CITIGROUP INC. Up to 125,000,000 Shares of Common Stock (par value $0.01 per share) Continuous Offering Program Equity Distribution Agreement
EXECUTION
VERSION
Up to
125,000,000 Shares of Common Stock
(par
value $0.01 per share)
Continuous
Offering Program Equity Distribution Agreement
April 23,
2010
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Citigroup
Inc., a corporation organized under the laws of the State of Delaware (the
“Company”),
confirms its agreement (this “Agreement”) with
Citigroup Global Markets Inc. (the “Manager”) as
follows:
1. Description of
Securities. The Company proposes to issue and sell through the Manager, as sales agent, up
to 125,000,000 shares of the common stock of the Company, $0.01 par value
(“Common
Stock”) (said shares to be issued and sold by the Company being
hereinafter called the “Securities”) from
time to time during the term of this Agreement and on the terms set forth in
Section 2 of this Agreement. For purposes of selling the Securities through the
Manager, the Company hereby appoints the Manager as exclusive agent of the
Company for the purpose of soliciting purchases of the Securities from the
Company pursuant to this Agreement and the Manager agrees to use its reasonable
efforts to solicit purchases of the Securities on the terms and subject to the
conditions stated herein. Certain terms used herein are defined in Section 18
hereof.
2. Sale and Delivery of
Securities.
(a)
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to issue and
sell the Securities from time to time through the Manager, acting as sales
agent, and the Manager agrees to use its reasonable efforts to sell, as sales
agent for the Company, the Securities on the following terms.
(i)
The Securities are to be sold on a daily basis or otherwise as shall be
agreed to by the Company and the Manager on any day that (A) is a trading day
for the New York Stock Exchange (“NYSE”), (B) the
Company has instructed the Manager by telephone (confirmed promptly by
electronic mail) to make such sales and (C) the Company has satisfied its
obligations under Section 6 of this Agreement. Subject to the terms
and conditions hereof, the Manager shall use its reasonable efforts to sell all
of the Securities hereunder. The gross sales price of the Securities
sold under this Section 2(a) shall be the market price for shares of the
Company’s Common Stock at which such Securities were sold by the Manager under
this Section 2(a).
(ii) The
Company acknowledges and agrees that (A) there can be no assurance that the
Manager will be successful in selling the Securities, (B) the Manager will incur
no liability or obligation to the Company or any other person or entity if it
does not sell the Securities for any reason other than a failure by the Manager
to use its reasonable efforts consistent with its normal trading and sales
practices and applicable law and regulations to sell such Securities as required
under this Agreement, and (C) the Manager shall be under no obligation to
purchase the Securities on a principal basis pursuant to this
Agreement.
(iii) The
Company or the Manager may, upon notice to the other party hereto by telephone
(confirmed promptly by electronic mail), suspend the offering of the Securities
for any reason and at any time; provided, however, that such suspension
shall not affect or impair the parties’ respective obligations with respect to
the Securities sold hereunder prior to the giving of such notice.
(iv) The
Manager hereby covenants and agrees not to make any sales of the Securities on
behalf of the Company, pursuant to this Section 2(a), other than (A) by means of
ordinary brokers’ transactions between members of the NYSE that qualify for
delivery of a Prospectus in accordance with Rule 153 or any other transactions
that so qualify (all such transactions are hereinafter referred to as “Continuous
Offerings”) and (B) such other sales of the Securities on behalf of the
Company in its capacity as sales agent of the Company as shall be agreed by the
Company and the Manager.
(v)
The Manager shall receive no commission for sales of the
Securities with respect to which the Manager acts as sales agent under this
Agreement. The proceeds from the sales of the Securities pursuant to
this Agreement, after deduction for any transaction fees imposed by any
governmental or self-regulatory organization in respect of such sales (the
“Transaction
Fees”), shall constitute the net proceeds to the Company for such
Securities (the “Net
Proceeds”).
(vi) The
Manager shall provide written confirmation (which may be by facsimile or
electronic mail) to the Company following the close of trading on the NYSE each
day in which the Securities are sold under this Section 2(a) setting forth the
number of the Securities sold on such day, the aggregate gross sales proceeds
and the Net Proceeds to the Company, and any expenses of the Manager
reimbursable pursuant hereto by the Company with respect to such sales payable
by the Company to the Manager with respect to such sales. Such
expenses shall be set forth and invoiced in periodic statements from the Manager
to the Company, with payment to be made by the Company promptly after its
receipt thereof.
