Exhibit 1.01
___,000,000 SECURITIES
CITIGROUP CAPITAL _____
___% Enhanced Trust Preferred Securities (Enhanced TRUPS(R))
$25 Liquidation Amount
Guaranteed to the extent set forth in the
Prospectus dated _______, 2006 by
CITIGROUP INC.
UNDERWRITING AGREEMENT
New York, New York
_______, 2006
__________,
as Representatives of the several Underwriters
c/o __________
New York, New York __________
Ladies and Gentlemen:
Citigroup Capital _______ (the "Trust"), a statutory trust organized
under the Statutory Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C. Section 3801 et
seq.), proposes, upon the terms and conditions set forth herein, to issue and
sell ___,000,000 ___% Enhanced Trust Preferred Securities (Enhanced TRUPS(R))
with an aggregate liquidation amount equal to $___,000,000 (the "Underwritten
Securities") to the several Underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives. The Trust also proposes to grant the Underwriters an option to
purchase ___ additional ___% Enhanced Trust Preferred Securities (Enhanced
TRUPS(R)) to cover over-allotments (the "Option Securities" and, together with
the Underwritten Securities, the "Capital Securities").
The Capital Securities and the Common Securities (as defined herein)
are to be issued pursuant to the terms of a declaration of trust, dated as of
_______, 2006 (the "Declaration"), among Citigroup Inc., a Delaware corporation
(the "Company" and, together with the Trust, the "Offerors"), as sponsor, the
trustees named therein (the "Citigroup Capital Trustees") and the holders from
time to time of undivided beneficial interests in the assets of the Trust. The
Declaration is qualified as an indenture under the Trust Indenture Act. Pursuant
to the Declaration, the number of Citigroup Capital Trustees will initially be
five. Three of the
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Citigroup Capital Trustees (the "Regular Trustees") will be persons who are
employees or officers of the Company. The fourth Citigroup Capital Trustee will
be a financial institution unaffiliated with the Company that will serve as
property trustee under the Declaration and as indenture trustee with respect to
the Capital Securities for purposes of the Trust Indenture Act (the
"Institutional Trustee"). The fifth Citigroup Capital Trustee will be a
financial institution or an affiliate thereof which maintains a principal place
of business in the State of Delaware, meeting the requirements of the Delaware
Act (the "Delaware Trustee"). Initially, JPMorgan Chase Bank, N.A., a New York
banking association ("JPMorgan Chase"), will act as the Institutional Trustee
and Chase Manhattan Bank USA, N.A., a banking association with its principal
place of business in the State of Delaware, will act as the Delaware Trustee
until removed or replaced by the holder of the Common Securities. The Capital
Securities will be guaranteed by the Company on a subordinated basis with
respect to distributions and payments upon liquidation, redemption or otherwise
(the "Guarantee") pursuant to the Capital Securities Guarantee Agreement dated
as of _______, 2006 (the "Guarantee Agreement") between the Company and JPMorgan
Chase, as Trustee (the "Guarantee Trustee").
The assets of the Trust will consist of ___% Deferrable Junior
Subordinated Debentures due _______, 2066 (the "Subordinated Debentures") of the
Company which will be issued under an indenture, dated as of _______, 2006 (as
supplemented, the "Indenture"), between the Company and JPMorgan Chase, as
Trustee (the "Indenture Trustee"). Under certain circumstances, the Subordinated
Debentures will be distributable to the holders of undivided beneficial
interests in the assets of the Trust. The Capital Securities, the Guarantee and
the Subordinated Debentures are referred to herein as the "Securities."
The Offerors wish to confirm as follows their agreement with you and
the other several Underwriters listed on Schedule I on whose behalf you are
acting, in connection with the several purchases of the Capital Securities by
the Underwriters. To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context requires. Any reference herein to
the Registration Statement, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act
on or before the Effective Date of the Registration Statement or the issue date
of any Preliminary Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement or
the issue date of any Preliminary Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 21 hereof.
