Depositary Shares Each Representing a 1/1,000th Interest in a Share of 8.125% Non-Cumulative Preferred Stock, Series AA ($1.00 par value) CITIGROUP INC. UNDERWRITING AGREEMENT
Exhibit 1.02
Depositary Shares
Each Representing a 1/1,000th Interest in a Share of
8.125% Non-Cumulative Preferred Stock, Series AA
($1.00 par value)
Each Representing a 1/1,000th Interest in a Share of
8.125% Non-Cumulative Preferred Stock, Series AA
($1.00 par value)
Citigroup Global Markets Inc.
as Representative of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Citigroup Inc., a corporation organized under the laws of Delaware (the “Company”), proposes,
upon the terms and conditions set forth herein, to issue and sell 130,000,000 depositary shares
(the “Depositary Shares”), each representing a 1/1,000th interest in a share of
perpetual 8.125% Non-Cumulative Preferred Stock, Series AA (the “Preferred Stock”), of the Company
(the “Underwritten Securities”) to the several Underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the “Representative”) are acting as representative. The Company
also proposes to grant the Underwriters an option to purchase 19,500,000 additional Depositary
Shares to cover over-allotments (the “Option Securities” and, together with the Underwritten
Securities, the “Securities”). The Preferred Stock shall have the rights, powers and preferences
set forth in the certificate of designation dated January 23, 2008 relating thereto (the
“Certificate of Designation”). The shares of Preferred Stock represented by the Securities are to
be deposited by the Company against delivery of depositary receipts evidencing Depositary Shares
(the “Depositary Receipts”) that are to be issued by The Bank of New York, as Depositary (the
“Depositary”), under a Deposit Agreement, to be dated as of January 23, 2008 (the “Deposit
Agreement”), among the Company, the Depositary and the holders from time to time of the Depositary
Receipts issued thereunder.
The Company wishes to confirm as follows its 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 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,
the Base Prospectus, 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 the Base Prospectus, 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, the Base Prospectus, 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 the Base Prospectus, 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 Company meets the requirements for use
of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 (File No. 333-132177), including a related Base
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 Company may have filed with the Commission, as 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 Representative 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 the Base Prospectus and 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 Company 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 Company herein contained and subject to all
the terms and conditions set forth herein each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $24.2125 per Security, provided, however, that
with respect to sales made by the Underwriters to certain certain institutional purchasers, the
purchase price instead shall be $24.5000 per Security. The Representative confirms to the Company
that for this purpose the number of Underwritten Securities sold to such institutional purchasers
is 66,200,000, the number of Underwritten Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Securities increased as set forth in Section 11
hereof).
Subject to the terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to 19,500,000 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 or from time to time on or before the 30th day after the
date of the Final Prospectus, upon written or facsimile notice by the Representative to the Company
setting forth the number of Option Securities as to which the several Underwriters are
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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 Representative, in its absolute
discretion, shall make to eliminate any fractional shares.
3. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Disclosure Package and the Final
Prospectus.
4. Delivery of the Securities and Payment Therefor. Delivery to the Underwriters of,
and payment for, the Underwritten Securities shall be made at the office of Xxxxxx Xxxxxxxx Xxxxx &
Xxxxxxxx LLP, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York City time, on
January 23, 2008 (the “Closing Date”). Delivery to the Underwriters of, and payment for, the
Option 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 Underwritten
Securities and the Closing Date may be varied by agreement between you and the Company.
Delivery of the Securities shall be made to the Representative for the respective accounts of
the several Underwriters against payment by the several Underwriters directly or through the
Representative of the purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of the Securities shall
be made through the facilities of The Depository Trust Company unless the Representative shall
otherwise instruct.
It is understood that the Representative, 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 Securities to be purchased by such Underwriter. Any such payment by the
Representative shall not relieve any such Underwriter of any of its obligations hereunder.
5. Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company 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 Representative a copy for their
review prior to filing and will not file any such proposed amendment or supplement to which
they reasonably object. The Company will cause the Final Prospectus, properly completed,
and any supplement thereto, to be filed in a form acceptable to the Representative with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representative of such timely
filing. The Company will promptly advise the Representative (1) when the Final Prospectus,
and any supplement thereto,
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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 Company 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 Company 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 Company will prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in a form acceptable to 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 Company will (i) notify promptly the Representative so that any use of
the Disclosure Package may cease until it is amended or supplemented; (ii) amend or
supplement the Disclosure Package to correct such statement or omission; and (iii) 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 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 Representative 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 have any amendment to the Registration
Statement or new registration statement declared effective
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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 Representative in such quantities
as the Representative may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security
holders and to the Representative a consolidated earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act
and Rule 158.
(f) Upon request, the Company will furnish to the Representative 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
Representative may reasonably request. The Company 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 Company.
(g) The Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions within the United States as the Representative
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 Financial Industry
Regulatory Authority (as successor to the National Association of Securities Dealers, Inc.),
in connection with its review of the offering; provided that in no event shall the Company
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) The Company agrees that, unless it has obtained or will obtain, as the case may
be, the prior written consent of the Representative, and (ii) each Underwriter, severally
and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the
case may be, the prior written consent of the Company, it has not made and will not make any
offer relating to the 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 Company with the Commission or retained by the Company 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 Securities and the offering
thereof. Any such free writing prospectus consented to by the Representative or the Company
is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company 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 164 and 433 applicable to any Permitted Free
Writing Prospectus, including in respect of timely filing with the Commission, legending and
record keeping.