(vii) Settlement
for sales of the Securities pursuant to this Section 2(a) will occur at 10:00
a.m. (Eastern Time), or at such other time as the Company and the Manager may
agree, on the third business day following the date on which such sales are made
(each such day, a “Settlement
Date”). On each Settlement Date, the Securities sold through
the Manager for settlement on such date shall be issued and delivered by the
Company to the Manager against payment of the Net Proceeds for the sale of such
Securities. Settlement for all such Securities shall be effected by
free delivery of the Securities to the Manager’s account at The Depository Trust
Company (“DTC”)
through its Deposit and Withdrawal at Custodial System (“DWAC”), or by such
other means of delivery as may be mutually agreed upon by the parties hereto,
which Securities shall in all cases be freely tradable, transferable, registered
shares in good deliverable form, in return for payments in same day funds
delivered to the account designated by the Company. If the Company or
its transfer agent (if applicable) shall default on its obligation to deliver
the Securities on any Settlement Date, the Company shall (A) indemnify and hold
the Manager harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (B) pay the Manager any commission to
which it would otherwise be entitled absent such default. If the
Manager breaches this Agreement by failing to deliver the Net Proceeds on any
Settlement Date for the Securities delivered by the Company, the Manager will
pay the Company interest based on the effective overnight federal funds rate on
such unpaid amount less any compensation due to the Manager.
(viii) At
each Applicable Time, Settlement Date, Representation Date (as defined in
Section 3(m)) and Filing Date (as defined in Section 3(z)), the Company shall be
deemed to have affirmed each representation and warranty contained in this
Agreement as if such representation and warranty were made as of such date,
modified as necessary to relate to the Registration Statement and the Prospectus
as amended as of such date. Any obligation of the Manager to use its
reasonable efforts to sell the Securities on behalf of the Company shall be
subject to the continuing accuracy of the representations and warranties of the
Company herein, to the performance by the Company of its obligations hereunder
and to the continuing satisfaction of the additional conditions specified in
Section 6 of this Agreement.
(b) Under
no circumstances shall the number of the Securities sold pursuant to this
Agreement exceed the number of the Securities authorized from time to time to be
issued and sold under this Agreement by the Board, or a duly authorized
committee thereof, and notified to the Manager in writing.
(c) If
either party has reason to believe that the exemptive provisions set forth in
Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with
respect to the Securities, it shall promptly notify the other party and sales of
the Securities under this Agreement shall be suspended until that or other
exemptive provisions have been satisfied in the judgment of each
party.
(d) The
Company agrees that, on any single given day, any offer to sell, any
solicitation of an offer to buy, or any sales of Securities, in each case by or
on behalf of the Company, shall only be effected by or through the Manager;
provided, however, that the foregoing
limitation shall not apply on any day during which no sales are made pursuant to
this Agreement and no Settlement Date is pending with respect to Securities
previously sold hereunder.
(e) Notwithstanding
any other provision of this Agreement, the Company shall not request the sale of
any Securities that would be sold, and the Manager shall not be obligated to
sell, during any period in which the Company’s xxxxxxx xxxxxxx policy, as it
exists at the Execution Time, would prohibit the purchases or sales of the
Company’s Common Stock by its officers or directors, or during any other period
in which the Company is, or could be deemed to be, in possession of material
non-public information; provided that, unless
otherwise agreed between the Company and the Manager, for purposes of this
paragraph (e) such period shall be deemed to last from the first day of the
month after a calendar quarter until 24 hours after the filing of the earnings
release relating to such quarter. The Company agrees to provide the
Manager with a copy of its xxxxxxx xxxxxxx policy as it exists at the Execution
Time, and to advise the Manager in writing of any changes thereto after the
Execution Time.
