Attached files
| file | filename |
|---|---|
| 8-K - CURRENT REPORT - CITIGROUP INC | v177577_8k.htm |
| EX-4.1 - AMENDED AND RESTATED DECLARATION OF TRUST - CITIGROUP INC | v177577_ex4-1.htm |
| EX-99.1 - OPINION REGARDING CERTAIN TAX MATTERS - CITIGROUP INC | v177577_ex99-1.htm |
EXHIBIT
1.1
80,000,000
CAPITAL SECURITIES
CITIGROUP
CAPITAL XII
8.500%
Fixed Rate/Floating Rate Trust Preferred Securities (TruPS®)
$25
Liquidation Amount
Guaranteed
to the extent set forth in the
Prospectus
dated March 9, 2010 by
CITIGROUP
INC.
UNDERWRITING
AGREEMENT
New York,
New York
March
10, 2010
Citigroup
Global Markets Inc.
Banc of
America Securities LLC
J.P.
Morgan Securities Inc.
Morgan
Stanley & Co. Incorporated
UBS
Securities LLC
Wells
Fargo Securities, LLC,
as
Representatives of the several Underwriters
c/o
Citigroup Global Markets Inc.
388
Greenwich Street
New York,
New York 10013
Ladies
and Gentlemen:
Citigroup
Capital XII (the “Trust”), a statutory trust organized under the Statutory Trust
Act (the “Delaware Act”) of the State of Delaware (Chapter 38, Title 12, of the
Delaware Business Code, 12 Del. C. §3801 et seq.), proposes, upon the
terms and conditions set forth herein, to issue and sell 80,000,000 8.500% Fixed
Rate/Floating Rate Trust Preferred Securities (TruPS®) with an
aggregate liquidation amount equal to $2,000,000,000 (the “Underwritten
Securities”) to the several Underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the “Representatives”) are acting as
representatives. The Trust also proposes to grant the Underwriters an
option to purchase 12,000,000 additional 8.500% Fixed Rate/Floating Rate Trust
Preferred Securities (TruPS®) to
cover over-allotments (the “Option Securities” and, together with the
Underwritten Securities, the “Capital Securities”).
The
Capital Securities and the Common Securities (as defined herein) are to be
issued pursuant to the terms of an amended and restated declaration of trust,
dated as of March 17, 2010 (the “Declaration”), among Citigroup Inc., a Delaware
corporation (the “Company” and, together with the Trust, the “Offerors”), as
sponsor, the trustees named therein (the “Citigroup Capital Trustees”) and the
holders from time to time of undivided beneficial interests in the assets of the
Trust. The Declaration is qualified as an indenture under the Trust
Indenture Act. Pursuant to the Declaration, the number of Citigroup
Capital Trustees will initially be five.
Three of
the Citigroup Capital Trustees (the “Regular Trustees”) will be persons who are
employees or officers of the Company. The fourth Citigroup Capital
Trustee will be a financial institution unaffiliated with the Company that will
serve as property trustee under the Declaration and as indenture trustee with
respect to the Capital Securities for purposes of the Trust Indenture Act (the
“Institutional Trustee”). The fifth Citigroup Capital Trustee will be
a financial institution or an affiliate thereof which maintains a principal
place of business in the State of Delaware, meeting the requirements of the
Delaware Act (the “Delaware Trustee”). Initially, The Bank of New
York Mellon, a New York banking association (“BoNY”), will act as the
Institutional Trustee and BNY Mellon Trust of Delaware, a banking association
with its principal place of business in the State of Delaware, will act as the
Delaware Trustee until removed or replaced by the holder of the Common
Securities. The Capital Securities will be guaranteed by the Company
on a subordinated basis with respect to distributions and payments upon
liquidation, redemption or otherwise (the “Guarantee”) pursuant to the Capital
Securities Guarantee Agreement dated as of March 17, 2010 (the “Guarantee
Agreement”) between the Company and BoNY, as Trustee (the “Guarantee
Trustee”).
The
assets of the Trust will consist of 8.500% Fixed Rate/Floating Rate Junior
Subordinated Deferrable Interest Debentures due March 30, 2040 (the
“Subordinated Debentures”) of the Company which will be issued under an
indenture, dated as of July 23, 2004 (as supplemented, the “Indenture”), between
the Company and BoNY, as Trustee (the “Indenture Trustee”). Under
certain circumstances, the Subordinated Debentures will be distributable to the
holders of undivided beneficial interests in the assets of the
Trust. The Capital Securities, the Guarantee and the Subordinated
Debentures are referred to herein as the “Securities.”
