EXCHANGE AGENT AGREEMENT
Exhibit 99.6
[ ],
2009
The Bank of New York Mellon
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
American International Group, Inc. (the “Company”)
proposes to make an offer (the “Exchange Offer”) to
exchange up to $4,000,000,000 of its 8.175%
Series A-6
Junior Subordinated Debentures (the “New Junior
Subordinated Debentures”), which have been registered under
the Securities Act of 1933, as amended (the “Securities
Act”), for $4,000,000,000 of its outstanding 8.175%
Series A-6
Junior Subordinated Debentures (the “Old Junior
Subordinated Debentures”), which have not been registered
under the Securities Act. The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a
prospectus, dated
[ ],
2009 (the “Prospectus”), and a Letter of Transmittal,
a copy of which is attached as Annex A to the Prospectus
(the “Letter of Transmittal”), proposed to be
distributed to all record holders of the Old Junior Subordinated
Debentures. The Old Junior Subordinated Debentures and the New
Junior Subordinated Debentures are collectively referred to
herein as the “Junior Subordinated Debentures.”
The Company hereby appoints The Bank of New York Mellon to act
as exchange agent (the “Exchange Agent”) in connection
with the Exchange Offer. References hereinafter to
“you” shall refer to The Bank of New York Mellon.
The Exchange Offer is expected to be commenced by the Company on
or about
[ ],
2009. The Automated Tender Offer Program (“ATOP”) of
The Depository Trust Company (“DTC”) is to be
used by the holders of the Old Junior Subordinated Debentures to
accept the Exchange Offer. The Letter of Transmittal contains
instructions with respect to the delivery of Old Junior
Subordinated Debentures tendered in connection therewith.
The Exchange Offer shall commence on
[ ],
2009 (the “Effective Time”) and shall expire at
5:00 p.m., New York City time, on
[ ],
2009 or on such subsequent date or time to which the Company may
extend the Exchange Offer (the “Expiration Date”).
Subject to the terms and conditions set forth in the Prospectus,
the Company expressly reserves the right to extend the Exchange
Offer from time to time and may extend the Exchange Offer by
giving oral (promptly confirmed in writing) or written notice to
you before 5:00 p.m., New York City time, on the previously
scheduled Expiration Date. If the Exchange Offer is extended,
then the term “Expiration Date” shall mean the latest
date and time to which the Exchange Offer is extended.
The Company expressly reserves the right to amend the Exchange
Offer or to delay acceptance of Old Junior Subordinated
Debentures, or to terminate the Exchange Offer if, in the
Company’s sole judgment, any of the conditions of the
Exchange Offer specified in the Prospectus under the caption
“The Exchange Offer — Conditions to the Exchange
Offer” shall not have been satisfied. The Company will give
oral (promptly confirmed in writing) or written notice of any
amendment, delay or termination to you as promptly as
practicable. In carrying out your duties as Exchange Agent, you
are to act in accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus
captioned “The Exchange Offer,” as specifically set
forth in the Letter of Transmittal or as specifically set forth
herein; provided, however, that in no way will
your general duty to act in good faith be discharged by the
foregoing.
2. You will establish a book-entry account with respect to
the Old Junior Subordinated Debentures at DTC to facilitate
book-entry tenders of the Old Junior Subordinated Debentures
through DTC’s ATOP for the Exchange Offer within two
business days after the date of the Prospectus, and any
financial institution that is a participant in DTC’s
systems may make book-entry delivery of the Old Junior
Subordinated Debentures by causing DTC to transfer such Old
Junior Subordinated Debentures into your account in accordance
with DTC’s procedure for such transfer.