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(i) During the period beginning on the date hereof and continuing to and including the
Closing Date, the Company 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 or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) 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 shares of
preferred stock or any other securities of the Company, including any back-up undertaking of
such preferred stock or other securities, in each case that are substantially similar to the
preferred stock, or any securities convertible into or exchangeable for such preferred stock
or such substantially similar securities of the Company, except (i) the offering of the
Securities, (ii) the convertible preferred stock of the Company being sold in private
placements concurrently with the offering of the Securities and the convertible preferred
stock of the Company being sold in a U.S. public offering concurrently with the offering of
the Securities, in each case as described in the Disclosure Package and the Final
Prospectus, (iii) the issuance of Common Stock pursuant to the definitive share exchange
agreement between Citigroup Japan Holdings and Nikko Cordial Corporation, as described in
the Company’s Form 8-K filed with the SEC on October 31, 2007, and (iv) issuances and sales
of Common Stock pursuant to any employee stock option plan, stock ownership plan, dividend
reinvestment plan or similar plan of the Company.
(j) 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.
(k) The Company 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 the
Company to facilitate the sale or resale of the Securities, except that the Company makes no
agreement as to the activities of any Underwriter.
6. Representations and Warranties of the Company. The Company represents and warrants
to, and agrees 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 and the Exchange 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 make the statements
6
therein not misleading; 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 Company makes no representations or
warranties as to 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 Company by or on behalf of any Underwriter through
the Representative 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 its
obligations under, this Agreement have been duly and validly authorized by the Company, and
this Agreement has been duly executed and delivered by the Company.
(c) The Certificate of Designation has been duly and validly authorized by the Company.
(d) The execution and delivery of, and the performance by the Company and its
obligations under, the Deposit Agreement have been duly and validly authorized by the
Company, and, at the Closing Date, the Deposit Agreement will have been duly executed and
delivered by the Company.
(e) The deposit of the Preferred Stock by the Company in accordance with the Deposit
Agreement has been duly authorized by the Company; the Preferred Stock has been duly and
validly authorized by the Company, and, when the Securities are issued and delivered to and
paid for by the Underwriters pursuant to this Agreement, the Preferred Stock will be fully
paid and nonassessable; assuming due execution and delivery of the Depositary Receipts and
the Deposit Agreement by the Depositary, each Depositary Receipt will be duly and validly
issued and will entitle the holder thereof to the benefits provided therein and in the
Deposit Agreement.
(f) The holders of outstanding shares of capital stock of the Company are not entitled
to preemptive or other rights to subscribe for the Securities or the underlying shares of
Preferred Stock; and, except as set forth in the Disclosure Package and the Final
Prospectus, no options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company are outstanding.
(g) 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
Company by any Underwriter through the Representative specifically for use
7
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.
(h) (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
Company or any person acting on their behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the 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)), the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees required by the
Commission relating to the 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).
(i) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the date hereof (with such date being used as
the determination date for purposes of this clause (ii)), the Company was not and is not 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 Company be considered
an Ineligible Issuer.
(j) 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 Representative 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 and delivered to the Representative or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
7. Indemnification and Contribution.
(a) The Company 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
8
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 Securities as originally filed or in any
amendment thereof, or in the Base Prospectus, 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 the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon 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 Company by or on behalf of any
Underwriter through the Representative specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors and each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the Representative
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 Company acknowledges that the statements set forth (i) in the last paragraph of
the cover page regarding delivery of the Securities and, under the heading “Underwriting”,
(ii) the list of Underwriters and their respective participation in the sale of the
Securities, (iii) the sentences related to concessions and reallowances and (iv) the
paragraphs 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
9
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 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 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 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 on the one hand and
by the Underwriters on the other from the offering of the Securities; provided, however,
that in no case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities purchased by
such Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company 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 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 shall be
deemed to be equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be equal to the
total
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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 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 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 within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
8. Conditions of the Underwriters’ Obligations. The obligations of the several
Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the performance by the
Company 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 Company 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 Company shall have requested and caused Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx
LLP, special counsel to the Company, to have furnished to the Representative an opinion,
dated the Closing Date and addressed to the Representative, with respect to the issuance and
sale of the Securities, the Disclosure Package, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representative 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
certificates of public officials.
11
(c) The Company shall have requested and caused Xxxxxxx X. Xxxxxxx, General Counsel,
Finance and Capital Markets of the Company, to have furnished to the Representative an
opinion, dated the Closing Date and addressed to the Representative, with respect to the
issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the
Final Prospectus (together with any supplement thereto) and other related matters as the
Representative may reasonably require.
(d) The Company shall have requested and caused Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx
LLP, special tax counsel to the Company, to have furnished to the Representative an opinion,
dated the Closing Date and addressed to the Representative, with respect to certain United
States federal income tax matter related to the Securities and other related matters as the
Representative may reasonably require.