3. Agreements. The
Company agrees with the Manager that:
(a) During
any period when the delivery of a prospectus relating to the Securities is
required ((including in circumstances where such requirement may be satisfied
pursuant to Rule 172 or any similar rule, or may be deemed pursuant to Rule 153)
to be delivered under the Act, the Company will not file any amendment of the
Registration Statement or supplement (including the Prospectus Supplement or any
Interim Prospectus Supplement) to the Base Prospectus unless the Company has
furnished to the Manager a copy for its review prior to filing and will not file
any such proposed amendment or supplement to which the Manager reasonably
objects. The Company has properly completed the Prospectus, in a form
acceptable to the Manager, and filed such Prospectus, as amended at the
Execution Time, with the Commission pursuant to the applicable paragraph of Rule
424(b) by the Execution Time and will cause any supplement to the Prospectus to
be properly completed, in a form acceptable to the Manager, and will file such
supplement with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed thereby and will provide evidence
reasonably satisfactory to the Manager of such timely filing. The
Company will promptly advise the Manager (i) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (ii) when, during any period when the delivery of a
prospectus (whether physically or through compliance with Rule 172, 173 or any
similar rule) is required under the Act in connection with the offering or sale
of the Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iii) of any request by the Commission or its staff
for any amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Prospectus or for any additional
information, (iv) 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
(v) 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) If,
at any time on or after an Applicable Time but prior to the related Settlement
Date, (i) 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, (ii) any event shall
occur or condition exist as a result of which the Disclosure Package conflicts
with the information contained in the Registration Statement then on file, or
(iii) it is necessary to amend or supplement the Disclosure Package to comply
with applicable law, the Company will forthwith notify promptly the Manager so
that any use of the Disclosure Package may cease until it is supplemented or
amended, and thereafter promptly prepare, file with the Commission and furnish,
at its own expense, to the Manager upon request, either amendments or
supplements to the Disclosure Package so that the statements in the Disclosure
Package as so amended or supplemented will not, in the light of the
circumstances when the Disclosure Package is delivered to a prospective
purchaser, be misleading or so that the Disclosure Package, as amended or
supplemented, will no longer conflict with the Registration Statement, or so
that the Disclosure Package, as amended or supplemented, will comply with
applicable law.
(c) If,
at any time when the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a)) is required to be delivered under the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172) in
connection with sales by the Manager, any event occurs as a result of which the
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 Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, including in connection
with use or delivery of the Prospectus, the Company promptly will
(i) notify the Manager of such event so that any use of the Prospectus may
cease until it is supplemented or amended, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 3, 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 as soon as practicable, if then
required, in order to avoid any disruption in use of the Prospectus and
(iv) supply any supplemented Prospectus to the Manager in such quantities
as the Manager may reasonably request.
(d) As
soon as practicable, the Company will make generally available to its security
holders and to the Manager 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.
(e) Upon
request, the Company will furnish to the Manager and counsel for the Manager,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and deliver to the Manager on each Representation Date and at any time
such documents are otherwise amended or supplemented, as many copies of the
Disclosure Package, the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto or to the Registration
Statement as the Manager 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.
(f)
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 Manager 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 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.
(g) The
Company will furnish to the Manager and counsel for the Manager, without charge,
a copy of each proposed Free Writing Prospectus to be prepared by or on behalf
of, used by, or referred to by the Company and will not use or refer to any
proposed Free Writing Prospectus to which the Manager reasonably objects; provided that, if in the
opinion of counsel to the Company, any such Free Writing Prospectus shall be
required by law or regulation to be used, then the Company shall be permitted to
use such Free Writing Prospectus after taking into account such comments as the
Manager and its counsel may reasonably make on the content, form or other
aspects of such proposed Free Writing Prospectus.
(h) (i)
The Company agrees that, unless it has obtained or will obtain, as the case may
be, the prior written consent of the Manager, and (ii) the Manager 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. Any such free writing
prospectus consented to by the Manager 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.
(i) If
the third anniversary of the initial Effective Date of the Registration
Statement occurs before all the Securities have been sold by the Manager, prior
to the third anniversary, the Company will file a new shelf registration
statement and to take any other action reasonably necessary to permit the public
offering of the Securities to continue without interruption; provided that such
requirement to file a new registration statement shall not require the Company
to file any registration statement other than on Form S-3 (or any successor
form). References herein to the Registration Statement shall include
the new registration statement declared effective by the
Commission. If at any time when Securities remain unsold by the
Manager the Company receives from the Commission a notice pursuant to Rule
401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic
shelf registration statement form, the Company will (i) promptly notify the
Manager, (ii) promptly file a new registration statement or post-effective
amendment on the proper form relating to the Securities, in a form reasonably
satisfactory to the Manager (provided that the Company
shall not be required to file any registration statement other than on Form
S-3), (iii) cause such registration statement or post-effective amendment to be
declared effective as soon as reasonably practicable (if such filing is not
otherwise effective immediately pursuant to Rule 462 under the Act), and (iv)
promptly notify the Manager of such effectiveness. The Company will
take all other action reasonably appropriate or necessary to permit the public
offering and sale of the Securities to continue as contemplated in the
Registration Statement that was the subject of the notice under Rule 401(g)(2)
under the Act or for which the Company has otherwise become
ineligible. References herein to the Registration Statement relating
to the Securities shall include any such new registration statement or
post-effective amendment, as the case may be.
(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 (i) 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
the Manager or (ii) sell, bid for, purchase or pay any person (other than as
contemplated by this Agreement) any compensation for soliciting purchases of the
Securities. The Company shall notify the Manager of any activity that
shall constitute a violation of Regulation M by any of its officers or directors
promptly after the Company has received notice or obtained knowledge of any such
violation.
