Exhibit 1(a)
CITIGROUP FUNDING INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
BASIC PROVISIONS
New York, New York
May ____, 2005
Citigroup Funding Inc., a Delaware corporation (the "Company"), may issue
and sell from time to time series of its debt securities registered under the
registration statement referred to in Section 1(a) hereof. Such debt securities
may have varying designations, denominations, currencies, interest rates and
payment dates, maturities, redemption provisions and selling prices. The basic
provisions set forth herein are intended to be incorporated by reference in a
terms agreement of the type referred to in Section 3 hereof relating to the
specific series of debt securities to be issued and sold by the Company and
guaranteed by Citigroup Inc., a Delaware corporation (the "Guarantor") pursuant
thereto (the "Securities") to the several underwriters named therein (the
"Underwriters"). Unless otherwise specified in the applicable terms agreement,
the Securities will be issued under (i) in the case of senior debt securities,
an indenture dated as of May ____, 2005, among the Company, the Guarantor and
The Bank of New York, as trustee (such trustee or such other replacement or
successor trustee as may be named for such senior debt securities, the "Senior
Debt Trustee") (such indenture, as it may from time to time be amended or
supplemented by one or more indentures supplemental thereto, the "Senior Debt
Indenture"), or (ii) in the case of subordinated debt securities, an indenture
to be entered into among the Company, the Guarantor and Deutsche Bank Trust
Company Americas, as trustee (such trustee or such other replacement or
successor trustee as may be named for such subordinated debt securities, the
"Subordinated Debt Trustee" and, together with the Senior Debt Trustee, the
"Trustee") (such indenture, as it may from time to time be amended or
supplemented by one or more indentures supplemental thereto, the "Subordinated
Debt Indenture" and, together with the Senior Debt Indenture, the "Indenture").
The terms agreement relating to the Securities (the "Terms Agreement"), together
with the provisions incorporated therein by reference, is herein referred to as
this "Agreement." Unless otherwise defined herein, terms defined in the Terms
Agreement are used herein as therein defined. The firm or firms designated as
the representative or representatives, as the case may be, of the Underwriters
of the Securities in the Terms Agreement relating thereto will act as the
representative or representatives (the "Representative"). To the extent there is
only one Underwriter for the sale of the Securities, the term Representative and
the term Underwriters shall mean the Underwriter.
Any reference herein to the Registration Statement, the Base Prospectus,
any Preliminary Final 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 Final 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 Final 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 Final 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 17 hereof.
1. Representations and Warranties. The Company and the Guarantor,
jointly and severally, represent and warrant to, and agree with, each
Underwriter as set forth below in this Section 1.
(a) The Company and the Guarantor meet the requirements for use of
Form S-3 under the Act and has prepared and filed with the Commission a
registration statement on Form S-3 (File No. 333- ), including a related
base prospectus, for registration under the Act of the offering and sale
of the Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will next file with the
Commission one of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement)
or (3) a final prospectus in accordance with Rules 415 and 424(b). In the
case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, 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
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did
not or 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; on the Effective Date
and on the Closing Date the Indentures did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act and
the rules thereunder; and, on the Effective Date, the Final Prospectus, if
not filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the
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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 and the Guarantor make no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustees or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
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).
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.
2. Purchase and Sale. Sales of the Securities may be made from time
to time to the Underwriters of the Securities. The obligation of the Company to
issue and sell any of the Securities, the obligation of the Guarantor to
guarantee any of the Securities and the obligation of any Underwriters to
purchase any of the Securities shall be evidenced by the Terms Agreement with
respect to the Securities specified therein. Each Terms Agreement shall specify
the Indenture under which the Securities are to be issued, the Trustee, the firm
or firms which will be Underwriters, the principal amount of the Securities to
be purchased by each Underwriter, the purchase price to be paid by the
Underwriters for the Securities, the public offering price, if any, of the
Securities, whether the Underwriters are authorized to solicit institutional
investors to purchase Securities pursuant to Delayed Delivery Contracts, certain
terms thereof and the Underwriters' compensation therefor, and any terms of the
Securities not otherwise specified in the Indenture (including, but not limited
to, designations, denominations, currencies, interest rates and payment dates,
maturity, redemption provisions and sinking fund requirements). The Terms
Agreement specifies any details of the terms of the offering that should be
reflected in a post-effective amendment to the Registration Statement, any
Preliminary Final Prospectus or the Final Prospectus (each as hereafter
defined). The obligations of the Underwriters under each Terms Agreement shall
be several and not joint.
