EXECUTION COPY 

SECURITIES EXCHANGE AGREEMENT 

dated as of 

April 17, 2009 

between 

American International Group, Inc. 

and 

United States Department of the Treasury 
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TABLE OF CONTENTS 

PAGE

ARTICLE 1

EXCHANGE; CLOSING

1.1 Exchange................................................................................................................... 1 

1.2 Closing. ..................................................................................................................... 1 

1.3 Interpretation. ........................................................................................................... 3 

ARTICLE 2

REPRESENTATIONS AND WARRANTIES

2.1 Disclosure. ................................................................................................................ 4 

2.2 Representations and Warranties of the Company. ................................................... 5 

2.3 Representations and Warranties of the Investor....................................................... 7 

ARTICLE 3

COVENANTS

3.1 Consummation of Exchange and Charter Amendment............................................. 8 

3.2 Expenses.................................................................................................................... 9 

3.3 Exchange Listing....................................................................................................... 9 

3.4 Certain Notifications Until Closing.......................................................................... 9 

3.5 Information and Confidentiality. ............................................................................ 10 

3.6 Additional Inspection Rights................................................................................... 11 

3.7 Exchange of Warrant. ............................................................................................. 11 

3.8 Exchange of Series E Preferred Stock. ................................................................... 12 

3.9 Compliance with the Employ American Workers Act............................................. 12 

3.10 Compliance with Guidelines of the Home Affordable Modification Program. ...... 12 

3.11 Internal Controls..................................................................................................... 12 

ARTICLE 4

ADDITIONAL AGREEMENTS

4.1 Purchase of Restricted Securities. .......................................................................... 13 

4.2 Legends. .................................................................................................................. 13 

4.3 Certain Transactions. ............................................................................................. 14 

4.4 Transfer of Series E Preferred Stock and Exchange Shares................................... 14 

4.5 Registration Rights.................................................................................................. 14 

4.6 Depositary Shares................................................................................................... 26 

4.7 Restriction on Dividends and Repurchases. ........................................................... 26 

4.8 Repurchase of Investor Securities........................................................................... 28 

4.9 Executive Compensation......................................................................................... 29 
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4.10 Restrictions on Lobbying. ....................................................................................... 32 

4.11 Restrictions on Expenses......................................................................................... 32 

4.12 Risk Management Committee. ................................................................................ 32 

4.13 Dividend Rate Adjustment....................................................................................... 33 

ARTICLE 5

MISCELLANEOUS

5.1 Termination............................................................................................................. 33 

5.2 Survival of Representations and Warranties. ......................................................... 33 

5.3 Amendment.............................................................................................................. 33 

5.4 Waiver of Conditions. ............................................................................................. 34 

5.5 Governing Law: Submission to Jurisdiction, Etc. .................................................. 34 

5.6 Notices..................................................................................................................... 34 

5.7 Definitions............................................................................................................... 35 

5.8 Assignment. ............................................................................................................. 35 

5.9 Severability. ............................................................................................................ 36 

5.10 Entire Agreement. ................................................................................................... 36 

5.11 No Third Party Beneficiaries.................................................................................. 36 

5.12 Survival of Series D Preferred Stock Purchase Agreement.................................... 36 

SCHEDULE A: ADDITIONAL TERMS AND CONDITIONS 

SCHEDULE B: CAPITALIZATION 

LIST OF ANNEXES 

ANNEX A: FORM OF CERTIFICATE OF DESIGNATIONS FOR 

 PREFERRED STOCK 

ANNEX B: FORM OF OPINION 
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INDEX OF DEFINED TERMS 

Term 

Location of 

Definition 

Affiliate 5.7(c) 

Agreement Recitals 

Appraisal Procedure 4.8(c)(i) 

Benefit Plans 1.2(d)(v) 

Board of Directors 2.2(e) 

Business Combination 5.8 

business day 1.3 

Capitalization Date 2.2(b) 

Certificate of Designations 1.2(d)(iv) 

Certificate of Elimination 1.2(d)(iii) 

Charter 2.2(a) 

Closing 1.2(a) 

Closing Date 1.2(a) 

Common Stock 2.1 

Company Recitals 

Company Material Adverse Effect 2.1 

Company Subsidiary; Company Subsidiaries 2.2(d)(ii) 

Compensation Regulations 4.9(a) 

Control 4.8(c)(iii) 

control; controlled by; under common control with 5.7(c) 

Covered Employee 4.9(b)(3) 

Credit Agreement 3.5(a) 

EESA 1.2(d)(v) 

Equity Interests 5.7(b) 

Exchange Recitals 

Exchange Act 3.4 

Exchange Shares 3.7(a) 

Fair Market Value 4.8(c)(ii) 

FRBNY 3.5(a) 

Fund 5.7(b) 

Funds 4.9(e) 

GAAP 2.1 

Governmental Entities 1.2(c) 

Holder 4.5(k)(i) 

Holders’ Counsel 4.5(k)(ii) 

Indemnitee 4.5(g)(i) 

Information 3.5(b) 

Investor Recitals 

Junior Stock 4.7(c) 

Parity Stock 4.7(c) 
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Term 

Location of 

Definition 

Pending Underwritten Offering 4.5(l) 

Permitted Repurchases 4.7(a)(ii) 

Piggyback Registration 4.5(a)(iv) 

Plans 1.2(d)(v) 

register; registered; registration 4.5(k)(iii) 

Registrable Securities 4.5(k)(iv) 

Registration Expenses 4.5(k)(v) 

Relevant Period 1.2(d)(v) 

Rule 144; Rule 144A; Rule 159A; Rule 405; Rule 415 4.5(k)(vi) 

SEC 2.2(d)(iii) 

Securities Act 2.2(a) 

Selling Expenses 4.5(k)(vii) 

Senior Executive Officers 4.9(b)(1) 

Senior Partners 4.9(b)(1) 

Series C Preferred Stock 2.2(b) 

Series C Preferred Stock Purchase Agreement 3.7(a) 

Series D Preferred Stock Recitals 

Series D Preferred Stock Purchase Agreement 4.7(a) 

Series E Preferred Stock Recitals 

Share Dilution Amount 4.7(a)(ii) 

Shelf Registration Statement 4.5(a)(ii) 

Signing Date 2.1 

Special Registration 4.5(i) 

Stockholder Proposal 3.1(b) 

subsidiary 5.7(a) 

Transfer 4.4 

Trust 3.7(a) 

Warrant 3.7(a) 

Warrant Exchange 3.7(a) 
SECURITIES EXCHANGE AGREEMENT 

Recitals: 

WHEREAS, on November 25, 2008, American International Group, Inc. (the 

“Company”) issued to the United States Department of the Treasury (the “Investor”) in a 

private placement 4,000,000 shares of the Series D Fixed Rate Cumulative Perpetual Preferred 

Stock (the “Series D Preferred Stock”); 

WHEREAS, the Company and the Investor intend to exchange (the “Exchange”) the 

4,000,000 shares of Series D Preferred Stock for 400,000 shares of the Series E Fixed Rate NonCumulative Perpetual Preferred Stock of the Company (the “Series E Preferred Stock”); 

WHEREAS, the Exchange will be governed by this Securities Exchange Agreement 

(including the Schedules and Annexes hereto) (the “Agreement”); and 

WHEREAS, the Investor has tendered consent to the issuance of the Series E Preferred 

Stock. 

NOW, THEREFORE, in consideration of the premises, and of the representations, 

warranties, covenants and agreements set forth herein, the parties agree as follows: 

Article 1

Exchange; Closing 

1.1 Exchange. On the terms and subject to the conditions set forth in this Agreement, 

the Investor agrees to deliver to the Company the share certificate representing 4,000,000 shares 

of Series D Preferred Stock (the “Series D Preferred Stock Certificate”) with an aggregate 

liquidation preference of $40,000,000,000 and the Company agrees to deliver to the Investor a 

share certificate representing 400,000 shares of the Series E Preferred Stock with an aggregate 

liquidation preference of $41,604,576,000 in exchange for the Series D Preferred Stock 

Certificate, at the Closing (as hereinafter defined). 

1.2 Closing. 

(a) On the terms and subject to the conditions set forth in this Agreement, the closing 

of the Exchange (the “Closing”) will take place at the location specified in Schedule A, at the 

time and on the date set forth in Schedule A, or as soon as practicable thereafter, or at such other 

place, time and date as shall be agreed between the Company and the Investor. The time and 

date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. 

(b) Subject to the fulfillment or waiver of the conditions to the Closing in this 

Section 1.2, at the Closing (i) the Company will deliver the Series E Preferred Stock to the 

Investor, as evidenced by one or more certificates dated the Closing Date and bearing 
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appropriate legends as hereinafter provided for and (ii) the Investor will deliver the Series D 

Preferred Stock Certificate to the Company. 

(c) The respective obligations of each of the Investor and the Company to consummate 

the Exchange are subject to the fulfillment (or waiver by the Investor and the Company, as 

applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all 

United States and other governmental, regulatory or judicial authorities (collectively, 

“Governmental Entities”) required for the consummation of the Exchange shall have been 

obtained or made in form and substance reasonably satisfactory to each party and shall be in full 

force and effect and all waiting periods required by United States and other applicable law, if any, 

shall have expired and (ii) no provision of any applicable United States or other law and no 

judgment, injunction, order or decree of any Governmental Entity shall prohibit the Exchange. 

(d) The obligation of the Investor to consummate the Exchange is also subject to the 

fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following 

conditions: 

(i) (A) the representations and warranties of the Company set forth in 

Sections 2.2(a) through (e) shall be true and correct in all material respects as though 

made on and as of the Closing Date (other than representations and warranties that by 

their terms speak as of another date, which representations and warranties shall be true 

and correct in all material respects as of such other date) and (B) the Company shall have 

performed in all material respects all obligations required to be performed by it under this 

Agreement at or prior to the Closing; 

(ii) the Investor shall have received a certificate signed on behalf of the 

Company by a senior executive officer certifying to the effect that the conditions set forth 

in Section 1.2(d)(i) have been satisfied; 

(iii) the Company shall have duly adopted, prior to the consummation of the 

Exchange, and filed with the Secretary of State of Delaware, immediately after the 

consummation of the Exchange, the certificate of elimination for the Series D Preferred 

Stock (the “Certificate of Elimination”) and such filing shall have been accepted; 

(iv) the Company shall have duly adopted, prior to the consummation of the 

Exchange, and filed with the Secretary of State of Delaware, prior to the consummation 

of the Exchange, the certificate of designations for the Series E Preferred Stock in 

substantially the form attached hereto as Annex A (the “Certificate of Designations”) 

and such filing shall have been accepted; 

(v) (A) the Company shall have taken all necessary action to effect such 

changes to its existing compensation, bonus, incentive and other benefit plans, 

arrangements and agreements (including golden parachute, severance and employment 

agreements) (collectively, “Plans”, and together with all such plans, arrangements and 

agreements hereafter adopted, created or entered into, “Benefit Plans”) with respect to 
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the Senior Executive Officers (and to the extent necessary for such changes to be legally 

enforceable, each of the Senior Executive Officers shall have duly consented in writing to 

such changes), as may be necessary, during the Relevant Period, in order to comply with 

Section 111 of the Emergency Economic Stabilization Act of 2008, as amended (the 

“EESA”), including the provisions for Systemically Significant Failing Institutions, as 

implemented by guidance or regulation issued thereunder, including Notice 2008-PSSFI, 

that has been issued and is in effect as of the Closing Date, including provisions 

prohibiting severance payments to the Senior Executive Officers, (B) the Company shall 

have taken all necessary action to effect such changes to its Plans with respect to the 

U.S.-based Senior Partners (and to the extent necessary for such changes to be legally 

enforceable, each of the U.S.-based Senior Partners shall have duly consented in writing 

to such changes), as may be necessary, during the Relevant Period, in order to comply 

with the requirements in Section 4.9 of this Agreement (as the requirements referred to in 

such Section are in effect as of the Closing Date), (C) the Company shall have used its 

best efforts to take all necessary action to effect such changes to its Plans with respect to 

the other Senior Partners (and to the extent necessary for such changes to be legally 

enforceable, to have each of the other Senior Partners duly consent in writing to such 

changes), as may be necessary, during the Relevant Period, in order to comply with the 

requirements in Section 4.9 of this Agreement (as the requirements referred to in such 

Section are in effect as of the Closing Date) and (D) the Investor shall have received a 

certificate signed on behalf of the Company by a senior executive officer certifying to the 

effect that the conditions set forth in Section 1.2(d)(v)(A) and (B) have been satisfied; 

“Relevant Period” means the period in which any obligation of the Company arising 

from financial assistance provided under the Troubled Asset Relief Program remains 

outstanding (excluding any period during which the Federal government only holds 

warrants to purchase Common Stock); 

(vi) the Company shall have delivered to the Investor a written opinion from 

counsel to the Company (which may be internal counsel), addressed to the Investor and 

dated as of the Closing Date, in substantially the form attached hereto as Annex B; and 

(vii) the Company shall have delivered certificates in proper form or, with the 

prior consent of the Investor, evidence of shares in book-entry form, evidencing the 

Series E Preferred Stock to the Investor or its designee(s). 