(l) The
Company will, at any time during the term of this Agreement, as supplemented
from time to time, advise the Manager immediately after it shall have received
notice or obtained knowledge thereof, of any information or fact that would
alter or affect any opinion, certificate, letter and other document provided to
the Manager pursuant to Section 6 herein.
(m) Upon
commencement of the offering of the Securities under this Agreement (and upon
the recommencement of the offering of the Securities under this Agreement
following the termination of a suspension of sales hereunder lasting more than
30 trading days (but if any such suspension shall be 30 or fewer trading days
and any intervening event listed in (i) or (ii) below shall have occurred, then
upon such recommencement)), and each time that (i) the Registration Statement or
the Prospectus shall be amended or supplemented (other than an Interim
Prospectus Supplement filed pursuant to Rule 424(b) pursuant to Section 3(z) of
this Agreement or a prospectus supplement relating solely to the offering of
securities other than the Securities), (ii) there is filed with the Commission
any document incorporated by reference into the Prospectus (other than a Current
Report on Form 8-K, unless the Manager shall otherwise reasonably request), or
(iii) otherwise as the Manager may reasonably request (such commencement or
recommencement date and each such date referred to in (i), (ii), (iii) and (iv)
above, a “Representation
Date”), the Company shall furnish or cause to be furnished to the Manager
forthwith a certificate dated and delivered the date of such commencement or
recommencement, effectiveness of such amendment, the date of filing with the
Commission of such supplement or other document, or promptly upon request, as
the case may be, in form reasonably satisfactory to the Manager to the effect
that the statements contained in the certificate referred to in Section 6(d) of
this Agreement which were last furnished to the Manager are true and correct at
the time of such commencement or recommencement, amendment, supplement, filing,
or delivery, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 6(d), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(n) At
each Representation Date, the Company shall furnish or cause to be furnished
forthwith to the Manager and to counsel to the Manager a written opinion of
Xxxxxxx X. Xxxxxxx, Assistant General Counsel–Capital Markets of the Company, or
other counsel satisfactory to the Manager, dated and delivered the date of
commencement or recommencement, effectiveness of such amendment, the date of
filing with the Commission of such supplement or other document, or promptly
upon such request, as the case may be, in form and substance satisfactory to the
Manager, of the same tenor as the opinions referred to in Section 6(b) of this
Agreement, but modified as necessary to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinion.
(o) On
each Representation Date, Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel to
the Manager, shall furnish to the Manager a written opinion, dated as of such
date in form and substance reasonably satisfactory to the Manager.
With
respect to Sections 3(n) and 3(o) above, in lieu of delivering such an
opinion for dates subsequent to the commencement of the offering of the
Securities under this Agreement such counsel may furnish the Manager with a
letter (a “Reliance
Letter”) to the effect that the Manager may rely on a prior opinion
delivered under Section 3(n) or Section 3(o), as the case may be, to the same
extent as if it were dated the date of such letter (except that statements in
such prior opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented as of such subsequent
date).
(p) Upon
commencement of the offering of the Securities under this Agreement (and upon
the recommencement of the offering of the Securities under this Agreement
following the termination of a suspension of sales hereunder lasting more than
30 trading days (but if any such suspension shall be 30 or fewer trading days
and any intervening event listed in (i) or (ii) of Section 3(m) shall have
occurred, then upon such recommencement), and each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional amended financial information, (ii) the Company files a
Quarterly Report on Form 10-Q or an Annual Report on Form 10-K, or (iii) at the
Manager’s request and upon reasonable advance notice to the Company, there is
filed with the Commission any document which contains financial information
(other than an Annual Report on Form 10-K) incorporated by reference into the
Prospectus (each such date referred to in (i), (ii), (iii) and (iv) above, a
“Financial
Representation Date”), the Company shall cause KPMG LLP (the “Accountants”), or
other independent accountants satisfactory to the Manager forthwith, to furnish
the Manager a letter, dated the date of commencement or recommencement,
effectiveness of such amendment, the date of filing of such supplement or other
document with the Commission, as the case may be, in form satisfactory to the
Manager, of the same tenor as the letter referred to in Section 6(d) of this
Agreement but modified to relate to the Registration Statement and the
Prospectus, as amended and supplemented to the date of such letter; provided, however, that the Company
will not be required to cause the Accountants to furnish such letters to the
Manager in connection with the filing of a Current Report on Form 8-K unless (i)
such Current Report on Form 8-K is filed at any time during which a prospectus
relating to the Securities would be required to be delivered under the Act, and
(ii) the Manager has requested such letter based upon the event or events
reported in such Current Report on Form 8-K.