3. From and after the Effective Time, you are hereby
authorized and directed to accept and to examine each of the
Letters of Transmittal and confirmation of book-entry transfer
into your account at DTC and any other documents delivered or
mailed to you by or for holders of the Old Junior Subordinated
Debentures to ascertain whether: (i) the Letters of
Transmittal (or the instructions from DTC (the “DTC
Transmissions”)) contain the proper information required to
be set forth therein and any such other documents (including a
Notice of Guaranteed Delivery, substantially in the form
attached
hereto as Exhibit B (the “Notice of Guaranteed
Delivery”)) are duly executed and properly completed in
accordance with instructions set forth therein; and
(ii) that book-entry confirmations are in due and proper
form and contain the information required to be set forth
therein. In each case where the Letter of Transmittal or any
other document has been improperly completed or executed (or any
DTC Transmission is not in due and proper form or omits required
information) or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor to
inform the Holders of the need for fulfillment of all
requirements. If such condition is not promptly remedied by the
Holder, you shall report such condition to the Company and await
its direction. All questions as to the validity, form,
eligibility (including timeliness of receipt), acceptance and
withdrawal of any Old Junior Subordinated Debentures tendered or
delivered shall be determined by the Company, in its sole
discretion.
4. You are authorized to request that any person tendering
Old Junior Subordinated Debentures provide you with such
additional documents as you or the Company deems appropriate.
You are hereby authorized and directed to process withdrawals of
tenders to the extent withdrawal thereof is authorized by the
Exchange Offer.
5. The Company reserves the absolute right (i) to
reject any or all tenders of any particular Old Junior
Subordinated Debenture determined by the Company not to be in
proper form or the acceptance or exchange of which may, in the
opinion of Company’s counsel, be unlawful and (ii) to
waive any of the conditions of the Exchange Offer or any
defects, irregularities or conditions to the tender of any
particular Old Junior Subordinated Debenture, and the
Company’s interpretation of the terms and conditions of the
Exchange Offer (including the Letter of Transmittal and Notice
of Guaranteed Delivery and the instructions set forth therein)
will be final and binding.
6. With the approval of the Chief Executive Officer, Chief
Financial Officer or Treasurer, of the Company (such approval,
if given orally, to be promptly confirmed in writing) or any
other officer of the Company designated by the Chief Executive
Officer (each an “Authorized Officer”), you are
authorized to waive any irregularities in connection with any
tender of Old Junior Subordinated Debentures pursuant to the
Exchange Offer.
7. Tenders of Old Junior Subordinated Debentures may be
made only as set forth in the Letter of Transmittal and in the
section of the Prospectus captioned “The Exchange
Offer — Procedures for Tendering,” and Old Junior
Subordinated Debentures shall be considered properly tendered to
you only when tendered in accordance with the procedures set
forth therein.
Notwithstanding the provisions of this Section 7, Old
Junior Subordinated Debentures which an Authorized Officer shall
approve as having been properly tendered shall be considered to
be properly tendered (such approval, if given orally, shall be
promptly confirmed in writing).
8. You shall advise the Company with respect to any Old
Junior Subordinated Debentures received subsequent to the
Expiration Date and accept the Company’s written
instructions with respect to disposition of such Old Junior
Subordinated Debentures.
9. Upon satisfaction or waiver of all of the conditions to
the Exchange Offer, the Company will notify you (such notice, if
given orally, to be promptly confirmed in writing) of its
acceptance, promptly after the Expiration Date, of all Old
Junior Subordinated Debentures properly tendered and you, on
behalf of the Company, will exchange such Old Junior
Subordinated Debentures for New Junior Subordinated Debentures
and cause such Old Junior Subordinated Debentures to be
cancelled and delivered to the Company. Delivery of New Junior
Subordinated Debentures will be made on behalf of the Company by
you, and each $1,000 principal amount of Old Junior Subordinated
Debentures shall be exchanged for an equal principal amount of
New Junior Subordinated Debentures; provided,
however, that New Junior Subordinated Debentures shall
only be issued in denominations of $1,000 and integral multiples
of $1,000 in excess thereof. Such delivery shall be made
promptly after notice (such notice if given orally, to be
promptly confirmed in writing) of acceptance of said Old Junior
Subordinated Debentures by the Company; provided,
however, that in all cases, Old Junior Subordinated
Debentures tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of confirmation of
book-entry transfer into your account at DTC, a properly
completed and duly executed Letter of Transmittal (or manually
signed facsimile thereof) with any required signature guarantees
(or DTC Transmission) and, if applicable, a Notice of Guaranteed
Delivery, and any other required documents.
10. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set
forth in the Prospectus and the Letter of Transmittal, Old
Junior Subordinated Debentures tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
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11. The Company shall not be required to exchange any Old
Junior Subordinated Debentures tendered if any of the conditions
set forth in the Exchange Offer are not met. Notice of any
decision by the Company not to exchange any Old Junior
Subordinated Debentures tendered shall be given (if given
orally, to be promptly confirmed in writing) by the Company to
you.
12. If, pursuant to the Exchange Offer, the Company does
not accept for exchange all or part of the Old Junior
Subordinated Debentures tendered because of an invalid tender,
the occurrence of certain other events set forth in the
Prospectus under the captions “The Exchange
Offer — Terms of the Exchange Offer” or “The
Exchange Offer — Conditions to the Exchange
Offer” or otherwise, you shall as soon as practicable after
the expiration or termination of the Exchange Offer effect
appropriate book-entry transfer, together with any related
required documents that are in your possession, to the persons
who deposited the Old Junior Subordinated Debentures not
accepted for exchange.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker,
dealer, bank or other persons or to engage or utilize any person
to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act
unless the same constitutes your own negligence, willful
misconduct or bad faith, and in no event shall you be liable to
the Company for special, indirect or consequential damages, or
lost profits, arising in connection with this Agreement;
(b) shall have no duties or obligations other than those
specifically set forth herein or in the Prospectus or as may be
subsequently agreed to in writing between you and the Company;
(c) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value or genuineness of any of the Old Junior Subordinated
Debentures deposited with you pursuant to the Exchange Offer,
and will not be required to and will make no representation as
to the validity, value or genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action
hereunder which might in your judgment involve any expense or
liability, unless you shall have been furnished with indemnity
reasonably satisfactory to you;
(e) may conclusively rely on and shall be protected in
acting in reliance upon any certificate, instrument, opinion,
notice, letter, telegram or other document or security delivered
to you and reasonably believed by you to be genuine and to have
been signed or presented by the proper person or persons;
(f) may act upon any tender, statement, request, document,
agreement, certificate or other instrument whatsoever not only
as to its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which you shall reasonably
believe to be genuine or to have been signed or presented by the
proper person or persons;
(g) may conclusively rely on, and shall be protected in
acting upon, written or oral instructions from any authorized
officer of the Company or from Company’s counsel;
(h) may consult with counsel of your selection with respect
to any questions relating to your duties and responsibilities
and the advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by you hereunder in good
faith and in accordance with the advice or opinion of such
counsel; and
(i) shall not make any recommendation as to whether a
holder or beneficial owner of Old Junior Subordinated Debentures
should or should not tender such holder’s or beneficial
owner’s Old Junior Subordinated Debentures and shall not
solicit any holder or beneficial owner for the purpose of
causing such holder or beneficial owner to tender such
holder’s or beneficial owner’s Old Junior Subordinated
Debentures.
15. You shall take such action as may from time to time be
requested by the Company (and such additional action as you may
deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery or such other
forms as may be approved from time to time by the Company to all
persons requesting such documents, and to accept and comply with
telephone, mail or facsimile requests for information relating
to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing
from) the Exchange
3
Offer. The Company will furnish you with copies of such
documents on your request. All other requests for information
relating to the Exchange Offer shall be directed to the Company,
Attention: Director of Investor Relations,
000-000-0000.