(e) The obligation of the Company to consummate the Exchange is also subject to the 

condition that the Investor shall have delivered the Series D Preferred Stock Certificate to the 

Company. 

1.3 Interpretation. When a reference is made in this Agreement to “Recitals,” 

“Articles,” “Sections,” “Annexes” or “Schedules” such reference shall be to a Recital, Article or 

Section of, or Annex or Schedule to, this Agreement. The terms defined in the singular have a 

comparable meaning when used in the plural, and vice versa. References to “herein”, “hereof”, 

“hereunder” and the like refer to this Agreement as a whole and not to any particular section or 

provision, unless the context requires otherwise. The table of contents and headings contained in 
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this Agreement are for reference purposes only and are not part of this Agreement. Whenever 

the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed 

followed by the words “without limitation.” No rule of construction against the draftsperson 

shall be applied in connection with the interpretation or enforcement of this Agreement, as this 

Agreement is the product of negotiation between sophisticated parties advised by counsel. All 

references to “$” or “dollars” mean the lawful currency of the United States of America. Except 

as expressly stated in this Agreement, all references to any statute, rule or regulation are to the 

statute, rule or regulation as amended, modified, supplemented or replaced from time to time 

(and, in the case of statutes, include any rules and regulations promulgated under the statute) and 

to any section of any statute, rule or regulation include any successor to the section. References 

to a “business day” shall mean any day except Saturday, Sunday and any day on which banking 

institutions in the State of New York generally are authorized or required by law or other 

governmental actions to close. 

Article 2

Representations and Warranties 

2.1 Disclosure. “Company Material Adverse Effect” means a material adverse 

effect on (i) the business, results of operation or financial condition of the Company and its 

consolidated subsidiaries taken as a whole; provided, however, that Company Material Adverse 

Effect shall not be deemed to include the effects of (A) changes after the date of this Agreement 

(the “Signing Date”) in general business, economic or market conditions (including changes 

generally in prevailing interest rates, credit availability and liquidity, currency exchange rates 

and price levels or trading volumes in the United States or foreign securities or credit markets), 

or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in 

each case generally affecting the industries in which the Company and its subsidiaries operate, 

(B) changes or proposed changes after the Signing Date in generally accepted accounting 

principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative 

interpretations thereof, (C) changes or proposed changes after the Signing Date in securities, 

insurance and other laws of general applicability or related policies or interpretations of 

Governmental Entities (in the case of each of these clauses (A), (B) and (C), other than changes 

or occurrences to the extent that such changes or occurrences have or would reasonably be 

expected to have a materially disproportionate adverse effect on the Company and its 

consolidated subsidiaries taken as a whole relative to comparable U.S. insurance or financial 

services organizations), or (D) changes in the market price or trading volume of the Company’s 

common stock, par value $2.50 per share (“Common Stock”), or any other equity, equity-related 

or debt securities of the Company or its consolidated subsidiaries (it being understood and agreed 

that the exception set forth in this clause (D) does not apply to the underlying reason giving rise 

to or contributing to any such change); or (ii) the ability of the Company to consummate the 

Exchange and the other transactions contemplated by this Agreement and perform its obligations 

hereunder on a timely basis. 
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2.2 Representations and Warranties of the Company. The Company represents and 

warrants to the Investor that as of the Signing Date and as of the Closing Date (or such other date 

specified herein): 

(a) Organization, Authority and Significant Subsidiaries. The Company has been duly 

incorporated and is validly existing and in good standing under the laws of the State of Delaware, 

with the necessary power and authority to own its properties and conduct its business in all 

material respects as currently conducted; except as has not had, individually or in the aggregate, 

and would not reasonably be expected to have a Company Material Adverse Effect, the 

Company has been duly qualified as a foreign corporation for the transaction of business and is 

in good standing under the laws of each other jurisdiction in which it owns or leases properties or 

conducts any business so as to require such qualification; each subsidiary of the Company that is 

a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X under the 

Securities Act of 1933 (the “Securities Act”) has been duly organized and is validly existing in 

good standing under the laws of its jurisdiction of organization. The Restated Certificate of 

Incorporation of the Company, as amended (the “Charter”) and bylaws of the Company, copies 

of which have been provided to the Investor prior to the Signing Date, are true, complete and 

correct copies of such documents as in full force and effect as of the Signing Date. 

(b) Capitalization. The authorized capital stock of the Company, and the outstanding 

capital stock of the Company (including securities convertible into, or exercisable or 

exchangeable for, capital stock of the Company) as of the most recent fiscal month-end 

preceding the Signing Date, or such other date as the parties may agree (the “Capitalization 

Date”), is set forth on Schedule B. The outstanding shares of capital stock of the Company have 

been duly authorized and are validly issued and outstanding, fully paid and non-assessable, and 

subject to no preemptive rights (and were not issued in violation of any preemptive rights). As 

of the Signing Date, the Company does not have outstanding any securities or other obligations 

providing the holder the right to acquire Common Stock that is not reserved for issuance, and the 

Company has not made any other commitment to authorize, issue or sell any Common Stock, 

except as specified on Schedule B and including the Series C Perpetual, Convertible, 

Participating Preferred Stock, par value $5.00 per share (the “Series C Preferred Stock”). 

Since the Capitalization Date, the Company has not issued any shares of Common Stock, other 

than (i) shares issued upon the exercise of stock options or delivered under other equity-based 

awards or other convertible securities or warrants which were issued and outstanding on the 

Capitalization Date and disclosed on Schedule B and (ii) shares disclosed on Schedule B. 

(c) Series E Preferred Stock. The Series E Preferred Stock has been duly and validly 

authorized, and, when issued and delivered pursuant to this Agreement, such Series E Preferred 

Stock will be duly and validly issued and fully paid and non-assessable, will not be issued in 

violation of any preemptive rights, and, until the approval by the Company’s stockholders of the 

amendment to the Charter to cause the Series D Preferred Stock and any other series of Serial 

Preferred Stock (as defined in the Charter) issued to the Investor to rank senior to the Series C 

Preferred Stock and any subsequently issued series of Serial Preferred Stock (as defined in the 

Charter) that is not initially issued to the Investor, will rank pari passu with all other series or 

classes of the Company’s preferred stock, whether or not issued or outstanding, with respect to 
6 

the payment of dividends and the distribution of assets in the event of any dissolution, liquidation 

or winding up of the Company. 

(d) Authorization, Enforceability. 

(i) The Company has the corporate power and authority to execute and 

deliver this Agreement and, subject to the approval of its stockholders described in 

Section 3.1(b) and the corporate authorizations necessary to effect the transactions 

contemplated by Sections 3.7 and 3.8, to carry out its obligations hereunder (which 

includes the issuance of the Series E Preferred Stock). The execution, delivery and 

performance by the Company of this Agreement and the consummation of the 

transactions contemplated hereby have been duly authorized by all necessary corporate 

action on the part of the Company and its stockholders, and no further approval or 

authorization is required on the part of the Company or its stockholders, except as 

described in Section 3.1(b) and the corporate authorizations necessary to effect the 

transactions contemplated by Sections 3.7 and 3.8. This Agreement is a valid and 

binding obligation of the Company enforceable against the Company in accordance with 

its terms, except as the same may be limited by applicable bankruptcy, insolvency, 

reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights 

generally and general equitable principles, regardless of whether such enforceability is 

considered in a proceeding at law or in equity. 

(ii) The execution, delivery and performance by the Company of this 

Agreement and the consummation of the transactions contemplated hereby and 

compliance by the Company with the provisions hereof, will not (A) violate, conflict with, 

or result in a breach of any provision of, or constitute a default (or an event which, with 

notice or lapse of time or both, would constitute a default) under, or result in the 

termination of, or accelerate the performance required by, or result in a right of 

termination or acceleration of, or result in the creation of, any lien, security interest, 

charge or encumbrance upon any of the properties or assets of the Company or any 

subsidiary of the Company (each a “Company Subsidiary” and, collectively, the 

“Company Subsidiaries”) under any of the terms, conditions or provisions of (i) subject 

to the approval of the Company’s stockholders as described in Section 3.1(b) and the 

corporate authorizations necessary to effect the transactions contemplated by Sections 3.7 

and 3.8, its organizational documents or (ii) any note, bond, mortgage, indenture, deed of 

trust, license, lease, agreement or other instrument or obligation to which the Company or 

any Company Subsidiary is a party or by which it or any Company Subsidiary may be 

bound, or to which the Company or any Company Subsidiary or any of the properties or 

assets of the Company or any Company Subsidiary may be subject, or (B) subject to 

compliance with the statutes and regulations referred to in the next paragraph, violate any 

statute, rule or regulation or any judgment, ruling, order, writ, injunction or decree 

applicable to the Company or any Company Subsidiary or any of their respective 

properties or assets except, in the case of clauses (A)(ii) and (B), for those occurrences 

that, individually or in the aggregate, have not had and would not reasonably be expected 

to have a Company Material Adverse Effect. 
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(iii) Other than the filing of the Certificate of Designations with the Secretary 

of State of Delaware, the Certificate of Elimination with the Secretary of State of 

Delaware, any current report on Form 8-K required to be filed with the Securities and 

Exchange Commission (the “SEC”), such filings and approvals as are required to be 

made or obtained under any state “blue sky” laws, the filing of any proxy statement 

contemplated by Section 3.1(b), any filings or approvals required in connection with the 

transactions contemplated by Sections 3.7 and 3.8 and such as have been made or 

obtained, no notice to, filing with, exemption or review by, or authorization, consent or 

approval of, any Governmental Entity is required to be made or obtained by the Company 

in connection with the consummation by the Company of the Exchange except for any 

such notices, filings, exemptions, reviews, authorizations, consents and approvals the 

failure of which to make or obtain would not, individually or in the aggregate, reasonably 

be expected to have a Company Material Adverse Effect. 

(e) Anti-takeover Provisions and Rights Plan. The Board of Directors of the Company 

(the “Board of Directors”) has taken all necessary action to ensure that the transactions 

contemplated by this Agreement and the consummation of the transactions contemplated hereby 

will be exempt from any anti-takeover or similar provisions of the Company’s Charter and 

bylaws, and any other provisions of any applicable “moratorium”, “control share”, “fair price”, 

“interested stockholder” or other anti-takeover laws and regulations of any jurisdiction. The 

Company has taken all actions necessary to render any stockholders’ rights plan of the Company 

inapplicable to this Agreement and the consummation of the transactions contemplated hereby. 

(f) Offering of Securities. Neither the Company nor any person acting on its behalf 

has taken any action (including any offering of any securities of the Company under 

circumstances which would require the integration of such offering with the offering of any of 

the Series E Preferred Stock under the Securities Act, and the rules and regulations of the SEC 

promulgated thereunder), which might subject the offering or issuance of any of the Series E 

Preferred Stock to the Investor pursuant to this Agreement to the registration requirements of the 

Securities Act. 

(g) Brokers and Finders. No broker, finder or investment banker is entitled to any 

financial advisory, brokerage, finder’s or other fee or commission in connection with this 

Agreement or the transactions contemplated hereby based upon arrangements made by or on 

behalf of the Company or any Company Subsidiary for which the Investor could have any 

liability. 

(h) No Inconsistent Agreement. Prior to the Signing Date, the Company has not 

entered into an agreement with respect to its securities that is inconsistent with the order of 

priority set forth in Section 4.5(a)(vi) for the offering of securities under a Shelf Registration 

Statement pursuant to Section 4.5(a)(ii) or a Piggyback Registration under Section 4.5(a)(iv). 

2.3 Representations and Warranties of the Investor. The Investor represents and 

warrants to the Company that as of the Signing Date and as of the Closing Date: 
8 

(a) Ownership of Series D Preferred Stock. The Investor has good and unencumbered 

title to 4,000,000 shares of Series D Preferred Stock, free and clear of all pledges, security 

interests, liens, claims, encumbrances, rights of first refusal, and options of any kind whatsoever 

(other than any applicable federal and state securities law restrictions). 

(b) No Encumbrances. The Investor has full right, power and authority to consummate 

the Exchange and upon completion of the Exchange the Company shall receive the 4,000,000 

shares of Series D Preferred Stock, free and clear of all pledges, security interests, liens, claims, 

encumbrances, rights of first refusal, and options of any kind whatsoever (other than any 

applicable federal and state securities law restrictions). 