1. Registration Statement and Prospectus. The Offerors meet the
requirements for use of Form S-3 under the Act and have prepared and filed with
the Commission an automatic shelf registration statement, as defined in Rule 405
(File No. 333-____), including a related form of prospectus, for registration
under the Act of the offering and sale of the Securities. Such Registration
Statement, including any amendments thereto filed prior to the date hereof,
became effective upon filing. The Offerors may have filed with the Commission,
as
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part of an amendment to the Registration Statement or pursuant to Rule 424(b),
one or more preliminary prospectuses relating to the Securities, each of which
has previously been furnished to you. The Company will file with the Commission
a final prospectus relating to the Securities in accordance with Rule 424(b). As
filed, such final prospectus shall contain all information required by the Act
and the rules thereunder, and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the date hereof or, to the extent not completed
by the date hereof, shall contain only such specific additional information and
other changes (beyond that contained in any preliminary prospectus) as the
Company has advised you, prior to the date hereof, will be included or made
therein. The Registration Statement, as of the date hereof, meets the
requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the
Registration Statement was not earlier than the date three years before the date
hereof.
2. Agreements to Sell and Purchase. (a) The Trust hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Offerors herein contained and subject to all the terms and
conditions set forth herein each Underwriter agrees, severally and not jointly,
to purchase from the Trust, at a purchase price of $25 per Capital Security, the
number of Underwritten Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Capital Securities increased
as set forth in Section 10 hereof).
The Company agrees that, in view of the fact that the proceeds of the
sale of the Underwritten Securities will be invested in the Subordinated
Debentures, it shall pay to the Underwriters as compensation ("Underwriters'
Compensation") for their arranging the investment of the proceeds therein, on
the Closing Date (as defined herein), $0.___ per Underwritten Security;
provided, however, that with respect to sales made by the Underwriters to
certain institutional purchasers (the "Institutional Purchasers"), the Company
agrees to pay Underwriters' Compensation of $0.___ per Underwritten Security.
The Representatives confirm to the Offerors that for this purpose, the number of
Underwritten Securities sold to Institutional Purchasers is _____.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Trust hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
_____ Option Securities at the same purchase price per share as the Underwriters
shall pay for the Underwritten Securities. Said option may be exercised in whole
or in part at any time (but not more than once) on or before the 15th day after
the date of the initial public offering, upon written or facsimile notice by the
Representatives to the Trust setting forth the number of Option Securities as to
which the several Underwriters are exercising the option and the date on which
delivery and payment shall occur, which shall not be less than three Business
Days after the date of the notice of exercise. The number of Option Securities
to be purchased by each Underwriter shall be the same percentage of the total
number of Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as the Representatives, in their absolute discretion, shall make to
eliminate any fractional shares.
3. Terms of Public Offering. The Offerors have been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Capital
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Securities as soon as the Underwriters deem advisable after the Registration
Statement has become effective, this Agreement has been executed and delivered,
and the Declaration, the Guarantee Agreement and the Indenture have been
qualified under the Trust Indenture Act. The entire proceeds from the sale of
the Capital Securities will be combined with the entire proceeds from the sale
by the Trust to the Company of its common securities (the "Common Securities"),
and will be used by the Trust to purchase an equivalent amount of the
Subordinated Debentures.
4. Delivery of the Capital Securities and Payment Therefore. Delivery
to the Underwriters of, and payment for, the Capital Securities shall be made at
the office of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, Xxx Xxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, at 8:30 A.M., New York City time, on _______, 2006 (the "Closing
Date"). Delivery to the Underwriters of, and payment for, the Optional
Securities (if the option provided for in Section 2(b) hereof is exercised)
shall be made on the date and at the time specified in the notice of exercise of
the option, which shall not be less than three Business Days after the date of
the notice. The place of closing for the Capital Securities and the Closing Date
may be varied by agreement between you and the Company.
Delivery of the Capital Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters directly or through the Representatives of
the net purchase price thereof to or upon the order of the Trust by wire
transfer payable in same-day funds to an account specified by the Trust.
Delivery of the Capital Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
It is understood that the Representatives, acting individually and not
in a representative capacity, may (but shall not be obligated to) make payment
to the Company on behalf of any other Underwriter for Capital Securities to be
purchased by such Underwriter. Any such payment by the Representatives shall not
relieve any such Underwriter of any of its obligations hereunder.