16. You shall advise by electronic communication to Xxxxxx
Gender, Vice President and Treasurer (Xxxxxx.Xxxxxx@xxx.xxx),
and such other person or persons as the Company may reasonably
request, weekly (and daily during the week immediately preceding
the Expiration Date) up to and including the Expiration Date, as
to the principal amount of Old Junior Subordinated Debentures
which have been duly tendered since the previous report and the
aggregate amount tendered since the Effective Date pursuant to
the Exchange Offer until the Expiration Date. Such report shall
be delivered in substantially the form attached hereto as
Exhibit C. In addition, you will also inform, and
cooperate in making available to, the Company or any such other
person or persons as the Company may request upon oral request
(promptly confirmed in writing) made from time to time prior to
the Expiration Date of such other information as they may
reasonably request. Such cooperation shall include, without
limitation, the granting by you to the Company and such person
as the Company may request of access to those persons on your
staff who are responsible for receiving tenders in order to
ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable
it to decide whether to extend the Exchange Offer. Within two
business days after the Expiration Date, (i) you shall
prepare a final list of all persons whose tenders were accepted,
the aggregate principal amount of Old Junior Subordinated
Debentures tendered, the aggregate principal amount of Old
Junior Subordinated Debentures accepted, and (ii) you shall
deliver said list to the Company.
17. Each Letter of Transmittal and other documents received
by you in connection with the Exchange Offer shall be stamped by
you to show the date of receipt (and you will maintain such form
of record of receipt as is customary for tenders through ATOP)
and, if defective, the date and time the last defect was cured
or waived. You shall retain all Letters of Transmittal and other
related documents or correspondence received by the Exchange
Agent until the Expiration Date. You shall return all such
material to the Company as soon as practicable after the
Expiration Date.
18. For services rendered as Exchange Agent hereunder, you
shall be entitled to such compensation as shall be agreed in
writing between the Company and you.
19. You hereby acknowledge receipt of the Prospectus, the
Letter of Transmittal and the Notice of Guaranteed Delivery. Any
discrepancies or questions regarding any Letter of Transmittal,
notice of withdrawal or any other documents received by you in
connection with the Exchange Offer shall be referred to the
Company and you shall have no further duty with respect to such
matter; provided, that you shall cooperate with the
Company in attempting to resolve such discrepancies or
questions. Any inconsistency between this Agreement, on the one
hand, and the Prospectus and the Letter of Transmittal (as they
may be amended from time to time), on the other hand, shall be
resolved in favor of the latter two documents, except with
respect to your duties, liabilities and indemnification as
Exchange Agent.
20. The Company covenants and agrees to indemnify and hold
you harmless against any and all losses, damages, claims,
liabilities, costs or expenses, including attorneys’ fees
and expenses, incurred without negligence, willful misconduct or
bad faith on your part, arising out of or in connection with
your appointment and acting thereunder, including without
limitation any act, omission, delay or refusal made by you in
reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid,
genuine and sufficient, in accepting any tender or effecting any
transfer of Old Junior Subordinated Debentures reasonably
believed by you to be authorized, and in reasonably delaying or
refusing to accept any tenders or effect any transfer of Old
Junior Subordinated Debentures. In each case, the Company shall
be notified by you, by letter or facsimile transmission, of the
written assertion of a claim against you or of any other action
commenced against you, promptly after you shall have received
any such written assertion or shall have been served with a
summons in connection therewith. The Company shall be entitled
to participate at its own expense in the defense of any such
claim or other action and, if the Company so elects, the Company
may assume the defense of any such claim or action and you shall
cooperate with the Company in the defense. In the event that the
Company assumes the defense of any such claim or action, the
Company shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you, so long as you
have not determined, in your reasonable judgement, that a
conflict of interest exists between you and the Company.
21. You shall comply with all requirements under the tax
laws of the United States imposed with respect to the activities
performed by you pursuant to this Agreement, including filing
with the Internal Revenue Service and Holders Form 1099
reports regarding principal and interest payments on Junior
Subordinated Debentures, compliance with backup withholding and
record retention which you have made in connection with the
Exchange Offer, if any. Any questions with
4
respect to any tax matters relating to the Exchange Offer shall
be referred to the Company, and you shall have no duty with
respect to such matter; provided, that you shall
cooperate with the Company in attempting to resolve such
questions.