Article 3

Covenants 

3.1 Consummation of Exchange and Charter Amendment. (a) Subject to the terms 

and conditions of this Agreement, each of the parties will use its commercially reasonable efforts 

in good faith to take, or cause to be taken, all actions, and to do, or cause to be done, all things 

necessary, proper or desirable, or advisable under applicable laws, so as to permit consummation 

of the Exchange as promptly as practicable and otherwise to enable consummation of the 

transactions contemplated hereby and shall use commercially reasonable efforts to cooperate 

with the other party to that end. 

(b) At and prior to the next annual meeting of the Company’s stockholders following 

the Closing Date, the Company shall take all action necessary under all applicable laws and 

regulations and the Charter to vote at such meeting on a proposal (the “Stockholder Proposal”) 

to amend the Charter to (i) permit the Board of Directors to issue classes of Serial Preferred 

Stock (as defined in the Charter) that are not of equal rank, such that the Board of Directors or a 

duly authorized committee thereof may, prior to issuance, in the resolution or resolutions 

providing for the issue of shares of each particular series, provide whether the shares of such 

series rank senior or junior to any other class of Serial Preferred Stock as to the right to receive 

dividends and the right to receive payments out of the assets of the Company upon voluntary or 

involuntary liquidation, dissolution or winding up of the Company and (ii) cause the Series E 

Preferred Stock and any other series of Serial Preferred Stock subsequently issued to the Investor 

to rank senior to the Series C Preferred Stock and any other subsequently issued series of Serial 

Preferred Stock that is not issued to the Investor, so that as a result of these amendments the 

Series C Preferred Stock and any subsequently issued series of Serial Preferred Stock that ranks 

pari passu with or junior to the Series C Preferred Stock would not be entitled to vote on the 

subsequent creation or issuance of any such senior Serial Preferred Stock. In connection with 

such meeting, the Company shall prepare (and the Investor will reasonably cooperate with the 

Company to prepare) and file with the SEC a preliminary proxy statement, shall use its 

reasonable best efforts to respond to any comments of the SEC or its staff thereon and to cause a 

definitive proxy statement related to such stockholders’ meeting to be mailed to the Company’s 

stockholders not more than five business days after clearance thereof by the SEC. The Company 

shall notify the Investor promptly of the receipt of any comments from the SEC or its staff with 
9 

respect to the proxy statement and of any request by the SEC or its staff for amendments or 

supplements to such proxy statement or for additional information and will supply the Investor 

with copies of all correspondence between the Company or any of its representatives, on the one 

hand, and the SEC or its staff, on the other hand, with respect to such proxy statement. If at any 

time prior to such stockholders’ meeting there shall occur any event that is required to be set 

forth in an amendment or supplement to the proxy statement, the Company shall as promptly as 

practicable prepare and mail to its stockholders such an amendment or supplement. Each of the 

Investor and the Company agrees promptly to correct any information provided by it or on its 

behalf for use in the proxy statement if and to the extent that such information shall have become 

false or misleading in any material respect, and the Company shall as promptly as practicable 

prepare and mail to its stockholders an amendment or supplement to correct such information to 

the extent required by applicable laws and regulations. The Company shall consult with the 

Investor prior to filing any proxy statement, or any amendment or supplement thereto, and 

provide the Investor with a reasonable opportunity to comment thereon. In the event that the 

approval of the Stockholder Proposal is not obtained at such annual stockholders meeting, the 

Company shall include a proposal to approve such proposal at a meeting of its stockholders no 

less than once in each subsequent twelve-month period beginning on June 1, 2009 until such 

approval is obtained or made. 

(c) None of the information supplied by the Company or any of the Company 

Subsidiaries for inclusion in any proxy statement in connection with any such stockholders 

meeting of the Company will, at the date it is filed with the SEC, when first mailed to the 

Company’s stockholders and at the time of any stockholders meeting, and at the time of any 

amendment or supplement thereof, contain any untrue statement of a material fact or omit to 

state any material fact necessary in order to make the statements therein, in light of the 

circumstances under which they are made, not misleading. 

3.2 Expenses. Unless otherwise provided in this Agreement, each of the parties hereto 

will bear and pay all costs and expenses incurred by it or on its behalf in connection with the 

transactions contemplated under this Agreement, including fees and expenses of its own 

financial or other consultants, investment bankers, accountants and counsel. 

3.3 Exchange Listing. If requested by the Investor, the Company shall promptly use 

its reasonable best efforts to cause the Series E Preferred Stock to be approved for listing on a 

national securities exchange as promptly as practicable following such request. 

3.4 Certain Notifications Until Closing. From the Signing Date until the Closing, the 

Company shall promptly notify the Investor of (i) any fact, event or circumstance of which it is 

aware and which would reasonably be expected to cause any representation or warranty of the 

Company contained in this Agreement to be untrue or inaccurate in any material respect or to 

cause any covenant or agreement of the Company contained in this Agreement not to be 

complied with or satisfied in any material respect and (ii) except as set forth or incorporated by 

reference in the Company’s Annual Report on Form 10-K for the most recently completed fiscal 

year of the Company filed with the SEC or in the Company’s other publicly available reports and 

forms filed with or furnished to the SEC under Sections 13(a), 14(a) or 15(d) of the Securities 
10 

Exchange Act of 1934, as amended from time to time (the “Exchange Act”), on or after 

December 31, 2008 and prior to the Signing Date, any fact, circumstance, event, change, 

occurrence, condition or development of which the Company is aware and which, individually or 

in the aggregate, has had or would reasonably be expected to have a Company Material Adverse 

Effect; provided, however, that delivery of any notice pursuant to this Section 3.4 shall not limit 

or affect any rights of or remedies available to the Investor; provided, further, that a failure to 

comply with this Section 3.4 shall not constitute a breach of this Agreement or the failure of any 

condition set forth in Section 1.2 to be satisfied unless the underlying Company Material 

Adverse Effect or material breach would independently result in the failure of a condition set 

forth in Section 1.2 to be satisfied. 

3.5 Information and Confidentiality. 

(a) Until such time as the Investor ceases to own any Series E Preferred Stock, or 

except as otherwise agreed, the Company shall provide the Investor (i) the information required 

to be provided by the Company to the Federal Reserve Bank of New York (“FRBNY”) pursuant 

to Section 5.04 of the Credit Agreement dated as of September 22, 2008 between the Company 

and the FRBNY, as amended from time to time (the “Credit Agreement”) and within the time 

periods for delivery thereof specified in the Credit Agreement and (ii) the notices required by 

Section 5.05 of the Credit Agreement and within the time periods for delivery thereof specified 

in the Credit Agreement. After the termination of the Credit Agreement, such informational and 

notice requirements as are provided in Section 5.04 and Section 5.05 of the Credit Agreement 

shall remain in full force and effect until such time as the Investor no longer owns any Series E 

Preferred Stock. In addition, during the Relevant Period, except as otherwise agreed, the 

Company shall provide the Investor a bi-annual report on the steps taken by the Company to 

comply in all respects with Section 111 of the EESA, including the provisions for Systemically 

Significant Failing Institutions, as implemented by any guidance or regulation issued thereunder 

as of the date of such report, including Notice 2008-PSSFI, any amendments to Notice 2008-

PSSFI, or any other guidance or regulation applicable to the Company, and with Section 4.9 of 

this Agreement. In addition, the Company shall promptly provide the Investor such other 

information and notices as the Investor may reasonably request from time to time. 

(b) The Investor will use reasonable best efforts to hold, and will use reasonable best 

efforts to cause its agents, consultants, contractors and advisors to hold, in confidence all nonpublic records, books, contracts, instruments, computer data and other data and information 

(collectively, “Information”) concerning the Company furnished or made available to it by the 

Company or its representatives pursuant to this Agreement (including pursuant to Sections 3.5 

and 3.6) (except to the extent that such information can be shown to have been (i) previously 

known by such party on a non-confidential basis, (ii) in the public domain through no fault of 

such party or (iii) later lawfully acquired from other sources by the party to which it was 

furnished (and without violation of any other confidentiality obligation)); provided that nothing 

herein shall prevent the Investor from disclosing any Information to the extent required by 

applicable laws or regulations or by any subpoena or similar legal process. 
11 

3.6 Additional Inspection Rights. During the Relevant Period, the Company shall 

permit (i) the Investor and its agents, consultants, contractors and advisors, (ii) the Special 

Inspector General of the Troubled Asset Relief Program, and (iii) the Comptroller General of the 

United States access to personnel and any books, papers, records or other data delivered to it 

pursuant to this Agreement or otherwise in its possession, custody or control, in each case to the 

extent relevant to ascertaining compliance with the terms and conditions set forth in this 

Agreement, during normal business hours and upon reasonable notice to the Company; provided

that prior to disclosing any information pursuant to clause (i), (ii) or (iii), the Investor, the 

Special Inspector General of the Troubled Asset Relief Program and the Comptroller General of 

the United States shall have agreed, with respect to documents obtained under this Agreement in 

furtherance of their respective functions, to follow applicable laws and regulations (and the 

applicable customary policies and procedures, including those for inspectors general) regarding 

the dissemination of confidential materials, including redacting confidential information from the 

public version of its reports, as appropriate, and soliciting input from the Company as to 

information that should be afforded confidentiality. The Investor represents that it has been 

informed by the Special Inspector General of the Troubled Asset Relief Program and the 

Comptroller General of the United States that they, before making any request for access or 

information pursuant to their oversight and audit functions, will establish a protocol to avoid, to 

the extent reasonably possible, duplicative requests. Nothing in this Section 3.6 shall be 

construed to limit the authority that the Special Inspector General of the Troubled Asset Relief 

Program or the Comptroller General of the United States have under law. 

3.7 Exchange of Warrant. (a) If, at the meeting of the Company’s shareholders 

referred to in Section 6.2(a) of the Series C Perpetual, Convertible, Participating Preferred Stock 

Purchase Agreement, dated as of March 1, 2009 (the “Series C Preferred Stock Purchase 

Agreement”), between the Company and the AIG Credit Facility Trust, a trust established for 

the sole benefit of the United States Treasury (the “Trust”), the Common Stock Amendment 

Proposal (as defined in the Series C Preferred Stock Purchase Agreement) is not approved by the 

holders of Company’s capital stock but the Series C Preferred Stock Amendment Proposal and 

the Serial Preferred Stock Amendment Proposal (each as defined in the Series C Preferred Stock 

Purchase Agreement) are so approved, the Investor shall have the right, at any time and in its 

sole discretion, by giving a notice in accordance with Section 5.6 to exchange the warrant issued 

to the Investor on November 25, 2008 (the “Warrant”) for 53,798,766 shares of the Company’s 

Series C Preferred Stock (after giving effect to the Series C Preferred Stock Amendment 

Proposal and the Serial Preferred Stock Amendment Proposal referred to above and subject to 

adjustment for any stock splits and reverse stock splits effected between the Closing Date and the 

date on which such exchange is effected) (the “Warrant Exchange” and the shares of Series C 

Preferred Stock received in such exchange, the “Exchange Shares”). In order to effect the 

Warrant Exchange, the Company shall comply with the relevant provisions of Sections 6.1 and 

6.2 of the Series C Preferred Stock Purchase Agreement as if such sections were set forth in full 

in this Agreement, except that the Series C Preferred Stock Amendment Proposal (as defined in 

the Series C Preferred Stock Purchase Agreement) shall be deemed to include an amendment to 

the Certificate of Designations for the Company’s Series C Preferred Stock to authorize the 

issuance of the Exchange Shares. 
12 

(b) The Company acknowledges that the Investor has provided consideration for the 

Warrant Exchange in the form of its agreement to consummate the Exchange and that the value 

of such agreement is at least equal to the par value of the Exchange Shares.

3.8 Exchange of Series E Preferred Stock. As soon as practicable following the filing 

of the Certificate of Elimination with the Secretary of State of Delaware, the Company shall 

reserve for issuance 4,160,458 authorized and unissued shares of Serial Preferred Stock and at 

any time prior to the date the Investor ceases to own any shares of Series E Preferred Stock, the 

Investor shall have the right, in its sole discretion, by giving a notice in accordance with Section 

5.6 to cause the Company to take all action necessary under all applicable laws and regulations 

and the Charter to exchange any of the shares of Series E Preferred Stock owned by the Investor 

for a new series of Serial Preferred Stock with the same terms as the Series E Preferred Stock 

(except that the liquidation preference of such new series shall be $10,000 per share, or such 

liquidation preference per share as shall be reasonably specified by the Investor and the 

aggregate liquidation preference following such exchange shall be equal to the aggregate 

liquidation preference of the Series E Preferred Stock prior to such exchange), in accordance 

with an exchange agreement substantially in the form of this Agreement.