The Company shall pay to the Representatives on the Closing Date for
the accounts of the Underwriters any fee, commission or other compensation
specified herein. Such payment will be made by wire transfer payable in same-day
funds to an account specified by the Representatives.
5. Agreements of the Offerors. The Offerors jointly and severally
agree with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Offerors will not file any amendment of the Registration Statement or
supplement to any Preliminary Prospectus or the Final Prospectus unless the
Company has furnished the Representatives a copy for their review prior to
filing and will not file any such proposed amendment or supplement to which
they reasonably object. The Offerors will cause the Final Prospectus,
properly completed, and any supplement thereto, to be filed in a form
approved by the Representatives with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly
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advise the Representatives (1) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b), (2) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (3) of any request by the Commission or its
staff for any amendment of the Registration Statement, or for any
supplement to the Final Prospectus or for any additional information, (4)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice objecting to
its use or the institution or threatening of any proceeding for that
purpose and (5) of the receipt by the Offerors of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the institution or threatening of any proceeding for
such purpose. The Offerors will use its best efforts to prevent the
issuance of any such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such issuance,
occurrence or notice of objection, to obtain as soon as possible the
withdrawal of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration
Statement or a new registration statement and using its best efforts to
have such amendment or new registration statement declared effective as
soon as practicable.
(b) The Offerors will prepare a final term sheet, containing solely a
description of final terms of the Capital Securities and the offering
thereof, in a form approved by you (the "Final Term Sheet") and to file
such term sheet pursuant to Rule 433(d) within the time required by such
Rule.
(c) If, at any time prior to the filing of the Final Prospectus
pursuant to Rule 424(b), any event occurs as a result of which the
Disclosure Package would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein in
the light of the circumstances under which they were made at such time not
misleading, the Offerors will (1) notify promptly the Representatives so
that any use of the Disclosure Package may cease until it is amended or
supplemented; (2) amend or supplement the Disclosure Package to correct
such statement or omission; and (3) supply any amendment or supplement to
you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Capital
Securities is required to be delivered under the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule
172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, or if
it shall be necessary to amend the Registration Statement, file a new
registration statement or supplement the Final Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, including
in connection with use or delivery of the Final Prospectus, the Company
promptly will (i) notify the Representatives of such event, (ii) prepare
and file with the Commission, subject to the second sentence of paragraph
(a) of this Section 5, an amendment or supplement or new registration
statement which will correct such statement or omission or effect such
compliance, (iii) use its best efforts to
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have any amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to avoid any
disruption in use of the Final Prospectus and (iv) supply any supplemented
Final Prospectus to the Representatives in such quantities as the
Representatives may reasonably request.
(e) As soon as practicable, but in any event not later than 16 months
after the Closing Date, the Offerers will make generally available to the
Trust's security holders and the Representatives a consolidated earnings
statement, which need not be audited, of the Company covering a period of
at least 12 months beginning after the Closing Date and otherwise
satisfying Section 11(a) of the Act.
(f) Upon request, the Offerors will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), as many copies of any Preliminary
Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and
any supplement thereto as the Representatives may reasonably request. The
Offerors will pay the expenses of printing or other production of all
documents relating to the offering that are required to be prepared,
furnished or delivered by the Offerors.
(g) The Offerors will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives reasonably may designate, will maintain such qualifications
in effect so long as required for the distribution of the Securities and
will pay any fee of the National Association of Securities Dealers, Inc.,
in connection with its review of the offering; provided that in no event
shall either of the Offerors be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where it
is not now so subject.