(q) Upon
commencement of the offering of the Securities under this Agreement (and upon
the recommencement of the offering of the Securities under this Agreement
following the termination of a suspension of sales hereunder lasting more than
30 trading days (but if any such suspension shall be 30 or fewer trading days
and any intervening event listed in (i) or (ii) of Section 3(m) shall have
occurred, then upon such recommencement)) and at each Financial Representation
Date, the Company shall furnish to the Manager a certificate dated and delivered
the date of such date or promptly upon request, as the case may be, in form and
substance reasonably satisfactory to the Manager, of the same tenor as the
certificate referred to in Section 6(d) of this Agreement, but modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(r) Upon
commencement of the offering of the Securities under this Agreement (and upon
the recommencement of the offering of the Securities under this Agreement
following the termination of a suspension of sales hereunder lasting more than
30 trading days (but if any such suspension shall be 30 or fewer trading days
and any intervening event listed in (i) or (ii) of Section 3(m) shall have
occurred, then upon such recommencement), and at each Representation Date, the
Company will conduct a due diligence session, in form and substance satisfactory
to the Manager. The Company shall cooperate timely with any
reasonable due diligence request from or review conducted by the Manager or its
agents from time to time in connection with the transactions contemplated by
this Agreement, including, without limitation, providing information and
available documents and access to appropriate corporate officers and the
Company’s agents during regular business hours and at the Company’s principal
offices, and timely furnishing or causing to be furnished such certificates,
letters and opinions from the Company, its officers and its agents, as the
Manager may reasonably request.
(s) The
Company consents to the Manager trading in the Common Stock for the account of
the Manager’s clients at the same time as sales of the Securities occur pursuant
to this Agreement.
(t) The
Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports
on Form 10-Q, as applicable, the number of Securities sold through the Manager
under this Agreement, the Net Proceeds to the Company and the compensation paid
by the Company with respect to sales of Securities pursuant to this Agreement
during the relevant quarter.
(u) If
to the knowledge of the Company, the conditions set forth in Section 6(a), 6(e)
or 6(f) shall not have been satisfied as of the applicable Settlement Date, the
Company will offer to any person who has agreed to purchase Securities from the
Company as the result of an offer to purchase solicited by the Manager the right
to refuse to purchase and pay for such Securities.
(v) Each
acceptance by the Company of an offer to purchase the Securities hereunder shall
be deemed to be an affirmation to the Manager that the representations and
warranties of the Company contained in or made pursuant to this Agreement are
true and correct as of the date of such acceptance as though made at and as of
such date, and an undertaking that such representations and warranties will be
true and correct as of the Settlement Date for the Securities relating to such
acceptance as though made at and as of such date (except that such
representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented relating to such
Securities).
(w) The
Company shall ensure that there are at all times sufficient shares of Common
Stock to provide for the issuance, free of any preemptive rights, out of its
authorized but unissued shares of Common Stock or shares of Common Stock held in
treasury, of the maximum aggregate number of Securities authorized for issuance
by the Board pursuant to the terms of this Agreement. The Company
will use its commercially reasonable efforts to cause the Securities to be
listed for trading on the NYSE and to maintain such listing.
(x) The
Company shall cooperate with Manager and use its reasonable efforts to permit
the Securities to be eligible for clearance and settlement through the
facilities of DTC.
(y) The
Company will apply the Net Proceeds from the sale of the Securities in the
manner set forth in the Prospectus.
(z) On
or prior to the earlier of (i) the date on which the Company shall file a
Quarterly Report on Form 10-Q or an Annual Report on Form 10-K in respect of any
fiscal quarter in which sales of Securities were made by the Manager pursuant to
Section 2(a) of this Agreement and (ii) the date on which the Company shall be
obligated to file such document referred to in clause (i) in respect of such
quarter (each such date, and any date on which an amendment to any such document
is filed, a “Filing
Date”), the Company will file a prospectus supplement with the Commission
under the applicable paragraph of Rule 424(b), which prospectus supplement will
set forth, with regard to such quarter, the number of the Securities sold
through the Manager as sales agent pursuant to Section 2(a) of this Agreement in
Continuous Offerings, the Net Proceeds to the Company and the compensation paid
by the Company with respect to such sales of the Securities pursuant to Section
2(a) of this Agreement.