3.9 Compliance with the Employ American Workers Act. The Company shall, and the 

Company shall take all necessary action to ensure that the Company Subsidiaries, as applicable, 

shall, comply in all respects with the provisions of the Employ American Workers Act (Section 

1611 of Division A, Title XVI of the American Recovery and Reinvestment Act of 2009 (P.L. 

111-5)), as in effect from time to time. 

3.10 Compliance with Guidelines of the Home Affordable Modification Program. The 

Company shall take all necessary action to ensure that all Company Subsidiaries that are eligible 

for the Home Affordable Modification Program shall execute a Commitment to Purchase 

Financial Instrument and Servicer Participation Agreement with the Federal National Mortgage 

Association within 90 days of the Commencement Date and otherwise comply with (i) the Home 

Affordable Modification Program Guidelines issued by the Investor on March 4, 2009, (ii) 

Supplemental Directive 09-01 issued by the Investor dated April 6, 2009 and (iii) any other 

guidelines or regulations to be issued by the Investor as part of the Home Affordable 

Modification Program. 

3.11 Internal Controls. The Company shall (i) promptly establish appropriate internal 

controls with respect to compliance with each of the Company’s covenants and agreements set 

forth in Sections 4.7 through 4.12; (ii) prepare a report on a quarterly basis regarding the 

implementation of such internal controls and the Company’s compliance (including any 

instances of non-compliance) with such covenants and agreements; (iii) deliver such quarterly 

report to the Investor in accordance with Section 5.6 and no later than the date by which its 

Quarterly Report on Form 10-Q or Annual Report on Form 10-K is filed with the SEC; and (iv) 

provide a signed certification from a senior executive officer of the Company to the Investor that 

such quarterly report is accurate to the best of his or her knowledge, which certification shall be 

made subject to the requirements and penalties set forth in Title 18, United States Code, Section 

1001. 
13 

Article 4

Additional Agreements 

4.1 Purchase of Restricted Securities. The Investor acknowledges that the Series E 

Preferred Stock and the Exchange Shares have not been registered under the Securities Act or 

under any state securities laws. The Investor (a) is acquiring the Series E Preferred Stock and, if 

delivered, the Exchange Shares pursuant to an exemption from registration under the Securities 

Act with no present intention to distribute them to any person in violation of the Securities Act or 

any applicable U.S. state securities laws, (b) will not sell or otherwise dispose of any of the 

Series E Preferred Stock and, if delivered, the Exchange Shares, except in compliance with the 

registration requirements or exemption provisions of the Securities Act and any applicable U.S. 

state securities laws, and (c) has such knowledge and experience in financial and business 

matters and in investments of this type that it is capable of evaluating the merits and risks of the 

Exchange and of making an informed investment decision. 

4.2 Legends. 

(a) The Investor agrees that all certificates or other instruments representing the 

Exchange Shares will bear a legend substantially to the following effect: 

“THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON 

CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER 

THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR 

ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY OR THE SHARES 

OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY NOR 

ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE 

REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR 

OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR 

UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, 

REGISTRATION.”

(b) The Investor agrees that all certificates or other instruments representing the 

Series E Preferred Stock will bear a legend substantially to the following effect: 

“THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN 

REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE 

“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY 

NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE 

A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER 

THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR 

PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 

SECURITIES ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES 

REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE SELLER MAY 

BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE SECURITIES 

ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE 
14 

SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE 

HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” 

(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT 

IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THE SECURITIES 

REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A 

REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE 

SECURITIES ACT, (B) FOR SO LONG AS THE SECURITIES REPRESENTED BY 

THIS INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, 

TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL 

BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT 

PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A 

QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE 

TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE ISSUER 

OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE 

REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES 

THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES 

REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE 

SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.” 

(c) In the event that any shares of the Series E Preferred Stock or the Exchange Shares 

(i) become registered under the Securities Act or (ii) are eligible to be transferred without 

restriction in accordance with Rule 144 or another exemption from registration under the 

Securities Act (other than Rule 144A), the Company shall issue new certificates or other 

instruments representing such Series E Preferred Stock or the Exchange Shares, which shall not 

contain the applicable legends in Section 4.2(a) and (b) above; provided that the Investor 

surrenders to the Company the previously issued certificates or other instruments. 

4.3 Certain Transactions. The Company will not merge or consolidate with, or sell, 

transfer or lease all or substantially all of its property or assets to, any other party unless (i) the 

successor, transferee or lessee party (or its ultimate parent entity), as the case may be (if not the 

Company), expressly assumes the due and punctual performance and observance of each and 

every covenant, agreement and condition of this Agreement to be performed and observed by the 

Company or (ii) the Investor agrees otherwise in writing. 

4.4 Transfer of Series E Preferred Stock and Exchange Shares. Subject to 

compliance with applicable securities laws, the Investor shall be permitted to transfer, sell, assign 

or otherwise dispose of (“Transfer”) all or a portion of the Series E Preferred Stock or the 

Exchange Shares at any time, and the Company shall take all steps as may be reasonably 

requested by the Investor to facilitate the Transfer of the Series E Preferred Stock or the 

Exchange Shares. 

4.5 Registration Rights. 

(a) Registration. 
15 

(i) Subject to the terms and conditions of this Agreement, the Company 

covenants and agrees that as promptly as practicable after notification from the Investor, 

and in any event no later than 15 days after such notification, the Company shall prepare 

and file with the SEC a Shelf Registration Statement covering all Registrable Securities 

(or otherwise designate an existing Shelf Registration Statement filed with the SEC to 

cover the Registrable Securities), and, to the extent the Shelf Registration Statement has 

not theretofore been declared effective or is not automatically effective upon such filing, 

the Company shall use reasonable best efforts to cause such Shelf Registration Statement 

to be declared or become effective and to keep such Shelf Registration Statement 

continuously effective and in compliance with the Securities Act and usable for resale of 

such Registrable Securities for a period from the date of its initial effectiveness until such 

time as there are no Registrable Securities remaining (including by refiling such Shelf 

Registration Statement (or a new Shelf Registration Statement) if the initial Shelf 

Registration Statement expires). So long as the Company is a well-known seasoned 

issuer (as defined in Rule 405 under the Securities Act) at the time of filing of the Shelf 

Registration Statement with the SEC, such Shelf Registration Statement shall be 

designated by the Company as an automatic Shelf Registration Statement. 

(ii) Any registration pursuant to Section 4.5(a)(i) shall be effected by means of 

a shelf registration on an appropriate form under Rule 415 under the Securities Act (a 

“Shelf Registration Statement”). If the Investor or any other Holder intends to 

distribute any Registrable Securities by means of an underwritten offering it shall 

promptly so advise the Company and the Company shall take all reasonable steps to 

facilitate such distribution, including the actions required pursuant to Section 4.5(c); 

provided that the Company shall not be required to facilitate an underwritten offering of 

Registrable Securities unless the expected gross proceeds from such offering exceed 

$200 million. The lead underwriters in any such distribution shall be selected by the 

Holders of a majority of the Registrable Securities to be distributed. 

(iii) The Company shall not be required to effect a registration (including a 

resale of Registrable Securities from an effective Shelf Registration Statement) or an 

underwritten offering pursuant to Section 4.5(a): (A) with respect to securities that are 

not Registrable Securities; or (B) if the Company has notified the Investor and all other 

Holders that in the good faith judgment of the Board of Directors, it would be materially 

detrimental to the Company or its securityholders for such registration or underwritten 

offering to be effected at such time, in which event the Company shall have the right to 

defer such registration for a period of not more than 45 days after receipt of the request of 

the Investor or any other Holder; provided that such right to delay a registration or 

underwritten offering shall be exercised by the Company (1) only if the Company has 

generally exercised (or is concurrently exercising) similar black-out rights against holders 

of similar securities that have registration rights and (2) not more than three times in any 

12-month period and not more than 90 days in the aggregate in any 12-month period. 

(iv) If during any period when an effective Shelf Registration Statement is not 

available, the Company proposes to register any of its equity securities, other than a 
16 

registration pursuant to Section 4.5(a)(i) or a Special Registration, and the registration 

form to be filed may be used for the registration or qualification for distribution of 

Registrable Securities, the Company will give prompt written notice to the Investor and 

all other Holders of its intention to effect such a registration (but in no event less than ten 

days prior to the anticipated filing date) and will include in such registration all 

Registrable Securities with respect to which the Company has received written requests 

for inclusion therein within ten business days after the date of the Company’s notice (a 

“Piggyback Registration”). Any such person that has made such a written request may 

withdraw its Registrable Securities from such Piggyback Registration by giving written 

notice to the Company and the managing underwriter, if any, on or before the fifth 

business day prior to the planned effective date of such Piggyback Registration. The 

Company may terminate or withdraw any registration under this Section 4.5(a)(iv) prior 

to the effectiveness of such registration, whether or not the Investor or any other Holders 

have elected to include Registrable Securities in such registration. 

(v) If the registration referred to in Section 4.5(a)(iv) is proposed to be 

underwritten, the Company will so advise the Investor and all other Holders as a part of 

the written notice given pursuant to Section 4.5(a)(iv). In such event, the right of the 

Investor and all other Holders to registration pursuant to Section 4.5(a) will be 

conditioned upon such persons’ participation in such underwriting and the inclusion of 

such person’s Registrable Securities in the underwriting if such securities are of the same 

class of securities as the securities to be offered in the underwritten offering, and each 

such person will (together with the Company and the other persons distributing their 

securities through such underwriting) enter into an underwriting agreement in customary 

form with the underwriter or underwriters selected for such underwriting by the Company; 

provided that the Investor (as opposed to other Holders) shall not be required to 

indemnify any person in connection with any registration. If any participating person 

disapproves of the terms of the underwriting, such person may elect to withdraw 

therefrom by written notice to the Company, the managing underwriters and the Investor 

(if the Investor is participating in the underwriting). 

(vi) If either (x) the Company grants “piggyback” registration rights to one or 

more third parties to include their securities in an underwritten offering under a Shelf 

Registration Statement pursuant to Section 4.5(a)(ii) or (y) a Piggyback Registration 

under Section 4.5(a)(iv) relates to an underwritten offering on behalf of the Company, 

and in either case the managing underwriters advise the Company that in their reasonable 

opinion the number of securities requested to be included in such offering exceeds the 

number which can be sold without adversely affecting the marketability of such offering 

(including an adverse effect on the per share offering price), the Company will include in 

such offering only such number of securities that in the reasonable opinion of such 

managing underwriters can be sold without adversely affecting the marketability of the 

offering (including an adverse effect on the per share offering price), which securities 

will be so included in the following order of priority: (A) first, in the case of a Piggyback 

Registration under Section 4.5(a)(iv), the securities the Company proposes to sell, 

(B) then the Registrable Securities of the Investor and all other Holders who have 
17 

requested inclusion of Registrable Securities pursuant to Section 4.5(a)(ii) or Section 

4.5(a)(iv), as applicable, pro rata on the basis of the aggregate number of such securities 

or shares owned by each such person, (C) then the Registrable Securities (as defined in 

the Series C Preferred Stock Purchase Agreement) of the Trust and all other Holders who 

have received Registrable Securities (as defined in the Series C Preferred Stock Purchase 

Agreement) from the Trust and who have requested inclusion of Registrable Securities 

(as defined in the Series C Preferred Stock Purchase Agreement) in accordance with the 

terms of the Series C Preferred Stock Purchase Agreement, pro rata on the basis of the 

aggregate number of such securities or shares owned by each such person and (D) lastly, 

any other securities of the Company that have been requested to be so included, subject to 

the terms of this Agreement. 

(b) Expenses of Registration. All Registration Expenses incurred in connection with 

any registration, qualification or compliance hereunder shall be borne by the Company. All 

Selling Expenses incurred in connection with any registrations hereunder shall be borne by the 

holders of the securities so registered pro rata on the basis of the aggregate offering or sale price 

of the securities so registered. 

(c) Obligations of the Company. The Company shall use its reasonable best efforts, 

for so long as there are Registrable Securities outstanding, to take such actions as are in its 

control to become a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) 

and once the Company becomes a well-known seasoned issuer to take such actions as are in its 

control to remain a well-known seasoned issuer. In addition, whenever required to effect the 

registration of any Registrable Securities or facilitate the distribution of Registrable Securities 

pursuant to an effective Shelf Registration Statement, the Company shall, as expeditiously as 

reasonably practicable: 

(i) Prepare and file with the SEC, not later than fifteen (15) days after the 

request, a registration statement with respect to such Registrable Securities and use all 

commercially reasonable efforts to cause such registration statement to become effective, 

or prepare and file with the SEC not later than ten (10) days after the request a prospectus 

supplement with respect to a proposed offering of such Registrable Securities pursuant to 

an effective registration statement, subject to Section 4.5(d), and, upon the request of the 

Holders of a majority of the Registrable Securities registered thereunder, use all 

commercially reasonable efforts to keep such registration statement effective and keep 

such prospectus supplement current until the securities described therein are no longer 

Registrable Securities. 