(e) The Representative 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 Representative, with respect to the issuance and sale of the Securities, the
Registration Statement, the Disclosure Package, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representative may reasonably require,
and the Company shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representative a certificate of the
Company, 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, 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 the Company 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 the Company 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, 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).
12
(g) The Company shall have requested and caused KPMG LLP to have furnished to the
Representative, 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 Representative.
(h) 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 (g) 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, 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 Representative 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 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.
(i) Subsequent to the date hereof, there shall not have been any decrease in the rating
of any of the Company’s 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.
(j) The Certificate of Designation shall have been duly filed with the Secretary of
State of the State of Delaware.
(k) The Representative shall have received from the Depositary a certificate evidencing
the deposit of the shares of Preferred Stock underlying the Securities.
(l) The Company shall have made application to list the Securities on the New York
Stock Exchange.
(m) The Company shall have furnished to the Representative such further information,
certificates and documents as the Representative 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 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 Representative 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 Representative.
13
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, by 9:00 a.m. (New York Time) 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 of its 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;
(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 Securities; (iii) the preparation, printing (or
reproduction), authentication, issuance and delivery of the Securities, including any stamp taxes
in connection with the original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement and all other agreements, documents and certificates
(including certificates representing the Preferred Stock) printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of the Securities under the
Exchange Act and the listing of the 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 Financial
Industry Regulatory Authority (as successor to the National Association of Securities Dealers,
Inc.); (viii) the fees and expenses associated with obtaining ratings for the Securities from
nationally recognized statistical rating organizations; (ix) the transportation and other expenses
incurred by or on behalf of representatives of the Company (other than the Underwriters and their
representatives) in connection with presentations to prospective purchasers of the Securities; (x)
the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including
local and special counsel) for the Company; and (xi) the fees and expenses of the Depositary in
connection with the deposit of the Preferred Stock and the offering of the Securities.
10. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Company 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 Company to perform any agreement
herein or comply with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through the Representative on
demand for all out-of-pocket expenses (including reasonable fees and
14
disbursements of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
11. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the 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 severally to
take up and pay for (in the respective proportions which the number of Securities set forth
opposite their names in Schedule I hereto bears to the aggregate number of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate number of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate number of 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 Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. 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 Representative 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 Company 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 Representative, by notice given to the Company prior to delivery of and
payment for the 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 Representative after consultation with the Company, impractical or
inadvisable to proceed with the offering or delivery of the 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 Company or its officers 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 Company or
any of the officers, directors, 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.
15
14. Notices. All communications hereunder will be in writing and effective only on
receipt, and will be mailed, delivered or telefaxed if to Citigroup Global Markets Inc., as
Representative of the several Underwriters, to 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (fax no.: (000) 000-0000) Attention: General Counsel, and if to 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).
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, 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 Company hereby acknowledges that (i) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the 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
Company and (iii) the Company’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, the Company 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 the Company on related or other matters). The Company 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 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 Company 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.
“Base Prospectus” shall mean the base prospectus contained in the Registration
Statement as of the date hereof.
16
“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 Base Prospectus, (ii) the Preliminary
Prospectus, if any, used most recently prior to the date hereof, (iii) the Final Term Sheet
described in Section 5(b) and (iv) 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.
17
Please confirm that the foregoing correctly sets forth the agreement among the Company
and the several Underwriters.
| CITIGROUP INC. | ||||||||
| By: | /s/ Xxxx Xxxxxx | |||||||
| Name: | Xxxx Xxxxxx | |||||||
| Title: | Treasurer and Head of Corporate Finance | |||||||
18
Exhibit B
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
CITIGROUP GLOBAL MARKETS INC.
as Representative of the several Underwriters
as Representative of the several Underwriters
By:
|
CITIGROUP GLOBAL MARKETS INC. | |||
By:
|
/s/ Xxxx X. XxXxxxxxx, Xx. | |||
| Name: Xxxx X. XxXxxxxxx, Xx. | ||||
| Title: Managing Director |
Depositary Shares Representing a 1/1000th Interest in a
Share of 8.125% Non-Cumulative Preferred Stock, Series AA
Share of 8.125% Non-Cumulative Preferred Stock, Series AA
Citigroup Global Markets Inc. |
23,660,000 | |||
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated |
23,660,000 | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
23,660,000 | |||
UBS Securities LLC |
23,660,000 | |||
Wachovia Capital Markets, LLC |
23,660,000 | |||
Banc of America Securities LLC |
1,300,000 | |||
Barclays Capital Inc. |
1,300,000 | |||
Bear, Xxxxxxx & Co. Inc. |
1,300,000 | |||
Credit Suisse Securities (USA) LLC |
1,300,000 | |||
Deutsche Bank Securities Inc. |
1,300,000 | |||
Xxxxxxx, Xxxxx & Co. |
1,300,000 | |||
Xxxxxx Brothers Inc. |
1,300,000 | |||
RBC Xxxx Xxxxxxxx Inc. |
1,300,000 | |||
Xxxxx Fargo Securities, LLC |
1,300,000 | |||
TOTAL |
130,000,000 | |||
20