4. Representations and
Warranties. The Company represents and warrants to, and agrees
with, the Manager at the Execution Time and on each such time the following
representations and warranties are repeated or deemed to be made pursuant to
this Agreement, as set forth below:
(a) 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. 333-157459), 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 Execution Time or prior to any such time this
representation is repeated or deemed to be made, became effective upon
filing. No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the Company’s knowledge, threatened by the
Commission. The Registration Statement is an automatic shelf
registration statement (as defined in Rule 405), and the Company has not
received notice that the Commission objects to the use of the Registration
Statement as an automatic shelf registration statement. The Company
has filed with the Commission a Base Prospectus relating to the Securities in
accordance with Rule 424(b). The Company will file with the
Commission a Prospectus Supplement and Interim Prospectus Supplements relating
to the Securities in accordance with Rule 424(b). As filed, such
Prospectus shall contain all information required by the Act and the rules
thereunder, and, except to the extent the Manager shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to the
Manager 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 draft Prospectus
Supplement) as the Company has advised the Manager, prior to the Execution Time
or prior to any such time this representation is repeated or deemed to be made,
will be included or made therein. The Registration Statement, at the
Execution Time, each such time this representation is repeated or deemed to be
made, and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 or any similar
rule) in connection with any offer or sale of Securities, 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
Execution Time.
(b) To
the extent that the Registration Statement is not available for the sales of the
Securities as contemplated by this Agreement or the Company is not a “well known
seasoned issuer” as defined in Rule 405 or otherwise is unable to make the
representations set forth in Section 2(g) at any time when such representations
are required, the Company shall file a new registration statement with respect
to any additional shares of Common Stock necessary to complete such sales of the
Securities and shall cause such registration statement to become effective as
promptly as practicable; provided that such filing
requirement shall not require the Company to file any registration statement
other than on Form S-3. After the effectiveness of any such
registration statement, all references to “Registration Statement” included in
this Agreement shall be deemed to include such new registration statement,
including all documents incorporated by reference therein pursuant to Item 12 of
Form S-3, and all references to “Base Prospectus” included in this Agreement
shall be deemed to include the final form of prospectus, including all documents
incorporated therein by reference, included in any such registration statement
at the time such registration statement became effective.
(c) On
each Effective Date, at the Execution Time, at each Applicable Time, at each
Settlement Date and at all times during which a prospectus is required by the
Act to be delivered (whether physically or through compliance with Rule 172 or
any similar rule) in connection with any offer or sale of Securities, the
Registration Statement did and will comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective rules
thereunder and 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 therein not misleading; and on the
date of any filing pursuant to Rule 424(b), at the Execution Time, at each
Applicable Time, on each Settlement Date and at all times during which a
prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 or any similar rule) in connection with any offer or
sale of Securities, the Prospectus (together with any supplement thereto)
complied and will comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules thereunder
and did not and 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 Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by the Manager specifically for inclusion in
the Registration Statement or the Prospectus (or any supplement thereto), it
being understood and agreed that the only such information furnished by the
Manager consists of the information described as such in Section 5
hereof.
(d) 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.
(e) This
issuance of Common Stock to be sold by the Company has been duly authorized by
the Company and, when the Common Stock to be sold by the Company is issued and
delivered to and paid for pursuant to this Agreement, will be validly issued,
fully paid and nonassessable; the holders of outstanding shares of the common
stock of the Company are not entitled to preemptive or other rights to subscribe
for the Securities to be sold by the Company; and, except as set forth in the
Disclosure Package and the 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 common stock or
ownership interest in the Company are outstanding.
(f) 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 the Manager
specifically for use therein, it being understood and agreed that the only such
information furnished by the Manager consists of the information described as
such in Section 5 hereof.
(g) (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 its 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) as
of the Execution Time and on each such time this representation is repeated or
deemed to be made (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).
(h) (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 Execution Time
and on each such time this representation is repeated or deemed to be made (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.
(i) No
Issuer Free Writing Prospectus includes any information that conflicts with the
information contained in the Registration Statement, including any document
incorporated therein by reference 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 based upon and in conformity with written information
furnished to the Company by the Manager specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf
of the Manager consists of the information described as such in Section 5
hereof.
(j) The
Common Stock is an “actively-traded security” exempted from the requirements of
Rule 101 of Regulation M under the Exchange Act by
subsection (c)(1) of such rule.
(k) The
Company has not entered into any other sales agency agreements or other similar
arrangements with any agent or any other representative in respect of at the
market offerings of the Securities in accordance with Rule 415(a)(4) of the
Act.
(l) The
Company has not taken and will not take, directly or indirectly, any action
designed to or that might be reasonably expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
Any
certificate signed by any officer of the Company and delivered to the Manager or
counsel for the Manager in connection with this Agreement shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to
the Manager.
5. Indemnification and
Contribution.