If so authorized in the Terms Agreement, the Underwriters may solicit
offers from investors of the types set forth in the Prospectus to purchase
Securities from the Company pursuant to delayed delivery contracts ("Delayed
Delivery Contracts"). Such contracts shall be substantially in the form of
Exhibit A hereto but with such changes therein as the Company may approve.
Securities to be purchased pursuant to Delayed Delivery Contracts are herein
called "Contract Securities." When Delayed Delivery Contracts are authorized in
the Terms Agreement, the Company will enter into a Delayed Delivery Contract in
each case where a sale of Contract Securities arranged through the
Representative has been approved by the Company but, except as the Company may
otherwise agree, such Delayed Delivery Contracts must be for at least the
minimum amount of Contract Securities set forth in the Terms Agreement, and the
aggregate amount of Contract Securities may not exceed the amount set forth in
the Terms Agreement. The Company will advise you not later than 10:00 AM, New
York City time, on the
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third full business day preceding the Closing Date (or at such later time as you
may otherwise agree) of the sales of the Contract Securities which have been so
approved. The Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts.
If the Delayed Delivery Contracts are executed, valid and fully
performed, the Securities delivered pursuant to them shall be deducted from the
Securities to be purchased by the Underwriters and the aggregate principal
amount of Securities to be purchased by each Underwriter shall be reduced pro
rata in proportion to the principal amount of Securities set forth opposite each
Underwriter's name in the Terms Agreement, except to the extent that the
Representative determines that such reduction shall be otherwise than in such
proportion and so advise the Company and the Guarantor in writing; provided,
however, that the total principal amount of Securities to be purchased by all
Underwriters shall be the aggregate principal amount set forth in the Terms
Agreement, less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made on the date and at the time specified in the Terms Agreement (the
"Closing Date"), which Closing Date may be postponed by agreement between the
Representative 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.
The Company shall pay to the Representative on the Closing Date for
the accounts of the Underwriters any fee, commission or other compensation
specified in the Terms Agreement. Such payment will be made by wire transfer
payable in same-day funds to an account specified by the Representative.
4. 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 Final Prospectus.
5. Agreements. The Company and the Guarantor agree with the several
Underwriters that:
(a) The Company and the Guarantor will use their best efforts to
cause the Registration Statement, if not effective at the Execution Time,
and any amendment thereof, to become effective. Prior to the termination
of the offering of the Securities, neither the Company nor the Guarantor
will file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final
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Prospectus) to the Base Prospectus or any Rule 462(b) Registration
Statement unless either the Company or the Guarantor has furnished the
Representative of the Underwriters a copy for their review prior to filing
and will not file any such proposed amendment or supplement to which they
reasonably object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or filing
of the Final Prospectus is otherwise required under Rule 424(b), the
Company and the Guarantor will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed in a form approved by
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 and the Guarantor will promptly advise the Representative (1)
when the Registration Statement, if not effective at the Execution Time,
shall have become effective, (2) when the Final Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4) 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 Final Prospectus or for any additional information,
(5) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Company or the Guarantor 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 and the Guarantor will use their best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, 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 or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company and the Guarantor promptly will (1) notify the Representative of
such event, (2) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Final Prospectus to the
Representative in such quantities as the Representative may reasonably
request.
(c) As soon as practicable, the Guarantor will make generally
available to the Company's security holders and to the Representative an
earnings statement or statements of the Company and the Guarantor which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
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(d) The Company and the Guarantor 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, as many copies of each Preliminary
Final Prospectus and the Final 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.
(e) The Company and the Guarantor will arrange, if necessary, for
the qualification of the Securities for sale under the laws of such
jurisdictions as the Representative may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities and will pay any fee of the National Association of Securities
Dealers, Inc., in connection with its review of the offering; provided
that in no event shall the Company or the Guarantor 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.
(f) The Company and the Guarantor will not, without the prior
written consent of the Representative, 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 securities, including any backup undertaking for
such securities, of the Company, in each case that are substantially
similar to the Securities or any security convertible into or exchangeable
for the Securities or such substantially similar securities, or publicly
announce an intention to effect any such transaction, during the period
beginning the date of the Terms Agreement and ending the Closing Date.
(g) The Company and the Guarantor will comply with all applicable
securities and other laws, rules and regulations, including, without
limitation, the Sarbanes Oxley Act, and use their best efforts to cause
the Company's or the Guarantor's, as the case may be, 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.