(ii) Prepare and file with the SEC such amendments and supplements to the 

applicable registration statement and the prospectus or prospectus supplement used in 

connection with such registration statement as may be necessary to comply with the 

provisions of the Securities Act with respect to the disposition of all securities covered by 

such registration statement. 
18 

(iii) Furnish to the Holders and any underwriters such number of copies of the 

applicable registration statement and each such amendment and supplement thereto 

(including in each case all exhibits) and of a prospectus, including a preliminary 

prospectus, in conformity with the requirements of the Securities Act, and such other 

documents as they may reasonably request in order to facilitate the disposition of 

Registrable Securities owned or to be distributed by them. 

(iv) Use its reasonable best efforts to register and qualify the securities covered 

by such registration statement under such other securities or Blue Sky laws of such 

jurisdictions as shall be reasonably requested by the Holders or any managing 

underwriter(s), to keep such registration or qualification in effect for so long as such 

registration statement remains in effect, and to take any other action which may be 

reasonably necessary to enable such seller to consummate the disposition in such 

jurisdictions of the securities owned by such Holder; provided that the Company shall not 

be required in connection therewith or as a condition thereto to qualify to do business or 

to file a general consent to service of process in any such states or jurisdictions. 

(v) Notify each Holder of Registrable Securities at any time when a 

prospectus relating thereto is required to be delivered under the Securities Act of the 

happening of any event as a result of which the applicable prospectus, as then in effect, 

includes an untrue statement of a material fact or omits to state a material fact required to 

be stated therein or necessary to make the statements therein not misleading in light of 

the circumstances then existing. 

(vi) Give written notice to the Holders: 

(A) when any registration statement filed pursuant to Section 4.5(a) 

or any amendment thereto has been filed with the SEC (except for any 

amendment effected by the filing of a document with the SEC pursuant to the 

Exchange Act and when such registration statement or any post-effective 

amendment thereto has become effective; 

(B) of any request by the SEC for amendments or supplements to any 

registration statement or the prospectus included therein or for additional 

information; 

(C) of the issuance by the SEC of any stop order suspending the 

effectiveness of any registration statement or the initiation of any proceedings for 

that purpose; 

(D) of the receipt by the Company or its legal counsel of any 

notification with respect to the suspension of the qualification of the Common 

Stock for sale in any jurisdiction or the initiation or threatening of any 

proceeding for such purpose; 
19 

(E) of the happening of any event that requires the Company to make 

changes in any effective registration statement or the prospectus related to the 

registration statement in order to make the statements therein not misleading 

(which notice shall be accompanied by an instruction to suspend the use of the 

prospectus until the requisite changes have been made); and 

(F) if at any time the representations and warranties of the Company 

contained in any underwriting agreement contemplated by Section 4.5(c)(x) 

cease to be true and correct. 

(vii) Use its reasonable best efforts to prevent the issuance or obtain the 

withdrawal of any order suspending the effectiveness of any registration statement 

referred to in Section 4.5(c)(vi)(C) at the earliest practicable time. 

(viii) Upon the occurrence of any event contemplated by Section 4.5(c)(v) or 

4.5(c)(vi)(E), promptly prepare a post-effective amendment to such registration statement 

or a supplement to the related prospectus or file any other required document so that, as 

thereafter delivered to the Holders and any underwriters, the prospectus will not contain 

an untrue statement of a material fact or omit to state any material fact necessary to make 

the statements therein, in light of the circumstances under which they were made, not 

misleading. If the Company notifies the Holders in accordance with Section 4.5(c)(vi)(E) 

to suspend the use of the prospectus until the requisite changes to the prospectus have 

been made, then the Holders and any underwriters shall suspend use of such prospectus 

and use their reasonable best efforts to return to the Company all copies of such 

prospectus (at the Company’s expense) other than permanent file copies then in such 

Holders’ or underwriters’ possession. The total number of days that any such suspension 

may be in effect in any 12-month period shall not exceed 90 days. 

(ix) Use reasonable best efforts to procure the cooperation of the Company’s 

transfer agent in settling any offering or sale of Registrable Securities, including with 

respect to the transfer of physical stock certificates into book-entry form in accordance 

with any procedures reasonably requested by the Holders or any managing underwriter(s). 

(x) If an underwritten offering is requested pursuant to Section 4.5(a)(ii), enter 

into an underwriting agreement in customary form, scope and substance and take all such 

other actions reasonably requested by the Holders of a majority of the Registrable 

Securities being sold in connection therewith or by the managing underwriter(s), if any, 

to expedite or facilitate the underwritten disposition of such Registrable Securities, and in 

connection therewith in any underwritten offering (including making members of 

management and executives of the Company available to participate in “road shows”, 

similar sales events and other marketing activities), (A) make such representations and 

warranties to the Holders that are selling stockholders and the managing underwriter(s), if 

any, with respect to the business of the Company and its subsidiaries, and the Shelf 

Registration Statement, prospectus and documents, if any, incorporated or deemed to be 

incorporated by reference therein, in each case, in customary form, substance and scope, 
20 

and, if true, confirm the same if and when requested, (B) use its reasonable best efforts to 

furnish the underwriters with opinions of counsel to the Company, addressed to the 

managing underwriter(s), if any, covering the matters customarily covered in such 

opinions requested in underwritten offerings, (C) use its reasonable best efforts to obtain 

“cold comfort” letters from the independent certified public accountants of the Company 

(and, if necessary, any other independent certified public accountants of any business 

acquired by the Company for which financial statements and financial data are included 

in the Shelf Registration Statement) who have certified the financial statements included 

in such Shelf Registration Statement, addressed to each of the managing underwriter(s), if 

any, such letters to be in customary form and covering matters of the type customarily 

covered in “cold comfort” letters, (D) if an underwriting agreement is entered into, the 

same shall contain indemnification provisions and procedures customary in underwritten 

offerings (provided that the Investor shall not be obligated to provide any indemnity), and 

(E) deliver such documents and certificates as may be reasonably requested by the 

Holders of a majority of the Registrable Securities being sold in connection therewith, 

their counsel and the managing underwriter(s), if any, to evidence the continued validity 

of the representations and warranties made pursuant to clause (A) above and to evidence 

compliance with any customary conditions contained in the underwriting agreement or 

other agreement entered into by the Company. 

(xi) Make available for inspection by a representative of Holders that are 

selling stockholders, the managing underwriter(s), if any, and any attorneys or 

accountants retained by such Holders or managing underwriter(s), at the offices where 

normally kept, during reasonable business hours, financial and other records, pertinent 

corporate documents and properties of the Company, and cause the officers, directors and 

employees of the Company to supply all information in each case reasonably requested 

(and of the type customarily provided in connection with due diligence conducted in 

connection with a registered public offering of securities) by any such representative, 

managing underwriter(s), attorney or accountant in connection with such Shelf 

Registration Statement. 

(xii) Use reasonable best efforts to cause all such Registrable Securities to be 

listed on each national securities exchange on which similar securities issued by the 

Company are then listed or, if no similar securities issued by the Company are then listed 

on any national securities exchange, use its reasonable best efforts to cause all such 

Registrable Securities to be listed on such securities exchange as the Investor may 

designate. 

(xiii) If requested by Holders of a majority of the Registrable Securities being 

registered and/or sold in connection therewith, or the managing underwriter(s), if any, 

promptly include in a prospectus supplement or amendment such information as the 

Holders of a majority of the Registrable Securities being registered and/or sold in 

connection therewith or managing underwriter(s), if any, may reasonably request in order 

to permit the intended method of distribution of such securities and make all required 
21 

filings of such prospectus supplement or such amendment as soon as practicable after the 

Company has received such request. 

(xiv) Timely provide to its security holders earning statements satisfying the 

provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. 

(d) Suspension of Sales. Upon receipt of written notice from the Company that a 

registration statement, prospectus or prospectus supplement contains or may contain an untrue 

statement of a material fact or omits or may omit to state a material fact required to be stated 

therein or necessary to make the statements therein not misleading or that circumstances exist 

that make inadvisable use of such registration statement, prospectus or prospectus supplement, 

the Investor and each Holder of Registrable Securities shall forthwith discontinue disposition of 

Registrable Securities until the Investor and/or Holder has received copies of a supplemented or 

amended prospectus or prospectus supplement, or until the Investor and/or such Holder is 

advised in writing by the Company that the use of the prospectus and, if applicable, prospectus 

supplement may be resumed, and, if so directed by the Company, the Investor and/or such 

Holder shall deliver to the Company (at the Company’s expense) all copies, other than 

permanent file copies then in the Investor and/or such Holder’s possession, of the prospectus and, 

if applicable, prospectus supplement covering such Registrable Securities current at the time of 

receipt of such notice. The total number of days that any such suspension may be in effect in any 

12-month period shall not exceed 90 days. 

(e) Termination of Registration Rights. A Holder’s registration rights as to any 

securities held by such Holder (and its Affiliates, partners, members and former members) shall 

not be available unless such securities are Registrable Securities. 

(f) Furnishing Information. 

(i) Neither the Investor nor any Holder shall use any free writing prospectus 

(as defined in Rule 405) in connection with the sale of Registrable Securities without the 

prior written consent of the Company. 

(ii) It shall be a condition precedent to the obligations of the Company to take 

any action pursuant to Section 4.5(c) that the Investor and/or the selling Holders and the 

underwriters, if any, shall furnish to the Company such information regarding themselves, 

the Registrable Securities held by them and the intended method of disposition of such 

securities as shall be required to effect the registered offering of their Registrable 

Securities. 

(g) Indemnification. 

(i) The Company agrees to indemnify each Holder and, if a Holder is a 

person other than an individual, such Holder’s officers, directors, employees, agents, 

representatives and Affiliates, and each Person, if any, that controls a Holder within the 

meaning of the Securities Act (each, an “Indemnitee”), against any and all losses, claims, 
22 

damages, actions, liabilities, costs and expenses (including reasonable fees, expenses and 

disbursements of attorneys and other professionals incurred in connection with 

investigating, defending, settling, compromising or paying any such losses, claims, 

damages, actions, liabilities, costs and expenses), joint or several, arising out of or based 

upon any untrue statement or alleged untrue statement of material fact contained in any 

registration statement, including any preliminary prospectus or final prospectus contained 

therein or any amendments or supplements thereto or any documents incorporated therein 

by reference or contained in any free writing prospectus (as such term is defined in Rule 

405) prepared by the Company or authorized by it in writing for use by such Holder (or 

any amendment or supplement thereto); or any omission to state therein a material fact 

required to be stated therein or necessary to make the statements therein, in light of the 

circumstances under which they were made, not misleading; provided that the Company 

shall not be liable to such Indemnitee in any such case to the extent that any such loss, 

claim, damage, liability (or action or proceeding in respect thereof) or expense arises out 

of or is based upon (A) an untrue statement or omission made in such registration 

statement, including any such preliminary prospectus or final prospectus contained 

therein or any such amendments or supplements thereto or contained in any free writing 

prospectus (as such term is defined in Rule 405) prepared by the Company or authorized 

by it in writing for use by such Holder (or any amendment or supplement thereto), in 

reliance upon and in conformity with information regarding such Indemnitee or its plan 

of distribution or ownership interests which was furnished in writing to the Company by 

such Indemnitee for use in connection with such registration statement, including any 

such preliminary prospectus or final prospectus contained therein or any such 

amendments or supplements thereto, or (B) offers or sales effected by or on behalf of 

such Indemnitee “by means of” (as defined in Rule 159A) a “free writing prospectus” (as 

defined in Rule 405) that was not authorized in writing by the Company. 