(a) The
Company agrees to indemnify and hold harmless the Manager, the directors,
officers, employees and agents of the Manager and each person who controls the
Manager 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 Securities as originally filed or in any amendment thereof, or in the
Base Prospectus, the Prospectus Supplement, any Interim Prospectus Supplement,
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 the Manager specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) The
Manager 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 the
Manager, but only with reference to written information relating to the Manager
furnished to the Company by the Manager specifically for inclusion in the
documents referred to in the foregoing indemnity. The Company
acknowledges that the statements set forth in the fourth sentence of the first
paragraph and the first and second sentences of the second paragraph under the
heading “Plan of Distribution” in the Prospectus Supplement constitute the only
written information furnished by the Manager for inclusion in the Prospectus
Supplement. This indemnity agreement will be in addition to any
liability that the Manager may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 5 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 5,
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 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 5 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Manager agrees 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 the Manager 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
Manager on the other from the offering of the Securities; provided, however, that in no case
shall the Manager be responsible for any amount in excess of the underwriting
discount, as the case may be, applicable to the Securities purchased by the
Manager hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Manager
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 Manager 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 Net Proceeds for sales of the Securities, and benefits received
by the Manager shall be deemed to be equal to the total commission as determined
by this Agreement. 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 Manager 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 Manager 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 5, each person who
controls the Manager within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of the Manager shall have the
same rights to contribution as the Manager, 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).
6. Conditions to the Manager’s
Obligations. The obligations of the Manager under this Agreement shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the Execution Time, each Representation Date, and
as of each Applicable Time and Settlement 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 respective obligations
hereunder and to the following additional conditions:
(a) The
Prospectus, and any supplement thereto have been filed in the manner and within
the time period required by Rule 424(b) with respect to any sale of Securities;
each Interim Prospectus Supplement shall have been filed in the manner required
by Rule 424(b) within the time period required by Section 3(z) of this
Agreement; 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 X. Xxxxxxx, Associate General
Counsel—Capital Markets of the Company, to have furnished to the Manager, on
each Representation Date an opinion, dated as of such date and addressed to the
Manager, with respect to the issuance and sale of the Securities, the
Registration Statement, the Disclosure Package, the Prospectus (together with
any supplement thereto) and other related matters as the Manager may reasonably
require.
(c) The
Manager shall have received on each date specified in Section 3(o), such opinion
or opinions of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the
Manager, dated such date and addressed to the Manager, with respect to the sale
of the Securities, the Registration Statement, the Prospectus, the Disclosure
Package and other related matters as the Manager 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.
(d) The
Company shall have furnished to the Manager, on each Representation Date 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 as of such date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement, the 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 such date with the same effect as if made on such 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 such
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 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
Prospectus (exclusive of any supplement thereto).
(e) The
Company shall have requested and caused KPMG LLP to have furnished to the
Manager, on and as of on every date specified in Section 3(p) of this Agreement
and to the extent requested by the
Manager in connection with any offering of the Securities, customary “comfort letters”
that are satisfactory in content and form to the Manager.
(f) 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), the Disclosure
Package and the 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 (c) of this Section 6 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 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 Manager 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
Prospectus (exclusive of any supplement thereto) and any Issuer Free Writing
Prospectus.
(g) The
Company shall have made application to list the Securities on the
NYSE.
(h) Prior
to each Settlement Date, the Company shall have furnished to the Manager such
further information, certificates and documents as the Manager may reasonably
request.
If any of
the conditions specified in this Section 6 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 Manager and counsel for the Manager, this Agreement and all
obligations of the Manager hereunder may be canceled with respect to such
offering at, or at any time prior to, any Settlement Date by the
Manager. Notice of such cancellation shall be given to the Company in
writing or by telephone, electronic mail or facsimile confirmed in
writing.
The
documents required to be delivered by this Section 6 shall be delivered at the
office of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Manager, at
Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, by 9:00 a.m. (New York Time) on
each such date as provided in this Agreement.
7. 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 respective 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 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 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 Securities) 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 NYSE; (vi) the registration or qualification of the Securities
for offer and sale under the laws of such jurisdictions within the United States
as provided in Section 3(f) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Manager 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 Manager in connection with
any filings required to be made with the Financial Industry Regulatory
Authority; (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 Manager and their
representatives) in connection with presentations to prospective purchasers of
the Securities; and (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.
8. Reimbursement of Manager’
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 6 hereof is not satisfied, because of any termination pursuant
to Section 9 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 Manager, the Company will
reimburse the Manager 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
Securities.
9. Termination of
Agreement.