(h) (i) Each Offeror agrees that, unless it has obtained or will
obtain, as the case may be, the prior written consent of the
Representatives, and (ii) each Underwriter, severally and not jointly,
agrees with the Offerors that, unless it has obtained or will obtain, as
the case may be, the prior written consent of the Offerors, it has not made
and will not make any offer relating to the Capital Securities that would
constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a "free writing prospectus" (as defined in Rule 405) required to
be filed by the Offerors with the Commission or retained by the Offerors
under Rule 433, other than the Final Term Sheet described above or other
free writing prospectuses containing solely a description of the final
terms of the Capital Securities and the offering thereof. Any such free
writing prospectus consented to by the Representatives or the Offerors is
hereinafter referred to as a "Permitted Free Writing Prospectus." Each
Offeror agrees that (x) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus
and (y) it has complied and will comply, as the case may be, with the
requirements of Rules
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164 and 433 applicable to any Permitted Free Writing Prospectus, including
in respect of timely filing with the Commission, legending and record
keeping.
(i) The Offerors will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company, the Trust or any affiliate of the Company or
the Trust or any person in privity with the Company, the Trust or any
affiliate of the Company or the Trust) directly or indirectly, including
the filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any preferred
securities, any preferred stock or any other securities including any
guarantee of such securities (other than a guarantee of securities issued
by Citigroup Funding Inc.), of the Offerors, in each case that are
substantially similar to the Capital Securities or any security convertible
into or exchangeable for the Capital Securities or such substantially
similar securities, or publicly announce an intention to effect any such
transaction, during the period beginning the date of hereof and ending 60
days after the Closing Date.
(j) The Trust will apply the net proceeds from the sale of the Capital
Securities, and the Company will apply the net proceeds from the sale of
the Subordinated Debentures, substantially in accordance with the
description set forth in the Final Prospectus.
(k) The Company will comply with all applicable securities and other
laws, rules and regulations, including, without limitation, the Sarbanes
Oxley Act of 2002, and use its best efforts to cause the Company's
directors and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the Sarbanes Oxley Act of 2002.
(l) The Offerors will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of either of the Offerors to
facilitate the sale or resale of the Capital Securities, except that the
Offerors makes no agreement as to the activities of any Underwriter.
6. Representations and Warranties of the Offerors. The Offerors
jointly and severally represent and warrant to, and agree with, each Underwriter
that:
(a) On each Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed in accordance with Rule 424(b) and on
the Closing Date, the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on each Effective Date and on the date hereof, the Registration
Statement did not and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to
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make the statements therein not misleading; and on the Effective Date and
on the Closing Date, the Indenture and the Declaration did or will comply
in all material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Final Prospectus (together with
any supplement thereto) will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Offerors make no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Citigroup
Capital Trustees or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
the Offerors by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto), it being understood and agreed that
the only such information furnished by or on behalf of any Underwriters
consists of the information described as such in Section 7 hereof.
(b) The execution and delivery of, and the performance by the Company
and the Trust of their respective obligations under, this Agreement have
been duly and validly authorized by the Company and the Trust,
respectively, and this Agreement has been duly executed and delivered by
the Company and the Trust.
(c) The Capital Securities have been duly and validly authorized by
the Declaration and, when executed by the Trust and authenticated by the
Institutional Trustee in accordance with the Declaration and delivered to
you against payment therefore in accordance with the terms hereof, will be
validly issued and (subject to Sections [9.8 and 3.10(a)(vi)] of the
Declaration) will be fully paid and non-assessable undivided beneficial
interests in the assets of the Trust, will be entitled to the benefits of
the Declaration and will conform in all material respects to all statements
relating thereto contained in the Registration Statement, the Disclosure
Package and the Final Prospectus, and any amendment or supplement thereto;
the issuance of the Capital Securities is not subject to preemptive or
other similar rights; holders of Capital Securities will be entitled to the
same limitation of personal liability extended to stockholders of private
corporations for profit under the General Corporation Law of the State of
Delaware; and the Capital Securities have been registered under the
Exchange Act and authorization for listing the Capital Securities on the
New York Stock Exchange has been given, subject to notice of official
issuance.
(d) The Declaration has been duly and validly authorized by the
Company and, at the Closing Date, will have been duly executed and
delivered by the Company and the Regular Trustees, and assuming due
execution and delivery by the Institutional Trustee and the Delaware
Trustee, the Declaration will be a valid and legally binding obligation of
the Company and the Regular Trustees, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
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and the Declaration has been (or will have been) duly qualified under the
Trust Indenture Act and conforms in all material respects to the
description thereof in the Registration Statement, the Disclosure Package
and the Final Prospectus, and any amendment or supplement thereto.