(h) Neither the Company nor the Guarantor will 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.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations
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and warranties on the part of the Company and the Guarantor contained herein as
of the Execution Time and the Closing Date, to the accuracy of the statements of
the Company and the Guarantor made in any certificates pursuant to the
provisions hereof, to the performance by the Company and the Guarantor of their
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representative agrees in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company and the Guarantor shall have requested and caused
Xxxx X. Xxx, Esq., counsel for the Company and the Guarantor, to have
furnished to the Representative the opinion, dated the Closing Date and
addressed to the Representative, to the effect that:
(i) each of the Company and the Guarantor has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with full
corporate power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described
in the Final Prospectus,
(ii) each of the Company and the Guarantor is duly qualified
to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which it owns or leases
substantial properties or which requires such qualification;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor, has been duly qualified
under the Trust Indenture Act and constitutes a legal, valid and
binding instrument enforceable against the Company and the Guarantor
in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant
to the Terms Agreement (and, in the case of
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any Contract Securities, pursuant to the Delayed Delivery Contracts
with respect thereto), will constitute legal, valid and binding
obligations of the Company enforceable in accordance with their
terms and entitled to the benefits of the Indenture, including the
Guarantee set forth in the Indenture, and such Guarantee constitutes
the valid and binding obligation of the Guarantor enforceable in
accordance with its terms;
(v) the Guarantee has been duly authorized and, when the
Securities have been executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to the Terms Agreement (and, in the case of
any Contract Securities, pursuant to the Delayed Delivery Contracts
with respect thereto), will constitute a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms
and entitled to the benefits of the Indenture;
(vi) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company, the Guarantor or their respective property of a
character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a character required
to be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit thereto, which is not described or
filed as required;
(vii) the Indenture conforms in all material respects to the
description thereof in the Prospectus;
(viii) the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and the Guarantor;
(ix) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required for the
consummation by the Company and the Guarantor of the transactions
contemplated herein, in any Delayed Delivery Contract or in the
Indenture, except such as have been obtained under the Act and the
Trust Indenture Act and such as may be required under the securities
or blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated by the Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts, and in the Final
Prospectus and such other approvals (specified in such opinion) as
have been obtained;
(x) neither the execution, delivery and performance of the
Indenture, the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts, nor the issue and
sale of the Securities in compliance with the terms and provisions
thereof will conflict with, constitute a default under, or result in
a breach or violation of, or imposition of any lien, charge or
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encumbrance upon any property or assets of the Company or the
Guarantor pursuant to, (i) the charter or by-laws of the Company,
the Guarantor or any material subsidiary of the Company or the
Guarantor, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
the Company, the Guarantor or any material subsidiary of the Company
or the Guarantor is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company, the Guarantor
or any material subsidiary of the Company or the Guarantor of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or the Guarantor or any of their properties, except that no opinion
shall be expressed with respect to (x) the rights to indemnity and
contribution contained in the Terms Agreement (including the
provisions of this Agreement) which may be limited by federal or
state securities laws or the public policy underlying such laws or
(y) any state securities or blue sky laws; and
(xi) the Registration Statement has become effective under the
Act; any required filing of the Base Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of
the Act, the Exchange Act and the Trust Indenture Act and the
respective rules and regulations thereunder; and such counsel has no
reason to believe that on the Effective Date or the date the
Registration Statement was last deemed amended the Registration
Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus as of its date and on the Closing Date included or
includes any untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion);
(xii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus, will not be
an "investment company" as defined in the Investment Company Act of
1940, as amended;
(xiii) no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement.
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In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and the Guarantor and public officials. References
to the Final Prospectus in this paragraph (b) shall also include any
supplements thereto at the Closing Date.
(c) 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 Indenture, the
Registration Statement, 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.
(d) The Company and the Guarantor shall have furnished to the
Representative a certificate of the Company and the Guarantor, signed by
the Chairman of the Board or the President and the principal financial or
accounting officer of the Company and the Guarantor, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any supplements
to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the
Guarantor 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 and the Guarantor have complied with all the agreements
and satisfied all the conditions on their part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the Company and
the Guarantor, 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 change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Guarantor, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive
of any supplement thereto).
(e) The Guarantor shall have requested and caused KPMG LLP to have
furnished to the Representative, at the Closing Date, a customary "comfort
letter" (which may refer to letters previously delivered to the
Representative), dated as of the Closing Date, that is satisfactory in
content and form to the Representative.
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(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 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 or the Guarantor, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in 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, 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) and the Final Prospectus (exclusive
of any supplement thereto).
(g) Subsequent to the Execution Time, 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.
(h) Prior to the Closing Date, the Company and the Guarantor 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 6 shall not have
been fulfilled when and as provided in this Agreement with respect to an
offering of 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. Notice of such cancelation shall be given to the Company and the
Guarantor in writing or by telephone 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
Underwriters, at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 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 Citigroup Global Markets Inc. 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.