(ii) If the indemnification provided for in Section 4.5(g)(i) is unavailable to an 

Indemnitee with respect to any losses, claims, damages, actions, liabilities, costs or 

expenses referred to therein or is insufficient to hold the Indemnitee harmless as 

contemplated therein, then the Company, in lieu of indemnifying such Indemnitee, shall 

contribute to the amount paid or payable by such Indemnitee as a result of such losses, 

claims, damages, actions, liabilities, costs or expenses in such proportion as is appropriate 

to reflect the relative fault of the Indemnitee, on the one hand, and the Company, on the 

other hand, in connection with the statements or omissions which resulted in such losses, 

claims, damages, actions, liabilities, costs or expenses as well as any other relevant 

equitable considerations. The relative fault of the Company, on the one hand, and of the 

Indemnitee, on the other hand, shall be determined by reference to, among other factors, 

whether the untrue statement of a material fact or omission to state a material fact relates 

to information supplied by the Company or by the Indemnitee and the parties’ relative 

intent, knowledge, access to information and opportunity to correct or prevent such 

statement or omission. The Company and each Holder agree that it would not be just and 

equitable if contribution pursuant to this Section 4.5(g)(ii) were determined by pro rata

allocation or by any other method of allocation that does not take account of the equitable 
23 

considerations referred to in Section 4.5(g)(i). No Indemnitee guilty of fraudulent 

misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be 

entitled to contribution from the Company if the Company was not also guilty of such 

fraudulent misrepresentation. 

(h) Assignment of Registration Rights. The rights of the Investor to registration of 

Registrable Securities pursuant to Section 4.5(a) may be assigned by the Investor to a transferee 

or assignee of Registrable Securities with a liquidation preference or, in the case of Registrable 

Securities other than Series E Preferred Stock, a market value, no less than an amount equal to 

$200 million; provided, however, the transferor shall, within ten days after such transfer, furnish 

to the Company written notice of the name and address of such transferee or assignee and the 

number and type of Registrable Securities that are being assigned. For purposes of this Section 

4.5(h), “market value” per share of Common Stock shall be the last reported sale price of the 

Common Stock on the national securities exchange on which the Common Stock is listed or 

admitted to trading on the last trading day prior to the proposed transfer and “market value” of 

the Exchange Shares shall be the market value of a number of shares of Common Stock issuable 

upon conversion of such Exchange Shares (whether or not such Exchange Shares are then 

convertible). 

(i) Clear Market. With respect to any underwritten offering of Registrable Securities 

by the Investor or other Holders pursuant to this Section 4.5, the Company agrees not to effect 

(other than pursuant to such registration or pursuant to a Special Registration) any public sale or 

distribution, or to file any Shelf Registration Statement (other than such registration or a Special 

Registration) covering, in the case of an underwritten offering of Common Stock, any of its 

equity securities or, in the case of an underwritten offering of Series E Preferred Stock, any 

preferred stock of the Company, or, in each case, any securities convertible into or exchangeable 

or exercisable for such securities, during the period not to exceed 10 days prior and 60 days 

following the effective date of such offering or such longer period up to 90 days as may be 

requested by the managing underwriter for such underwritten offering. The Company also 

agrees to cause such of its directors and senior executive officers to execute and deliver 

customary lock-up agreements in such form and for such time period up to 90 days as may be 

requested by the managing underwriter. “Special Registration” means the registration of 

(A) equity securities and/or options or other rights in respect thereof solely registered on 

Form S-4 or Form S-8 (or successor form) or (B) shares of equity securities and/or options or 

other rights in respect thereof to be offered to directors, members of management, employees, 

consultants, customers, lenders or vendors of the Company or Company Subsidiaries or in 

connection with dividend reinvestment plans. 

(j) Rule 144; Rule 144A. With a view to making available to the Investor and Holders 

the benefits of certain rules and regulations of the SEC which may permit the sale of the 

Registrable Securities to the public without registration, the Company agrees to use its 

reasonable best efforts to: 
24 

(i) make and keep public information available, as those terms are understood 

and defined in Rule 144(c)(1) or any similar or analogous rule promulgated under the 

Securities Act, at all times after the Signing Date; 

(ii) (A) file with the SEC, in a timely manner, all reports and other documents 

required of the Company under the Exchange Act, and (B) if at any time the Company is 

not required to file such reports, make available, upon the request of any Holder, such 

information necessary to permit sales pursuant to Rule 144A (including the information 

required by Rule 144A(d)(4) under the Securities Act); 

(iii) so long as the Investor or a Holder owns any Registrable Securities, 

furnish to the Investor or such Holder forthwith upon request: a written statement by the 

Company as to its compliance with the reporting requirements of Rule 144 under the 

Securities Act, and of the Exchange Act; a copy of the most recent annual or quarterly 

report of the Company; and such other reports and documents as the Investor or Holder 

may reasonably request in availing itself of any rule or regulation of the SEC allowing it 

to sell any such securities to the public without registration; and 

(iv) take such further action as any Holder may reasonably request, all to the 

extent required from time to time to enable such Holder to sell Registrable Securities 

without registration under the Securities Act. 

(k) As used in this Section 4.5, the following terms shall have the following respective 

meanings: 

(i) “Holder” means the Investor and any other holder of Registrable 

Securities to whom the registration rights conferred by this Agreement have been 

transferred in compliance with Section 4.5(h). 

(ii) “Holders’ Counsel” means one counsel for the selling Holders chosen by 

Holders holding a majority interest in the Registrable Securities being registered. 

(iii) “Register,” “registered,” and “registration” shall refer to a registration 

effected by preparing and (A) filing a registration statement in compliance with the 

Securities Act and applicable rules and regulations thereunder, and the declaration or 

ordering of effectiveness of such registration statement or (B) filing a prospectus and/or 

prospectus supplement in respect of an appropriate effective registration statement on 

Form S-3. 

(iv) “Registrable Securities” means (A) all Series E Preferred Stock and all 

Exchange Shares and (B) any equity securities issued or issuable directly or indirectly 

with respect to the securities referred to in the foregoing clause (A) by way of conversion, 

exercise or exchange thereof dividend or share split or in connection with a combination 

of shares, recapitalization, reclassification, merger, amalgamation, arrangement, 

consolidation or other reorganization; provided that, once issued, such securities will not 
25 

be Registrable Securities when (1) they are sold pursuant to an effective registration 

statement under the Securities Act, (2) except as provided below in Section 4.5(o), they 

may be sold pursuant to Rule 144 without limitation thereunder on volume or manner of 

sale, (3) they shall have ceased to be outstanding or (4) they have been sold in a private 

transaction in which the transferor’s rights under this Agreement are not assigned to the 

transferee of the securities. No Registrable Securities may be registered under more than 

one registration statement at any one time. 

(v) “Registration Expenses” mean all expenses incurred by the Company in 

effecting any registration pursuant to this Agreement (whether or not any registration or 

prospectus becomes effective or final) or otherwise complying with its obligations under 

this Section 4.5, including all registration, filing and listing fees, printing expenses, fees 

and disbursements of counsel for the Company, blue sky fees and expenses, expenses 

incurred in connection with any “road show”, the reasonable fees and disbursements of 

Holders’ Counsel, and expenses of the Company’s independent accountants in 

connection with any regular or special reviews or audits incident to or required by any 

such registration, but shall not include Selling Expenses. 

(vi) “Rule 144”, “Rule 144A”, “Rule 159A”, “Rule 405” and “Rule 415” 

mean, in each case, such rule promulgated under the Securities Act (or any successor 

provision), as the same shall be amended from time to time. 

(vii) “Selling Expenses” mean all discounts, selling commissions and stock 

transfer taxes applicable to the sale of Registrable Securities and fees and disbursements 

of counsel for any Holder (other than the fees and disbursements of Holders’ Counsel 

included in Registration Expenses). 

(l) At any time, any holder of Securities (including any Holder) may elect to forfeit its 

rights set forth in this Section 4.5 from that date forward; provided that a Holder forfeiting such 

rights shall nonetheless be entitled to participate under Section 4.5(a)(iv) – (vi) in any Pending 

Underwritten Offering to the same extent that such Holder would have been entitled to if the 

holder had not withdrawn; and provided, further, that no such forfeiture shall terminate a 

Holder’s rights or obligations under Section 4.5(f) with respect to any prior registration or 

Pending Underwritten Offering. “Pending Underwritten Offering” means, with respect to any 

Holder forfeiting its rights pursuant to this Section 4.5(l), any underwritten offering of 

Registrable Securities in which such Holder has advised the Company of its intent to register its 

Registrable Securities either pursuant to Section 4.5(a)(ii) or 4.5(a)(iv) prior to the date of such 

Holder’s forfeiture. 

(m) Specific Performance. The parties hereto acknowledge that there would be no 

adequate remedy at law if the Company fails to perform any of its obligations under this 

Section 4.5 and that the Investor and the Holders from time to time may be irreparably harmed 

by any such failure, and accordingly agree that the Investor and such Holders, in addition to any 

other remedy to which they may be entitled at law or in equity, to the fullest extent permitted and 

enforceable under applicable law, shall be entitled to compel specific performance of the 
26 

obligations of the Company under this Section 4.5 in accordance with the terms and conditions 

of this Section 4.5. 

(n) No Inconsistent Agreements. The Company shall not, on or after the Signing Date, 

enter into any agreement with respect to its securities that may impair the rights granted to the 

Investor and the Holders under this Section 4.5 or that otherwise conflicts with the provisions 

hereof in any manner that may impair the rights granted to the Investor and the Holders under 

this Section 4.5. In the event the Company has, prior to the Signing Date, entered into any 

agreement with respect to its securities that is inconsistent with the rights granted to the Investor 

and the Holders under this Section 4.5 (including agreements that are inconsistent with the order 

of priority contemplated by Section 4.5(a)(vi)) or that may otherwise conflict with the provisions 

hereof, the Company shall use its reasonable best efforts to amend such agreements to ensure 

they are consistent with the provisions of this Section 4.5. 

(o) Certain Offerings by the Investor. In the case of any securities held by the Investor 

that cease to be Registrable Securities solely by reason of clause (2) in the definition of 

“Registrable Securities,” the provisions of Sections 4.5(a)(ii), clauses (iv), (ix) and (x)-(xii) of 

Section 4.5(c), Section 4.5(g) and Section 4.5(i) shall continue to apply until such securities 

otherwise cease to be Registrable Securities. In any such case, an “underwritten” offering or 

other disposition shall include any distribution of such securities on behalf of the Investor by one 

or more broker-dealers, an “underwriting agreement” shall include any purchase agreement 

entered into by such broker-dealers, and any “registration statement” or “prospectus” shall 

include any offering document approved by the Company and used in connection with such 

distribution. 

4.6 Depositary Shares. Upon request by the Investor in connection with a proposed 

transfer of the Series E Preferred Stock, the Company shall promptly enter into a depositary 

arrangement, pursuant to customary agreements reasonably satisfactory to the Investor and with 

a depositary reasonably acceptable to the Investor, pursuant to which the Series E Preferred 

Stock may be deposited and depositary shares, each representing a fraction of a Series E 

Preferred Stock as specified by the Investor, may be issued. From and after the execution of any 

such depositary arrangement, and the deposit of any Series E Preferred Stock pursuant thereto, 

the depositary shares issued pursuant thereto shall be deemed “Series E Preferred Stock” and, 

as applicable, “Registrable Securities” for purposes of this Agreement. 

4.7 Restriction on Dividends and Repurchases. 

(a) Notwithstanding any contrary provision of Section 4.8 of the Securities Purchase 

Agreement dated as of November 25, 2008 between the Company and the Investor, as amended 

(the “Series D Preferred Stock Purchase Agreement”), prior to the earlier of (x) the fifth 

anniversary of the Closing Date and (y) the date on which the Series E Preferred Stock has been 

redeemed in whole or the Investor has transferred all of the Series E Preferred Stock to third 

parties which are not Affiliates of the Investor, neither the Company nor any Company 

Subsidiary shall, without the consent of the Investor: 
27 

(i) declare or pay any dividend or make any distribution on the Common 

Stock (other than (A) dividends payable solely in shares of Common Stock and 

(B) dividends or distributions of rights or Junior Stock in connection with a stockholders’ 

rights plan); or 

(ii) redeem, purchase or acquire any shares of Common Stock or other capital 

stock or other equity securities of any kind of the Company, or any trust preferred 

securities issued by the Company or any Affiliate of the Company, other than 

(A) redemptions, purchases or other acquisitions of any such securities held by the 

Investor, (B) redemptions, purchases or other acquisitions of the Series E Preferred Stock, 

(C) purchases or other acquisitions of Series C Preferred Stock from the Trust, 

(D) redemptions, purchases or other acquisitions of shares of Common Stock or other 

Junior Stock, in each case in this clause (D) in connection with the administration of any 

employee benefit plan in the ordinary course of business (including purchases to offset 

the Share Dilution Amount (as defined below) pursuant to a publicly announced 

repurchase plan) and consistent with past practice; provided that any purchases to offset 

the Share Dilution Amount shall in no event exceed the Share Dilution Amount, (E) any 

redemption or repurchase of rights pursuant to any stockholders’ rights plan, (F) the 

acquisition by the Company or any of the Company Subsidiaries of record ownership in 

Junior Stock or Parity Stock for the beneficial ownership of any other persons (other than 

the Company or any other Company Subsidiary), including as trustees or custodians (the 

“Permitted Repurchases”), (G) the conversion of the Series C Preferred Stock into 

Common Stock and (H) the exchange or conversion of Junior Stock (other than the 

Series C Preferred Stock) for or into other Junior Stock or of Parity Stock or trust 

preferred securities for or into other Parity Stock (with the same or lesser aggregate 

liquidation amount) or Junior Stock, in each case set forth in this clause (H), solely to the 

extent required pursuant to binding contractual agreements entered into prior to the 

Signing Date or any subsequent agreement for the accelerated exercise, settlement or 

exchange thereof for Common Stock. “Share Dilution Amount” means the increase in 

the number of diluted shares outstanding (determined in accordance with GAAP, and as 

measured from the date of the Company’s most recently filed financial statements of the 

Company and its consolidated subsidiaries prior to the Closing Date) resulting from the 

grant, vesting or exercise of equity-based compensation to employees and equitably 

adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar 

transaction. 