(e) The Guarantee has been duly and validly authorized by the Company
and, at the Closing Date, will have been duly executed and delivered by the
Company, and assuming due execution and delivery by the Guarantee Trustee,
the Guarantee will be a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws
affecting creditors' rights generally and general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity); and the Guarantee has been (or will have been) duly
qualified under the Trust Indenture Act and conforms in all material
respects to the description thereof in the Registration Statement, the
Disclosure Package and the Prospectus, and any amendment or supplement
thereto.
(f) The Indenture has been duly and validly authorized by the Company
and, at the Closing Date, will have been duly executed and delivered by the
Company, and assuming due execution and delivery by the Indenture Trustee,
the Indenture will be a valid and binding obligation of the Company,
enforceable in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity);
and the Indenture has been (or will have been) duly qualified under the
Trust Indenture Act and conforms in all material respects to the
description thereof in the Registration Statement, the Disclosure Package
and the Final Prospectus, and any amendment or supplement thereto.
(g) The Subordinated Debentures have been duly and validly authorized
by the Company and, when authenticated by the Indenture Trustee in the
manner provided for in the Indenture and issued in accordance with the
Indenture and delivered to the Trust against payment therefore as described
in the Registration Statement, the Disclosure Package and the Final
Prospectus, and any amendment or supplement thereto, will be valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally, and
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture and conform
in all material respects to the description thereof in the Registration
Statement, the Disclosure Package and the Final Prospectus, and any
amendment or supplement thereto.
(h) The Trust has been duly created and is validly existing and in
good standing as a statutory trust under the Delaware Act with the power
and authority to own property and to conduct its business as described in
the Registration Statement and Final Prospectus, and any amendment or
supplement thereto, and to enter into and perform its
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obligations under this Agreement, the Capital Securities and the
Declaration and is not required to be authorized to do business in any
other jurisdiction; the Trust is not a party to or otherwise bound by any
agreement other than those described in the Final Prospectus, and any
amendment or supplement thereto; the Trust will be classified as a grantor
trust and not as an association taxable as a corporation for U.S. federal
income tax purposes; and the Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles.
(i) The Regular Trustees of the Trust are officers of the Company and
have been duly authorized by the Company to execute and deliver the
Declaration.
(j) Neither the Trust nor the Company is now, nor after giving effect
to the transactions contemplated hereby will be, and neither the Trust nor
the Company is controlled by, or acting on behalf of any person which is,
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(k) As of the date hereof, the Disclosure Package does not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure
Package based upon and in conformity with written information furnished to
the Offerors by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 7 hereof.
(l) (i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Sections 13
or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Offerors or any person acting on their behalf (within the meaning, for this
clause only, of Rule 163(c)) made any offer relating to the Capital
Securities in reliance on the exemption in Rule 163 and (iv) on the date
hereof (with such date being used as the determination date for purposes of
this clause (iv)), each of the Offerors was or is (as the case may be) a
"well-known seasoned issuer" as defined in Rule 405. The Offerors agree to
pay the fees required by the Commission relating to the Capital Securities
within the time required by Rule 456(b)(1) without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and 457(r).
(m) (i) At the earliest time after the filing of the Registration
Statement that the Offerors or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the Capital Securities
and (ii) as of the date hereof (with such date being used as the
determination date for purposes of this clause (ii)), neither of the
Offerors was or is an Ineligible Issuer (as defined in Rule 405), without
taking account of any determination by the Commission pursuant to Rule 405
that it is not necessary that the Offerors be considered an Ineligible
Issuers.
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(n) Neither any Issuer Free Writing Prospectus nor the Final Term
Sheet includes any information that conflicts with the information
contained in the Registration Statement, including any document
incorporated therein and any prospectus supplement deemed to be a part
thereof that has not been superseded or modified. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free Writing
Prospectus nor the Final Term Sheet based upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 7
hereof.
Any certificate signed by any officer of the Company or trustee of the
Trust and delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Capital Securities shall be deemed a
representation and warranty by either the Company or the Trust, as the case may
be, as to matters covered thereby, to each Underwriter.