11
8. Indemnification and Contribution.
(a) The Company and the Guarantor agree to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents
of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities as originally filed or in
any amendment thereof, or in the Base Prospectus, any Preliminary Final
Prospectus or the Final 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 and the Guarantor 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 or the Guarantor by or on behalf of any Underwriter through the
Representative specifically for inclusion therein. This indemnity
agreement will be in addition to any liability that the Company and the
Guarantor may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company and the Guarantor, each of their respective
directors, each of their respective officers who signs the Registration
Statement, and each person who controls the Company or the Guarantor
within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Guarantor to
each Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company or the Guarantor 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 and the Guarantor acknowledge
that the statements set forth in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading "Underwriting"
or "Plan of Distribution", (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in
12
respect thereof is to be made against the indemnifying party under this
Section 8, 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 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company, the Guarantor
and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company, the Guarantor and one or
more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Guarantor on the one hand and by the Underwriters on the other from
the offering of the Securities; provided, however, that in no case shall
(i) any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the 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
13
unavailable for any reason, the Company, the Guarantor and the
Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Guarantor on the one hand and of the
Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and the Guarantor shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by the Company, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of
the Final Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of
a material fact or the omission or alleged omission to state a material
fact relates to information provided by the Company and the Guarantor on
the one hand or the Underwriters on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company, the
Guarantor 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 8, 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 or the Guarantor, as applicable, within the meaning
of either the Act or the Exchange Act, each officer of the Company or the
Guarantor, as applicable, who shall have signed the Registration Statement
and each director of the Company or the Guarantor, as applicable, shall
have the same rights to contribution as the Company or the Guarantor, as
applicable, subject in each case to the applicable terms and conditions of
this paragraph (d).
9. 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 principal amount of
Securities set forth opposite their names in the Terms Agreement bears to the
aggregate principal amount 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 principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in the Terms Agreement,
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, the Company
or the Guarantor. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business
14
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, the
Guarantor and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice given to the Company
and the Guarantor prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Guarantor'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, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, the Guarantor or their respective 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 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Company or the Guarantor, will be mailed,
delivered or telefaxed to [Citi's fax number] and confirmed to it at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of the Legal Department.
13. 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 8 hereof, and no other person will have any right or obligation
hereunder.
14. 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.
15
15. 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.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. 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 prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"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.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement 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.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Base Prospectus.
"Guarantee" shall have the meaning set forth in the Registration
Statement under "Description of Debt Securities - Citigroup Guarantees."
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Base Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Base Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any
16
Rule 462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
17
EXHIBIT A
CITIGROUP FUNDING INC.
[INSERT SPECIFIC TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]*
CITIGROUP FUNDING INC.
c/o
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Citigroup Funding
Inc. (hereinafter called the "Company"), and the Company agrees to sell to the
undersigned, as of the date hereof,
[If one delayed closing, insert the following:
for delivery on , 20__ (the "Delivery Date"), $ aggregate
principal amount of]
[If two or more delayed closings, insert the following:
for delivery on the dates and in the aggregate principal amount set forth below
(each of which dates is hereinafter referred to as a "Delivery Date"),]
the Company's [insert title of Securities] (the "Securities"), offered by the
Company's Prospectus relating thereto, receipt of a copy of which is hereby
acknowledged, at a purchase price of ___% of the aggregate principal amount
thereof plus accrued interest, if any, and on the further terms and conditions
set forth in this contract.
[If two or more delayed closings, insert the following:
Delivery Date Aggregate Principal
Amount
_____________ ___________________
_____________ ___________________]
Delivery of and payment for the Securities shall be made on [the]
[each] Delivery Date. Delivery of the Securities shall be made to the
undersigned against payment 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 undersigned shall
otherwise instruct.
----------------
* To be completed when the Terms Agreement is executed by the parties thereto.
Ex. A-1
The obligation of the undersigned to take delivery of, and make
payment for, Securities on [the] [each] Delivery Date shall be subject to the
conditions that (i) investment in the Securities shall not at such Delivery Date
be prohibited under the laws of any jurisdiction in the United States to which
the undersigned is subject, which investment the undersigned represents is not
prohibited on the date hereof, and (ii) the Company shall have delivered to the
Underwriters the aggregate principal amount of the Securities to be purchased by
them pursuant to the Underwriting Agreement referred to in the Prospectus.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company and the Guarantor delivered to the Underwriters in connection therewith.
This contract shall inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of this contract and any other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned when such counterpart is mailed or
delivered.
THIS CONTRACT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
[NAME OF PURCHASER]
By: ____________________________
Name:
Title:
Address:
Accepted as of the above date.
CITIGROUP FUNDING INC.
By: _____________________________
Name:
Title:
Ex. A-2