(b) Until such time as the Investor ceases to own any Series E Preferred Stock, the 

Company shall not repurchase any Series E Preferred Stock from any holder thereof, whether by 

means of open market purchase, negotiated transaction, or otherwise, other than Permitted 

Repurchases, unless it offers to repurchase a ratable portion of the Series E Preferred Stock then 

held by the Investor on the same terms and conditions. 

(c) “Junior Stock” means Common Stock, the Series C Preferred Stock (after the 

Company’s stockholders approve the amendment described in Section 3.1(b) to the Charter to 

have the Series E Preferred Stock rank senior to the Series C Preferred Stock) and any other class 
28 

or series of stock of the Company (i) initially issued to any person other than the Investor or (ii) 

initially issued to the Investor and the terms of which expressly provide that it ranks junior to the 

Series E Preferred Stock as to dividend rights and/or as to rights on liquidation, dissolution or 

winding up of the Company. “Parity Stock” means the Series C Preferred Stock (before the 

Company’s stockholders approve the Charter amendment referred to in Section 3.1(b)) and any 

class or series of stock of the Company the terms of which do not expressly provide that such 

class or series will rank senior or junior to the Series E Preferred Stock as to dividend rights 

and/or as to rights on liquidation, dissolution or winding up of the Company (in each case 

without regard to whether dividends accrue cumulatively or non-cumulatively). 

4.8 Repurchase of Investor Securities. 

(a) Following the redemption in whole of the Series E Preferred Stock held by the 

Investor or the Transfer by the Investor of all of the Series E Preferred Stock to one or more third 

parties not affiliated with the Investor and so long as the Investor does not Control the Company, 

the Company may repurchase, in whole or in part, at any time any other equity or debt securities 

of the Company owned by the Investor and then held by the Investor, upon notice given as 

provided in clause (b) below, at the Fair Market Value of the equity or debt security. For the 

avoidance of doubt, while there is Board of Directors control (or the potential to gain Board of 

Directors control as a result of existing contractual rights) by the Investor (or any affiliate of the 

Investor), the Company may not exercise its rights under this Section 4.8. 

(b) Notice of every repurchase of equity securities of the Company held by the Investor 

shall be given at the address and in the manner set forth for such party in Section 5.6. Each 

notice of repurchase given to the Investor shall state: (i) the number and type of securities to be 

repurchased, (ii) the Board of Directors’ determination of Fair Market Value of such securities 

and (iii) the place or places where certificates representing such securities are to be surrendered 

for payment of the repurchase price. The repurchase of the securities specified in the notice shall 

occur as soon as practicable following the determination of the Fair Market Value of the 

securities. 

(c) As used in this Section 4.8, the following terms shall have the following respective 

meanings: 

(i) “Appraisal Procedure” means a procedure whereby two independent 

appraisers, one chosen by the Company and one by the Investor, shall mutually agree 

upon the Fair Market Value. Each party shall deliver a notice to the other appointing its 

appraiser within 10 days after the Appraisal Procedure is invoked. If within 30 days after 

appointment of the two appraisers they are unable to agree upon the Fair Market Value, a 

third independent appraiser shall be chosen within 10 days thereafter by the mutual 

consent of such first two appraisers. The decision of the third appraiser so appointed and 

chosen shall be given within 30 days after the selection of such third appraiser. If three 

appraisers shall be appointed and the determination of one appraiser is disparate from the 

middle determination by more than twice the amount by which the other determination is 

disparate from the middle determination, then the determination of such appraiser shall 
29 

be excluded, the remaining two determinations shall be averaged and such average shall 

be binding and conclusive upon the Company and the Investor; otherwise, the average of 

all three determinations shall be binding upon the Company and the Investor. The costs 

of conducting any Appraisal Procedure shall be borne by the Company. 

(ii) “Fair Market Value” means, with respect to any security, the fair market 

value of such security as determined by the Board of Directors, acting in good faith in 

reliance on an opinion of a nationally recognized independent investment banking firm 

retained by the Company for this purpose and certified in a resolution to the Investor. If 

the Investor does not agree with the Board of Directors’ determination, it may object in 

writing within 10 days of receipt of the Board of Directors’ determination. In the event 

of such an objection, an authorized representative of the Investor and the chief executive 

officer of the Company shall promptly meet to resolve the objection and to agree upon 

the Fair Market Value. If the chief executive officer and the authorized representative are 

unable to agree on the Fair Market Value during the 10-day period following the delivery 

of the Investor’s objection, the Appraisal Procedure may be invoked by either party to 

determine the Fair Market Value by delivery of a written notification thereof not later 

than the 30th day after delivery of the Investor’s objection. 

(iii) “Control” means the power to direct the management and policies of the 

Company, directly or indirectly, whether through the ownership of voting securities, by 

contract, by the power to control the Board of Directors or otherwise. 

4.9 Executive Compensation. 

(a) During the Relevant Period, the Company shall take all necessary action to ensure 

that its Benefit Plans comply in all respects with Section 111 of the EESA, including the 

provisions for Systemically Significant Failing Institutions, as implemented by any guidance or 

regulation thereunder, including Notice 2008-PSSFI, any amendments to Notice 2008-PSSFI, or 

any other guidance or regulations under Section 111 of the EESA, as the same shall be in effect 

from time to time (“Compensation Regulations”), and shall not adopt any new Benefit Plan (i) 

that does not comply therewith or (ii) that does not expressly state and require that such Benefit 

Plan and any compensation thereunder shall be subject to any relevant Compensation 

Regulations adopted, issued or released on or after the date any such Benefit Plan is adopted. To 

the extent that the Compensation Regulations change during the Relevant Period in a manner that 

requires changes to then-existing Benefit Plans, the Company shall effect such changes to its 

Benefit Plans as promptly as practicable after it has actual knowledge of such changes in order to 

be in compliance with this Section 4.9(a) (and shall be deemed to be in compliance for a 

reasonable period to effect such changes). 

(b) (1) In addition to the requirements set forth in Section 4.9(a) above, the Company 

shall, during the Relevant Period, take all necessary action to limit any “golden parachute 

payments” to the employees of the Company and the Company Subsidiaries who participate in 

the Company’s Senior Partners Plan (the “Senior Partners”) to the amounts permitted by the 

regulations relating to participants in the EESA Capital Purchase Program and the guidelines and 
30 

rules relating thereto, including the rules set forth in 31 CFR Part 30, that have been issued and 

are in effect as of the Closing Date, as if such Senior Partners were Senior Executive Officers for 

purposes of the EESA (except that equity denominated awards settled solely in equity shall not 

be included in such limit on “golden parachute payments” to Senior Partners). “Senior 

Executive Officers” means the Company’s “senior executive officers” as defined in Section 111 

of the EESA and regulations issued or to be issued thereunder, including the rules set forth in 31 

CFR Part 30 or any rules that replace 31 CFR Part 30; provided that, solely for purposes of the 

foregoing sentence, “Senior Executive Officers” shall mean the Company’s “senior executive 

officers” as defined in Section 111 of the EESA and regulations issued thereunder, including the 

rules set forth in 31 CFR Part 30 that have been issued and are effective as of the Closing Date. 

(2) In addition to the requirements set forth in Section 4.9(a) above, in 

furtherance of the Company’s commitment to limit golden parachute payments to certain 

Senior Partners as set forth in Section 4.9(b)(1), and to ensure compliance with the 

provisions of the EESA Capital Purchase Program and the guidelines and regulations 

relating thereto applicable to certain Senior Partners pursuant to Section 4.9(b)(1), it is 

further agreed that the Company shall take all necessary action to ensure that the sum of 

(A) a Senior Partner’s annual bonus for 2009, (B) all retention payments paid or payable 

to such Senior Partner under any retention arrangement between the Senior Partner and 

the Company for any period ending on or prior to March 31, 2010 and (C) any and all 

amounts paid or payable to such Senior Partner in connection with the termination of 

such Senior Partner’s employment prior to March 31, 2010 which would be taken into 

account in applying the compensation limitation under Section 4.9(b)(1) above, other 

than any payments pursuant to outstanding awards under the Company’s Senior Partners 

Plan, shall not exceed 3.5 times the sum of such Senior Partner’s base salary and target 

annual bonus for 2008. For this purpose, actual annual bonus for 2009 and target annual 

bonus for 2008 will include supplemental bonus and quarterly cash payments under the 

Company’s historic quarterly bonus program consistent with, and in amounts not 

exceeding, past practice. 

(3) For the avoidance of doubt, (i) the limits of Sections 4.9(b)(1) and (2) are in 

addition to any applicable requirements under provisions of the EESA prohibiting golden 

parachute payments to the Senior Executive Officers and the relevant Compensation 

Regulations, and (ii) to the extent that any Benefit Plan or any payment permissible under 

Section 4.9(c) is inconsistent with any relevant Compensation Regulations, such 

Compensation Regulations shall control. 

 Notwithstanding the other provisions of this Section 4.9(b), the Company’s 

obligations under this Section 4.9(b) shall be on a best efforts basis with respect to the 

Senior Partners who are not U.S.-based to the extent of its existing Benefit Plans. In 

addition, after the Closing Date in connection with the hiring or promotion of a Covered 

Employee and/or the promulgation of applicable Compensation Regulations, to the extent 

any Covered Employee shall not have executed a waiver with respect to the application to 

such Covered Employee of the Compensation Regulations, the Company shall use its 

best efforts to (i) obtain from such Covered Employee a waiver in a form satisfactory to 
31 

the Investor and (ii) deliver such waiver to the Investor as promptly as possible. 

“Covered Employee” means each (i) Senior Executive Officer, (ii) Senior Partner and 

(iii) other employee of the Company or its subsidiaries determined at any time to be 

subject to Section 111 of the EESA. 

(c) During the Relevant Period, the Company shall take all necessary action to ensure 

that the annual bonus pools payable to the Senior Executive Officers and the Senior Partners in 

respect of each of 2008 and 2009 shall not exceed the average of the annual bonus pools paid to 

the Senior Executive Officers and the Senior Partners for 2006 and 2007 (in each case exclusive 

of the Company’s historic quarterly bonus program including but not limited to supplemental 

bonus and quarterly cash payments, the amount of which will not increase for any participant) 

and subject to appropriate adjustment for new hires and departures. 

(d) [RESERVED]. 

(e) The Company confirms that none of (i) the proceeds of the Purchase Price (as such 

term is used and defined in the Series D Preferred Stock Purchase Agreement) or (ii) the funds 

provided to the Company under the Credit Agreement (collectively, the “Funds”) were used nor 

shall they be used to pay annual bonuses, or other future cash performance awards to executives 

of the Company or Senior Partners. The parties desire that this confirmation be auditable and 

agree that there are a number of appropriate methods for verifying this confirmation (particularly 

in light of expected business changes at the Company). Until the date that any annual bonuses in 

respect of 2009 are paid, it is agreed that the test for the foregoing will be that, at the time when 

any annual bonuses or cash performance awards granted after the date of this Agreement are paid 

to executive officers or Senior Partners, the Company will have received aggregate dividends, 

distributions and other payments from its subsidiaries subsequent to September 16, 2008 greater 

than the aggregate amount of such annual bonuses, such cash performance awards and amounts 

paid pursuant to the Company’s historic quarterly bonus program (including but not limited to 

supplemental bonus and quarterly cash payments, the amount of which will not increase for any 

participant) paid to executive officers and Senior Partners subsequent to that date. At and after 

the date that any annual bonuses in respect of 2009 are paid, the test for the foregoing 

confirmation will be that, at the time when any annual bonuses or cash performance awards 

granted after the date of this Agreement are vested or otherwise earned by executive officers or 

Senior Partners, the aggregate adjusted net income for the relevant year (being the year in which 

or in respect of which such bonuses or awards are vested or so earned) of the insurance company 

subsidiaries of the Company included for such year in the consolidated financial statements of 

the Company, excluding any such adjusted net income that was dividended or otherwise 

distributed to the Company and taken into account in satisfying the test under the prior sentence, 

shall exceed the aggregate amount of such annual bonuses, such cash performance awards and 

amounts pursuant to the Company’s historic quarterly bonus program (including but not limited 

to supplemental bonus and quarterly cash payments, the amount of which will not increase for 

any participant), in each case vested or otherwise earned in or in respect of such year. Each party 

agrees to negotiate in good faith and promptly at the request of the other to develop additional or 

alternative appropriate formulations to test for this confirmation. 
32 

(f) The Company confirms that none of the Funds have been nor shall be used to pay 

any electively deferred compensation in respect of or otherwise resulting from the termination of 

the deferred compensation plans by the Company or the Company subsidiaries as described in 

Item 5.02 of the Company’s Current Report on Form 8-K dated November 18, 2008. 