7. Indemnification and Contribution.
(a) Each of the Trust and the Company jointly and severally agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Capital
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus, the Final Prospectus, the Disclosure Package, any
Issuer Free Writing Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
neither the Company nor the Trust will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Offerors by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which either the Company or the Trust may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless each of the Company, the Trust, the Company's directors, the
Company's officers and the Regular Trustees who sign the Registration
Statement, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, to
11
the same extent as the foregoing indemnity from the Company and the Trust
to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Offerors by or on behalf of
such Underwriter through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability that any Underwriter may
otherwise have. The Offerors acknowledge that the statements set forth in
the last paragraph of the cover page regarding delivery of the Capital
Securities and, under the heading "Underwriting", (i) the list of
Underwriters and their respective participation in the sale of the Capital
Securities, (ii) the sentences related to concessions and reallowances and
(iii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Prospectus, the Final
Prospectus and any Issuer Free Writing Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Final
Prospectus and any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or
12
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Trust and the
Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Company, the Trust and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Trust on the one hand
and by the Underwriters on the other from the offering of the Capital
Securities; provided, however, that in no case shall (i) any Underwriter
(except as may be provided in any agreement among underwriters relating to
the offering of the Capital Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Capital
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company, the Trust and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Trust
on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and the
Trust shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by the Trust, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company and the Trust
on the one hand or the Underwriters on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company, the
Trust and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer, employee
and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Company, as applicable,
within the meaning of either the Act or the Exchange Act, each officer of
the Company and the Regular Trustees who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company and the Trust, subject in each case to the
applicable terms and conditions of this paragraph (d).
13
8. Conditions of the Underwriters' Obligations. The obligations of the
several Underwriters to purchase the Capital Securities shall be subject to the
accuracy of the representations and warranties on the part of the Offerors
contained herein as of the date hereof and the Closing Date, to the accuracy of
the statements of the Offerors made in any certificates pursuant to the
provisions hereof, to the performance by each of the Offerors of its obligations
hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed
in the manner and within the time period required by Rule 424(b); the Final
Term Sheet contemplated by Section 5(b) hereto, and any other material
required to be filed by the Offerors pursuant to Rule 433(d) under the Act,
shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; and no stop order
suspending the effectiveness of the Registration Statement or any notice
objecting to its use shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Offerors shall have requested and caused Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, special counsel to the Offerors, to have furnished to
the Representatives an opinion, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Capital
Securities, the Indenture, the Subordinated Debentures, the Declaration,
the Registration Statement, the Disclosure Package, the Final Prospectus
(together with any amendment thereto) and other related matters as the
Representatives may reasonably require. Insofar as such opinion involves
factual matters, such counsel may rely, to the extent such counsel deems
proper, upon certificates of officers of the Company, its subsidiaries and
the Trust and certificates of public officials.
(c) The Offerors shall have requested and caused Xxxxxxx X. Xxxxxxx,
General Counsel, Finance and Capital Markets of the Company, to have
furnished to the Representatives an opinion, dated the Closing Date and
addressed to the Representatives, with respect to the issuance and sale of
the Capital Securities, the Indenture, the Subordinated Debentures, the
Declaration, the Registration Statement, the Disclosure Package, the Final
Prospectus (together with any amendment thereto) and other related matters
as the Representatives may reasonably require.
(d) The Offerors shall have requested and caused Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, special tax counsel to the Offerors, to have furnished
to the Representatives an opinion, dated the Closing Date and addressed to
the Representatives, with respect to certain United States federal income
tax matter related to the Trust and the Subordinated Debentures and other
related matters as the Representatives may reasonably require.
(e) The Offerors shall have requested and caused [Xxxxx Xxxxxxx
Xxxxxxx & Xxxxx LLP,] counsel to JPMorgan Chase, to have furnished to the
Representatives an opinion or opinions, dated the Closing Date and
addressed to the Representatives, with respect to the Institutional
Trustee, the Delaware Trustee, the issuance and sale of the
14
Capital Securities and other related matters as the Representatives may
reasonably require.