The
Offerors wish to confirm as follows their agreement with you and the other
several Underwriters listed on Schedule I on whose behalf you are acting, in
connection with the several purchases of the Capital Securities by the
Underwriters. To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. Any
reference herein to the Registration Statement, any Preliminary Prospectus or
the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of any Preliminary Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any
Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of any Preliminary
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are
defined in Section 21 hereof.
1. Registration Statement and
Prospectus. The Offerors meet the requirements for use of Form
S-3 under the Act and have prepared and filed with the Commission an automatic
shelf registration statement, as defined in Rule 405 (File No. 333- 157459),
including a related form of prospectus, for registration under the Act of the
offering and sale of the Securities. Such Registration Statement,
including any amendments thereto filed prior to the date hereof, became
effective upon filing. The Offerors may have filed with the
Commission,
as part of an amendment to the Registration Statement or pursuant to Rule
424(b), one or more preliminary prospectuses relating to the Securities, each of
which has previously been furnished to you. The Company will file
with the Commission a final prospectus relating to the Securities in accordance
with Rule 424(b). As filed, such final prospectus shall contain all
information required by the Act and the rules thereunder. The
Registration Statement, as of the date hereof, meets the requirements set forth
in Rule 415(a)(1)(x). The initial Effective Date of the Registration
Statement was not earlier than the date three years before the date
hereof.
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2. Agreements to Sell and
Purchase. (a) The Trust hereby agrees, subject to all the
terms and conditions set forth herein, to issue and sell to each Underwriter
and, upon the basis of the representations, warranties and agreements of the
Offerors herein contained and subject to all the terms and conditions set forth
herein each Underwriter agrees, severally and not jointly, to purchase from the
Trust, at a purchase price of $25 per Capital Security, the number of
Underwritten Securities set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Capital Securities increased as set forth
in Section 11 hereof).
The
Company agrees that, in view of the fact that the proceeds of the sale of the
Underwritten Securities will be invested in the Subordinated Debentures, it
shall pay to the Underwriters as compensation (“Underwriters’ Compensation”) for
their arranging the investment of the proceeds therein, on the Closing Date (as
defined herein), $0.7875 per Underwritten Security; provided, however, that with
respect to sales made by the Underwriters to certain institutional purchasers
(the “Institutional Purchasers”), the Company agrees to pay Underwriters’
Compensation of $0.5000 per Underwritten Security. The
Representatives confirm to the Offerors that for this purpose, the number of
Underwritten Securities sold to Institutional Purchasers is
58,918,000.
Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Trust hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to 12,000,000 Option
Securities at the same purchase price per share as the Underwriters shall pay
for the Underwritten Securities. Said option may be exercised in
whole or in part at any time (but not more than once) on or before the 30th day
after the date of the initial public offering, upon written or facsimile notice
by Citigroup Global Markets Inc. to the Trust setting forth the number of Option
Securities as to which the several Underwriters are exercising the option and
the date on which delivery and payment shall occur, which shall not be less than
three Business Days after the date of the notice of exercise. The
number of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as Citigroup Global Markets Inc., in its
absolute discretion, shall make to eliminate any fractional shares.
3. Terms of Public
Offering. The Offerors have been advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Capital Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered, and the Declaration, the Guarantee
Agreement and the Indenture have been qualified under the Trust Indenture
Act. The entire proceeds from the sale of the Capital Securities
will be combined with the entire proceeds from the sale by the Trust to the
Company of its common securities (the “Common Securities”), and will be used by
the Trust to purchase an equivalent amount of the Subordinated
Debentures.
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4. Delivery of the Capital
Securities and Payment Therefor. Delivery to the Underwriters
of, and payment for, the Capital Securities shall be made at the office of
Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York
10006, at 8:30 A.M., New York City time, on March 17, 2010 (the “Closing
Date”). Delivery to the Underwriters of, and payment for,
the Optional Securities (if the option provided for in Section 2(b) hereof is
exercised) shall be made on the date and at the time specified in the notice of
exercise of the option, which shall not be less than three Business Days after
the date of the notice. The place of closing for the Capital
Securities and the Closing Date may be varied by agreement between you and the
Company.
Delivery
of the Capital Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters directly or through the Representatives of the net purchase price
thereof to or upon the order of the Trust by wire transfer payable in same-day
funds to an account specified by the Trust. Delivery of the Capital
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
It is
understood that the Representatives, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to the
Company on behalf of any other Underwriter for Capital Securities to be
purchased by such Underwriter. Any such payment by the
Representatives shall not relieve any such Underwriter of any of its obligations
hereunder.
The
Company shall pay to the Representatives on the Closing Date for the accounts of
the Underwriters any fee, commission or other compensation specified
herein. Such payment will be made by wire transfer payable in
same-day funds to an account specified by the Representatives.