(g) The parties agree that Sections 4.10(b) and (c) of the Series D Preferred Stock 

Purchase Agreement shall remain in full force and effect in accordance with their terms during 

the period that only the Warrant is outstanding and the Investor no longer owns any Series E 

Preferred Stock. 

4.10 Restrictions on Lobbying. Until such time as the Investor ceases to own any 

Series E Preferred Stock, the Company shall continue to maintain and implement its 

comprehensive written policy on lobbying, governmental ethics and political activity and 

distribute such policy to all Company employees and lobbying firms involved in any such 

activity. Any material amendments to such policy shall require the prior written consent of the 

Investor until the Investor no longer owns any Series E Preferred Stock, and any material 

deviations from such policy, whether in contravention thereof or pursuant to waivers provided 

for thereunder, shall promptly be reported to the Investor. Such policy shall, at a minimum, 

(i) require compliance with all applicable law; (ii) apply to the Company, the Company 

Subsidiaries and affiliated foundations; (iii) govern (a) the provision of items of value to any 

government officials, (b) lobbying and (c) political activities and contributions; and (iv) provide 

for (a) internal reporting and oversight and (b) mechanisms for addressing non-compliance with 

the policy. 

4.11 Restrictions on Expenses. Until such time as the Investor ceases to own any 

Series E Preferred Stock, the Company shall continue to maintain and implement its 

comprehensive written policy on corporate expenses and distribute such policy to all Company 

employees by posting such policy on the Company’s intranet and directing all Company 

employees via electronic mail to review such policy as posted. Any material amendments to 

such policy shall require the prior written consent of the Investor until such time as the Investor 

no longer owns any Series E Preferred Stock, and any material deviations from such policy, 

whether in contravention thereof or pursuant to waivers provided for thereunder, shall promptly 

be reported to the Investor. Such policy shall, at a minimum: (i) require compliance with all 

applicable law; (ii) apply to the Company and the Company Subsidiaries; (iii) govern (a) the 

hosting, sponsorship or other payment for conferences and events, (b) the use of corporate 

aircraft, (c) travel accommodations and expenditures, (d) consulting arrangements with outside 

service providers, (e) any new lease or acquisition of real estate, (f) expenses relating to office or 

facility renovations or relocations and (g) expenses relating to entertainment or holiday parties; 

and (iv) provide for (a) internal reporting and oversight and (b) mechanisms for addressing noncompliance with the policy. 

4.12 Risk Management Committee. The Company has established and, during the 

Relevant Period, will maintain a risk management committee of the Board of Directors that will 

oversee the major risks involved in the Company’s business operations and review the 

Company’s actions to mitigate and manage those risks. 
33 

4.13 Dividend Rate Adjustment. The dividend rate on the Series E Preferred Stock 

beneficially owned at the time by the Investor is subject to adjustment in the sole discretion of 

the Secretary of the Department of the Treasury in light of, inter alia, then-prevailing economic 

conditions and the financial condition of the Company, with the objective of protecting the U.S. 

taxpayer. 

Article 5

Miscellaneous 

5.1 Termination. This Agreement may be terminated at any time prior to the Closing: 

(a) by either the Investor or the Company if the Closing shall not have occurred by the 

30th calendar day following the Signing Date; provided, however, that in the event the Closing 

has not occurred by such 30th calendar day, the parties will consult in good faith to determine 

whether to extend the term of this Agreement, it being understood that the parties shall be 

required to consult only until the fifth day after such 30th calendar day and not be under any 

obligation to extend the term of this Agreement thereafter; provided, further, that the right to 

terminate this Agreement under this Section 5.1(a) shall not be available to any party whose 

breach of any representation or warranty or failure to perform any obligation under this 

Agreement shall have caused or resulted in the failure of the Closing to occur on or prior to such 

date; or 

(b) by either the Investor or the Company in the event that any Governmental Entity 

shall have issued an order, decree or ruling or taken any other action restraining, enjoining or 

otherwise prohibiting the transactions contemplated by this Agreement and such order, decree, 

ruling or other action shall have become final and nonappealable; or 

(c) by the mutual written consent of the Investor and the Company. 

In the event of termination of this Agreement as provided in this Section 5.1, this Agreement 

shall forthwith become void and there shall be no liability on the part of either party hereto 

except that nothing herein shall relieve either party from liability for any breach of this 

Agreement. 

5.2 Survival of Representations and Warranties. All covenants and agreements, other 

than those which by their terms apply in whole or in part after the Closing, shall terminate as of 

the Closing. The representations and warranties of the Company made herein or in any 

certificates delivered in connection with the Closing shall survive the Closing without limitation. 

5.3 Amendment. No amendment of any provision of this Agreement will be effective 

unless made in writing and signed by an officer or a duly authorized representative of each party; 

provided that the Investor may unilaterally amend any provision of this Agreement to the extent 

required to comply with any changes after the Signing Date in applicable federal statutes. No 

failure or delay by any party in exercising any right, power or privilege hereunder shall operate 
34 

as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further 

exercise of any other right, power or privilege. The rights and remedies herein provided shall be 

cumulative of any rights or remedies provided by law. 

5.4 Waiver of Conditions. The conditions to each party’s obligation to consummate 

the Exchange are for the sole benefit of such party and may be waived by such party in whole or 

in part to the extent permitted by applicable law. No waiver will be effective unless it is in a 

writing signed by a duly authorized officer of the waiving party that makes express reference to 

the provision or provisions subject to such waiver. 

5.5 Governing Law: Submission to Jurisdiction, Etc. This Agreement, and the rights 

and obligations of the parties hereunder, shall be governed by, and construed and interpreted in 

accordance with, United States federal law and not the law of any State. To the extent that a 

court looks to the laws of any State to determine or define the United States federal law, it is the 

intention of the parties hereto that such court shall look only to the laws of the State of New 

York without regard to the rules of conflicts of laws. Each of the parties hereto agrees (a) to 

submit to the exclusive jurisdiction and venue of the United States District Court for the District 

of Columbia and the United States Court of Federal Claims for any and all actions, suits or 

proceedings arising out of or relating to this Agreement or the transactions contemplated hereby, 

and (b) that notice may be served upon (i) the Company at the address and in the manner set 

forth for notices to the Company in Section 5.6 and (ii) the Investor in accordance with federal 

law. To the extent permitted by applicable law, each of the parties hereto hereby unconditionally 

waives trial by jury in any legal action or proceeding relating to this Agreement or the 

transactions contemplated hereby. 

5.6 Notices. Any notice, request, instruction or other document to be given hereunder 

by any party to the other will be in writing and will be deemed to have been duly given (a) on the 

date of delivery if delivered personally, or by facsimile, upon confirmation of receipt, or (b) on 

the second business day following the date of dispatch if delivered by a recognized next day 

courier service. All notices to the Company shall be delivered to the address set forth below, or 

pursuant to such other instruction as may be designated in writing by the Company to the 

Investor. All notices to the Investor shall be delivered as set forth below, or pursuant to such 

other instructions as may be designated in writing by the Investor to the Company. 

If to the Investor: 

United States Department of the Treasury 

1500 Pennsylvania Avenue, NW 

Washington, DC 20220 

Attention: Chief Counsel, Office of Financial Stability 

Telecopy: (202) 927-9225 

Email: ofschiefcounselnotices@do.treas.gov

TARP.Compliance@do.treas.gov
35 

If to the Company: 

American International Group, Inc. 

70 Pine Street, New York, New York 10270 

Attention: General Counsel 

Facsimile: (212) 785-2175 

Telephone: (212) 770-7000 

with a copy to: 

Sullivan & Cromwell LLP 

125 Broad Street, New York, New York 10004 

Attention: Robert W. Reeder III, Michael M. Wiseman 

Telephone: (212) 558-4000 

5.7 Definitions.

(a) When a reference is made in this Agreement to a subsidiary of a person, the term 

“subsidiary” means any corporation, partnership, joint venture, limited liability company or 

other entity (x) of which such person or a subsidiary of such person is a general partner or (y) of 

which a majority of the voting securities or other voting interests, or a majority of the securities 

or other interests of which having by their terms ordinary voting power to elect a majority of the 

board of directors or persons performing similar functions with respect to such entity, is directly 

or indirectly owned by such person and/or one or more subsidiaries thereof; provided that no 

Fund shall be a subsidiary for purposes of this Agreement. 

(b) The term “Fund” means any investment vehicle managed by the Company or an 

Affiliate of the Company and created in the ordinary course of the Company’s asset management 

business for the purpose of selling Equity Interests in such investment vehicle to third parties. 

“Equity Interests” means shares of capital stock, partnership interests, membership interests in a 

limited liability company, beneficial interests in a trust or other equity interests in any entity, and 

any option, warrant or other right entitling the holder thereof to purchase or otherwise acquire 

any such equity interest. 

(c) The term “Affiliate” means, with respect to any person, any person directly or 

indirectly controlling, controlled by or under common control with, such other person. For 

purposes of this definition, “control” (including, with correlative meanings, the terms “controlled 

by” and “under common control with”) when used with respect to any person, means the 

possession, directly or indirectly, of the power to cause the direction of management and/or 

policies of such person, whether through the ownership of voting securities by contract or 

otherwise. 

5.8 Assignment. Neither this Agreement nor any right, remedy, obligation nor 

liability arising hereunder or by reason hereof shall be assignable by any party hereto without the 

prior written consent of the other party, and any attempt to assign any right, remedy, obligation 
36 

or liability hereunder without such consent shall be void, except (a) an assignment, in the case of 

a Business Combination, as defined below, where such party is not the surviving entity, or a sale 

of substantially all of its assets, to the entity which is the survivor of such Business Combination 

or the purchaser in such sale and (b) as provided in Section 4.5. “Business Combination” 

means merger, consolidation, statutory share exchange or similar transaction that requires the 

approval of the Company’s stockholders. 

5.9 Severability. If any provision of this Agreement, or the application thereof to any 

person or circumstance, is determined by a court of competent jurisdiction to be invalid, void or 

unenforceable, the remaining provisions hereof, or the application of such provision to persons 

or circumstances other than those as to which it has been held invalid or unenforceable, will 

remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, 

so long as the economic or legal substance of the transactions contemplated hereby is not 

affected in any manner materially adverse to any party. Upon such determination, the parties 

shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute 

provision to effect the original intent of the parties. 

5.10 Entire Agreement. This Agreement (including the Annexes and Schedules hereto) 

constitutes the entire agreement, and supersedes all other prior agreements, understandings, 

representations and warranties, both written and oral, between the parties, with respect to the 

subject matter hereof. 

5.11 No Third Party Beneficiaries. Nothing contained in this Agreement, expressed or 

implied, is intended to confer upon any person or entity other than the Company and the Investor 

any benefit, right or remedies, except that the provisions of Section 4.5 shall inure to the benefit 

of the persons referred to in that Section. 

5.12 Survival of Series D Preferred Stock Purchase Agreement. Except for Sections 

4.8, 4.10 (except to the extent provided in Section 4.9(g) herein) and 4.13 of the Series D 

Preferred Stock Purchase Agreement, which sections shall no longer be applicable following the 

Exchange, the remaining provisions of the Series D Preferred Stock Purchase Agreement shall 

remain in full force and effect in accordance with their terms following the Exchange.

[Signature Page Follows] 
In witness whereof, this Agreement has been duly executed and delivered by the duly 

authorized representatives of the parties hereto as of the date written below. 

AMERICAN INTERNATIONAL 

GROUP, INC. 

By: /s/ Anastasia D. Kelly 

Name: Anastasia D. Kelly 

Title: Vice Chairman 

UNITED STATES DEPARTMENT OF 

THE TREASURY 

By: /s/ Neel Kashkari 

Name: Neel Kashkari 

Title: Interim Assistant Secretary 

for Financial Stability 

Date: April 17, 2009