(f) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx
& Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect
to the issuance and sale of the Capital Securities, the Subordinated
Debentures, the Indenture, the Declaration, the Registration Statement, the
Disclosure Package, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Offerors shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(g) The Company shall have furnished to the Representatives a
certificate of the Company and the Trust, signed, in the case of the
Company, by the Chairman, any Vice Chairman, the President, any Vice
President, the Chief Financial Officer, the Chief Accounting Officer, the
General Counsel, the Controller or any Deputy Controller and by the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company and, in the case of the Trust, signed by one of
the Regular Trustees, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus, the Disclosure Package and any supplements
or amendments thereto, and this Agreement and that:
(i) the representations and warranties of each of the Company and
the Trust in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date and
each of the Company and the Trust has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use has been
issued and no proceedings for that purpose have been instituted or, to
their knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
including the Trust taken as a whole, or the Trust, as the case may
be, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement
thereto).
(h) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives, on and as of the date hereof and on and
as of the Closing Date, customary "comfort letters" that are satisfactory
in content and form to the Representatives.
15
(i) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof), any Preliminary Prospectus and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 8 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, including the Trust, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives after consultation with the Company, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Capital Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof), the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto) and
any Issuer Free Writing Prospectus.
(j) Subsequent to the date hereof, there shall not have been any
decrease in the rating of the Capital Securities or any of the Company's
senior or subordinated debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act) or any notice given of any intended or potential decrease in
any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(k) The Capital Securities shall have been registered under the
Exchange Act and shall have been listed or approved for listing, upon
notice of issuance, on the New York Stock Exchange.
(l) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 8 shall not have
been fulfilled when and as provided in this Agreement with respect to the
offering of the Capital Securities, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled with respect to such offering at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be given
to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 8 shall be
delivered at the office of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
9. Expenses. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it and
by the Trust of its and the
16
Trust's respective and joint obligations hereunder: (i) the preparation,
printing or reproduction, and filing with the Commission of the Registration
Statement (including financial statements and exhibits thereto), any Preliminary
Prospectus and the Final Prospectus (including filing fees), each amendment or
supplement to any of them, this Agreement, the Declaration, the Guarantee, the
Indenture and the Statement of Eligibility and Qualification of each of the
Institutional Trustee, the Guarantee Trustee and the Indenture Trustee; (ii) the
printing (or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, any Preliminary Prospectus, the Final Prospectus, the documents
incorporated by reference in the Registration Statement, and all amendments or
supplements to any of them, as may be reasonably requested for use in connection
with the offering and sale of the Capital Securities; (iii) the preparation,
printing (or reproduction), execution and delivery of the Declaration, the
Guarantee and the Indenture and the preparation, printing, authentication,
issuance and delivery of the Securities, including any stamp taxes in connection
with the original issuance and sale of the Capital Securities; (iv) the printing
(or reproduction) and delivery of this Agreement and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Capital Securities; (v) the registration of the Securities under the
Exchange Act and the listing of the Capital Securities on the New York Stock
Exchange; (vi) the registration or qualification of the Securities for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing (or
reproduction), and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the filing fees and
the reasonable fees and expenses of counsel for the Underwriters in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc.; (viii) the fees and expenses of the Institutional Trustee, the
Delaware Trustee, the Guarantee Trustee and the Indenture Trustee; (ix) the fees
and expenses associated with obtaining ratings for the Capital Securities from
nationally recognized statistical rating organizations; (x) the transportation
and other expenses incurred by or on behalf of representatives of the Offerors
(other than the Underwriters and their representatives) in connection with
presentations to prospective purchasers of the Capital Securities; and (xi) the
fees and expenses of the Company's accountants and the fees and expenses of
counsel (including local and special counsel) for the Offerors.
10. Reimbursement of Underwriters' Expenses. If the sale of the
Capital Securities provided for herein is not consummated because any condition
to the obligations of the Offerors set forth in Section 8 hereof is not
satisfied, because of any termination pursuant to Section 11 hereof or because
of any refusal, inability or failure on the part of the Offerors to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Capital Securities.
11. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Capital Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
17
severally to take up and pay for (in the respective proportions which the
principal amount of Capital Securities set forth opposite their names in
Schedule I hereto bears to the aggregate principal amount of Capital Securities
set forth opposite the names of all the remaining Underwriters) the Capital
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Capital Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount
of Capital Securities set forth in Schedule I hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Capital Securities, and if such nondefaulting Underwriters
do not purchase all the Capital Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Offerors. In the event
of a default by any Underwriter as set forth in this Section 11, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as
the Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Offerors and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
12. Termination of Agreement. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Offerors prior to delivery of and payment for the Capital Securities, if
at any time prior to such time (i) trading in the Company's Common Stock shall
have been suspended by the Commission or the New York Stock Exchange, or trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives after consultation with
the Offerors, impractical or inadvisable to proceed with the offering or
delivery of the Capital Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
13. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Trust, the Company or its officers or trustees and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Trust or the Company or any of the officers, directors, trustees, employees,
agents or controlling persons referred to in Section 7 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 7 and 10
hereof shall survive the termination or cancellation of this Agreement.
14. Notices. All communications hereunder will be in writing and
effective only on receipt, and will be mailed, delivered or telefaxed if to
_____, as Representatives of the several Underwriters, to _____ (fax no.: (212)
________) Attention: General Counsel, and if to the Company, or to the Trust
care of the Company, at the office of the Company at 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, Finance and Capital
Markets (fax no.: (000) 000-0000).
18
15. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, trustees, employees, agents and controlling persons
referred to in Section 7 hereof, and no other person will have any right or
obligation hereunder.
16. No Fiduciary Duty. The Offerors hereby acknowledge that (i) the
purchase and sale of the Capital Securities pursuant to this Agreement is an
arm's-length commercial transaction between the Company and the Trust, on the
one hand, and the Underwriters and any affiliate through which it may be acting,
on the other, (ii) the Underwriters are acting as principal and not as an agent
or fiduciary of the Offerors and (iii) the Trust's engagement of the
Underwriters in connection with the offering and the process leading up to the
offering is as independent contractors and not in any other capacity.
Furthermore, each Offeror agrees that it is solely responsible for making its
own judgments in connection with the offering (irrespective of whether any of
the Underwriters has advised or is currently advising either Offeror on related
or other matters. Each Offeror agrees that it will not claim that the
Underwriters have rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the it, in connection with such transaction
or the process leading thereto.
17. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) among the Offerors and the
Underwriters, or any of them, with respect to the subject matter hereof.
18. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
19. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
20. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
21. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Disclosure Package" shall mean (i) the Preliminary Prospectus, if
any, used most recently prior to the date hereof, (ii) the Final Term Sheet
described in Section 5(b) and
19
(iii) any Free Writing Prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto became or
become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the date
hereof.
"Free Writing Prospectus" shall mean a free writing prospectus, as
defined in Rule 405.
"Issuer Free Writing Prospectus" shall mean an issuer free writing
prospectus, as defined in Rule 433.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement which is used prior to filing of the Final Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements and any prospectus supplement relating to the Securities that is
filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each Effective
Date and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date, shall also mean such registration
statement as so amended.
"Rule 163", "Rule 164", "Rule 172", "Rule 405", "Rule 415", "Rule
424", "Rule 430B" and "Rule 433" refer to such rules under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
"Well-Known Seasoned Issuer" shall mean a well-known seasoned issuer,
as defined in Rule 405.
20
Please confirm that the foregoing correctly sets forth the agreement among
the Trust, the Company and the several Underwriters.
Very truly yours,
CITIGROUP CAPITAL _____
By:
------------------------------------
as Regular Trustee
CITIGROUP INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
21
Confirmed as of the date first above
mentioned on behalf of themselves and
the other several Underwriters named
in Schedule I hereto.
__________,
as Representatives of the several
Underwriters
By:
---------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
22
SCHEDULE I
CITIGROUP CAPITAL _____
___.00% Enhanced Trust Preferred Securities (Enhanced TRUPS(R))
NUMBER OF CAPITAL
UNDERWRITERS SECURITIES
------------ -----------------