(a) The
Company shall have the right, by giving written notice as hereinafter specified,
to terminate the provisions of this Agreement relating to the solicitation of
offers to purchase the Securities in its sole discretion at any
time. Any such termination shall be without liability of any party to
any other party except that (i) if Securities have been sold through the Manager
for the Company, then Section 3(v) shall remain in full force and effect, (ii)
with respect to any pending sale, through the Manager for the Company, the
obligations of the Company shall remain in full force and effect notwithstanding
the termination and (iii) the provisions of Sections 4, 5, 7, 10, 11, 13 and 14
of this Agreement shall remain in full force and effect notwithstanding such
termination.
(b) The
Manager shall have the right, by giving written notice as hereinafter specified,
to terminate the provisions of this Agreement relating to the solicitation of
offers to purchase the Securities in its sole discretion at any
time. Any such termination shall be without liability of any party to
any other party except that the provisions of Sections 4, 5, 7, 10, 11, 13 and
14 of this Agreement shall remain in full force and effect notwithstanding such
termination.
(c) This
Agreement shall remain in full force and effect unless terminated pursuant to
Sections 9(a) or (b) above or otherwise by mutual agreement of the parties;
provided that any such
termination by mutual agreement shall in all cases be deemed to provide that
Sections 4, 5, 7 and 10 shall remain in full force and effect.
(d) Any
termination of this Agreement shall be effective on the date specified in such
notice of termination; provided that such
termination shall not be effective until the close of business on the date of
receipt of such notice by the Manager or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for
any sale of the Securities, such sale shall settle in accordance with the
provisions of Section 2(a)(vii) of this Agreement.
10. Representations and
Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Manager 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 the Manager or the Company or any of the officers, directors,
employees, agents or controlling persons referred to in Section 5 hereof, and
will survive delivery of and payment for the Securities. The
provisions of Sections 5 and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Manager, will be mailed, delivered or telefaxed if to Citigroup
Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: General Counsel (fax
no.: (000) 000-0000); if sent to the Company, will be mailed,
delivered or telefaxed to Citigroup Inc.—Treasury Department, 000 X. 00xx Xxxxxx,
0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax no.: (000) 000-0000), with a copy to Citigroup Inc., Xxx Xxxxx Xxxxxx,
00xx Xxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx
00000, Attn: Associate
General Counsel – Capital Markets (fax no.: (000)
000-0000).
12. 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 5 hereof, and no other person
will have any right or obligation hereunder.
13. 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 Manager and any affiliate through which it may
be acting, on the other, (ii) the Manager is acting solely as sales agent in
connection with the purchase and sale of the Company’s securities and not as a
fiduciary of the Company and (iii) engagement of the Manager by the Company 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 the Manager has advised or is
currently advising the Company on related or other matters). The
Company agrees that it will not claim that the Manager has 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.
14. Integration. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Manager with respect to the subject matter
hereof.
15. 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.
16. 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.
17. Headings. The
section headings used in this Agreement are for convenience only and shall not
affect the construction hereof.
18. 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.
“Applicable Time”
shall mean, with respect to any Securities, the time of sale of such Securities
pursuant to this Agreement.
“Base Prospectus”
shall mean the base prospectus contained in the Registration Statement as of the
at the Execution Time.
“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 Prospectus Supplement, (iii) the
most recently filed Interim Prospectus Supplement, (iv) any Issuer Free Writing
Prospectuses, and (v) any other 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.
“Execution Time” shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto.
“Free Writing
Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Interim Prospectus
Supplement” shall mean the prospectus supplement relating to the
Securities prepared and filed pursuant to Rule 424(b) from time to time as
provided by Section 3(z) of this Agreement.
“Issuer Free Writing
Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433.
“Prospectus” shall
mean the Base Prospectus, as supplemented by the Prospectus Supplement and the
most recently filed Interim Prospectus Supplement (if any).
“Prospectus
Supplement” shall mean the most recent prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) at or prior to the
Execution Time.
“Registration
Statement” shall mean the registration statement referred to in
introductory paragraph 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, shall also mean
such registration statement as so amended.
“Rule 153”, “Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”, “Rule 415”,
“Rule 424”,
“Rule 430B”,
“Rule 433”,
“Rule 436”,
“Rule 456” and
“Rule 457” refer to such rules
under the Act.
“Well-Known Seasoned
Issuer” shall mean a well-known seasoned issuer, as defined in Rule
405.
Please
confirm that the foregoing correctly sets forth the agreement among the Company
and the Manager.
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By:
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/s/
Xxxx Xxxxx
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|
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Name: Xxxx Xxxxx
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||
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Title: Treasurer
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||
Confirmed
as of the date first above mentioned
CITIGROUP
GLOBAL MARKETS INC.
By: CITIGROUP
GLOBAL MARKETS INC.
By: /s/
Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Managing Director
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