Corporation Law of the State of
Delaware (including in each case the published rules or regulations thereunder) that in my
experience normally would be applicable to general business corporations and transactions such as
those contemplated by the Underwriting Agreement; provided, however, that such term does not
include Federal or state securities laws, other antifraud laws and fraudulent transfer laws, tax
laws, the Employee Retirement Income Security Act of 1974, antitrust laws or any law that is
applicable to the Company, the Underwriting Agreement or the transactions contemplated thereby
solely as part of a regulatory regime applicable to the Company or its affiliates due to its or
their status, business or assets)]. No consent, approval, authorization, order, registration or
qualification of or with any court or any regulatory authority or other governmental body is
required for
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the issue and sale of the Securities or the consummation by the Company of the other transactions
contemplated by the Underwriting Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act, and except the consent of the Federal Reserve Bank of
New York (“FRBNY”) required by the Credit Agreement, dated as of September 22, 2008, as amended
from time to time, between the Company and FRBNY, which consent has been obtained, and except for
such consents, approvals, authorizations, orders, registrations or qualifications the failure to
obtain or make would not have a Material Adverse Effect or affect the validity of the Securities or
as may be required under state securities or Blue Sky laws (including insurance laws of any state
relating to offers and sales of securities in such state) in connection with the purchase and
distribution of the Securities by the Underwriters, as contemplated by the Underwriting Agreement;
(v) Nothing which came to my attention has caused me to believe that, insofar as relevant to
the offering of the Securities,
(a) the Registration Statement, as of the date of the Prospectus Supplement, contained
any untrue statement of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(b) the Pricing Disclosure Package, as of [__:00] [A/P].M. on [•] (the “Applicable
Time”) [, when considered together with [insert reference to any disclosure added in the
final prospectus supplement]], contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or
(c) the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the date
of the Prospectus Supplement and as the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(vi) The statements contained in the Registration Statement, the Basic Prospectus, the
Prospectus Supplement, under the captions [“Description of Debt Securities AIG May Offer”] in the
Basic Prospectus and [“Description of the [Notes] We May Offer”] and [“Underwriting”] in the
Prospectus Supplement, in each case insofar as they relate to provisions of the Securities, the
Indenture and the Underwriting Agreement, constitute a fair and accurate summary of such provisions
in all material respects; and
(vii) The documents incorporated by reference in the Basic Prospectus, as supplemented by the
Prospectus Supplement, as of the date they became effective or were filed with the Commission, as
the case may be, complied as to form in all material respects with the Act and the Exchange Act and
the rules and regulations thereunder.
(viii) To the best of my knowledge, there are no legal or governmental proceedings pending or
threatened of a character required to be disclosed in the Registration Statement and the Basic
Prospectus, as supplemented by the Prospectus Supplement, which are not disclosed and described
therein.
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In rendering the opinion in paragraph (v), I do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Registration Statement, the
Post-Effective Amendment, the Basic Prospectus, the Prospectus Supplement or the Pricing Disclosure
Package, except to the extent specifically noted in paragraph (vi). Also, in rendering the opinion
in paragraphs (v), (vi) and (vii), I do not express any opinion or belief as to the financial
statements or other financial data derived from accounting records contained in the Registration
Statement, the Post-Effective Amendment, the Basic Prospectus, the Prospectus Supplement or the
Pricing Disclosure Package, or as to management’s report of its assessment of the effectiveness of
the Company’s internal control over financial reporting or the auditors’ report as to the Company’s
internal control over financial reporting, each as included in the Registration Statement, the Post
Effective Amendment, the Basic Prospectus, the Prospectus Supplement or the Pricing Disclosure
Package, or as to the statement of the eligibility and qualification of the Trustee.
The foregoing opinion is limited to the Federal laws of the United States, the laws of the
State of New York, [insert jurisdictions of local counsel named below] and the General Corporation
Law of the State of Delaware, and I am expressing no opinion as to the effect of the laws of any
other jurisdiction. With respect to all matters of [insert jurisdictions of local counsel] law, I
have relied upon the opinions, dated ______________, of ____________________, General Counsel of
[name of subsidiary], [add names of other local counsel for other jurisdictions] delivered to you
pursuant to Section __ of the Underwriting Agreement, and my opinion is subject to the same
[assumptions][,] [qualifications] [and] [limitations] with respect to such matters as are contained
in such opinions. In addition, in rendering the opinion in (iii) above, insofar as it concerns
(a) American Home Assurance Company, I have relied on the opinion, dated ___________, of
____________, General Counsel of American Home Assurance Company, and (b) Commerce and Industry
Insurance Company, I have relied on the opinion, dated __________, of ___________, General Counsel
of Commerce and Industry Insurance Company, and in each case my opinion is subject to the same
[assumptions][,] [qualifications] [and] [limitations] with respect to such matters as are contained
in such opinions.]
I have also relied as to certain matters upon information obtained from public officials,
officers of the Company and other sources believed by me to be responsible, and I have assumed that
the Indenture has been duly authorized, executed and delivered by the Trustee, that the Securities
conform to the respective specimens thereof examined by me, that the Trustee’s certificates of
authentication of the Securities have been manually signed by one of the Trustee’s authorized
officers, and that the signatures on all documents examined by me are genuine, assumptions which I
have not independently verified.
This letter is furnished by me, as Senior Vice President and Deputy General Counsel of the
Company, to you, as Representatives of the Underwriters, solely for the benefit of the Underwriters
in their capacity as such, and may not be relied upon by any other person. This opinion may not
be quoted, referred to or furnished to any purchaser or prospective purchaser of the Securities and
may not be used in furtherance of any offer or sale of the Securities.
Very truly yours,
II-16
Schedule A
[List documents other than the Basic Prospectus that are included in the Pricing Disclosure Package
, including the Preliminary Prospectus Supplement and the final term sheet prepared pursuant to
Section 5(a) of the Underwriting Agreement.]
II-17
Annex I
American General Life Insurance Company
The Variable Annuity Life Insurance Company
SunAmerica Life Insurance Company
American Home Assurance Company
Commerce and Industry Insurance Company
National Union Fire Insurance Company of Pittsburgh, Pa.
Lexington Insurance Company
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