22. You shall notify the Company in a timely manner
regarding any transfer taxes that are payable in respect of the
exchange of Old Junior Subordinated Debentures of which you
become aware.
23. This Agreement and your appointment as Exchange Agent
hereunder shall be governed by, and construed in accordance
with, the laws of the State of New York and shall inure to the
benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
24. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original
and all of which together shall constitute one and the same
agreement.
25. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or
in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. This
Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in
writing (including facsimile or similar writing) and shall be
given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company:
American International Group, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone:
000-000-0000
Facsimile:
000-000-0000
Attention: Vice President & Treasurer
If to the Exchange Agent:
The Bank of New York Mellon
000 Xxxxxxx Xxxxxx
Xxxxx 0X
Xxx Xxxx, XX 00000
Facsimile:
000-000-0000
Attention: Corporate Trust Administration
or to such other address as either party shall provide by notice
to the other party.
28. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, Sections 18 and 20
shall survive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the
Company any funds or property then held by you as Exchange Agent
under this Agreement.
29. You may resign from your duties under this Agreement by
giving to the Company thirty (30) days’ prior written
notice, and the Company may terminate your appointment hereunder
on five (5) days’ prior written notice. Any successor
exchange agent appointed by the Company shall be vested with the
same powers, rights, duties and responsibilities as if it had
been originally named as Exchange Agent without any further act
or deed, but you shall deliver and transfer to the successor
exchange agent any property at the time held by you hereunder
and shall, upon payment of your charges thereunder, execute and
deliver any further assurance, conveyance, act or deed necessary
for such purpose as the Company may reasonably request. If an
instrument of acceptance by a successor exchange agent shall not
have been delivered to the Exchange Agent within 30 days
after the giving of such notice of removal or resignation, the
Exchange Agent being removed or resigning may petition any court
of competent jurisdiction for the appointment of a successor
Exchange Agent. The Company will pay all reasonable expenses in
connection with such petition.
5
30. You may not transfer or assign or delegate your rights
or responsibilities under this Agreement without the prior
written consent of the Company.
31. This Agreement shall be binding and effective as of the
date hereof.
32. EACH OF THE COMPANY AND THE EXCHANGE AGENT HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
JUNIOR SUBORDINATED DEBENTURES OR THE TRANSACTION CONTEMPLATED
HEREBY.
33. In no event shall the Exchange Agent be responsible or
liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or
indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software
and hardware) services; it being understood that the Exchange
Agent shall use reasonable efforts which are consistent with
accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the
enclosed copy.
American International Group, Inc.
By: |
|
Name:
Title: |
Accepted as of the date first above written:
The Bank of New York Mellon
By: |
|
Name:
Title: |
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Exhibit A
PROSPECTUS
AND LETTER OF TRANSMITTAL
A-1
Exhibit B
NOTICE OF
GUARANTEED DELIVERY
B-1
Exhibit C
SAMPLE
REPORT
DATE:
PREPARED
BY:
ADMIN:
EXCHANGE OFFER. REPORT #
AMERICAN INTERNATIONAL GROUP, INC.
8.175% Series A-6 Junior Subordinated Debentures
CUSIP: [ ]
PRINCIPAL AMOUNT: $4,000,000,000
AMERICAN INTERNATIONAL GROUP, INC.
8.175% Series A-6 Junior Subordinated Debentures
CUSIP: [ ]
PRINCIPAL AMOUNT: $4,000,000,000
A TOP
SUBMISSIONS
PARTICIPANTS
|
DTC # | QUANTITY PRESENTED | ||||||
Total DTC Participants Presented
|
= | |||||||
DTC PARTICIPANTS
|
$ | |||||||
GUARANTEE DELIVERY
|
$ | |||||||
WITHDRAWALS
|
||||||||
Total A/O [date]
|
= | $ |
C-1