5. Agreements of the
Offerors. The Offerors jointly and severally agree with the
several Underwriters that:
(a) Prior
to the termination of the offering of the Securities, the Offerors will not file
any amendment of the Registration Statement or supplement to any Preliminary
Prospectus or the Final Prospectus unless the Company has furnished Citigroup
Global Markets Inc. a copy for its review prior to filing and will not file any
such proposed amendment or supplement to which it reasonably
objects. The Offerors will cause the Final Prospectus, properly
completed, and any supplement thereto, to be filed in a form acceptable to
Citigroup Global Markets Inc. with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when
the Final Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (2) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (3) of any request by the Commission
or its staff for any amendment of the Registration Statement, or for any
supplement to the Final Prospectus or for any additional information, (4) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any notice objecting to its use or the institution
or threatening of any proceeding for that purpose and (5) of the receipt by the
Offerors of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Offerors will use their
respective 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.
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(b) The
Offerors will prepare a final term sheet, containing solely a description of
final terms of the Capital Securities and the offering thereof, in a form
acceptable to Citigroup Global Markets Inc. (the “Final Term Sheet”) and to file
such term sheet pursuant to Rule 433(d) within the time required by such
Rule.
(c) If,
at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b),
any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made at such time not misleading, the Offerors will (1) promptly
notify the Representatives so that any use of the Disclosure Package may cease
until it is amended or supplemented; (2) amend or supplement the Disclosure
Package to correct such statement or omission; and (3) supply any amendment
or supplement to you in such quantities as you may reasonably
request.
(d) If,
at any time when a prospectus relating to the Capital Securities is required to
be delivered under the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement,
file a new registration statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, including
in connection with use or delivery of the Final Prospectus, the Company will
promptly (i) notify the Representatives of such event, (ii) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 5, an amendment or supplement or new registration
statement which will correct such statement or omission or effect such
compliance, (iii) use its best efforts to have any amendment to the Registration
Statement or new registration statement declared effective as soon as
practicable and (iv) supply any supplemented Final Prospectus
to the Representatives in such quantities as the Representatives may reasonably
request.
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(e) As
soon as practicable, the Offerors will make generally available to the Trust’s
security holders and to the Representatives a consolidated earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158.
(f) Upon
request, the Offerors will furnish to the Representatives and counsel for the
Underwriters, without charge, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies of
any Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Offerors will pay the expenses of printing or other
production of all documents relating to the offering that are required to be
prepared, furnished or delivered by the Offerors.
(g) The
Offerors will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions within the United States as Citigroup
Global Markets Inc. 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 Offerors be obligated either to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(h) (i)
Each Offeror agrees that, unless it has obtained or will obtain, as the case may
be, the prior written consent of the Representatives, and (ii) each Underwriter,
severally and not jointly, agrees with the Offerors that, unless it has obtained
or will obtain, as the case may be, the prior written consent of the Offerors,
it has not made and will not make any offer relating to the Capital Securities
that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be
filed by the Offerors with the Commission or retained by the Offerors under Rule
433, other than the Final Term Sheet described above or other free writing
prospectuses containing solely a description of the final terms of the Capital
Securities and the offering thereof. Any such free writing prospectus
consented to by the Representatives or the Offerors is hereinafter referred to
as a “Permitted Free Writing Prospectus.” Each Offeror agrees that (x) it has
treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
(i) The
Offerors will not, without the prior written consent of Citigroup Global Markets
Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected to,
result in the
disposition (whether by actual disposition or effective economic disposition due
to cash settlement or otherwise) by the Company, the Trust or any affiliate of
the Company, except any broker-dealer affiliate, or the Trust or any person in
privity with the Company, the Trust or any affiliate of the Company, except any
broker-dealer affiliate, or the Trust) directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Exchange Act, any preferred securities, any preferred stock or any
other securities including any guarantee of such securities (other than a
guarantee of securities issued by Citigroup Funding Inc.), of the Offerors, in
each case that are substantially similar to the Capital Securities or any
security convertible into or exchangeable for the Capital Securities or such
substantially similar securities, or publicly announce an intention to effect
any such transaction, during the period beginning the date hereof and ending on
the Closing Date.
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(j) The
Trust will apply the net proceeds from the sale of the Capital Securities, and
the Company will apply the net proceeds from the sale of the Subordinated
Debentures, substantially in accordance with the description set forth in the
Final Prospectus.
(k) The
Company will comply with all applicable securities and other laws, rules and
regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and
use its best efforts to cause the Company’s directors and officers, in their
capacities as such, to comply with such laws, rules and regulations, including,
without limitation, the provisions of the Sarbanes Oxley Act of
2002.
(l) The
Offerors will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of either of the Offerors to facilitate the sale or resale of
the Capital Securities, except that the Offerors makes no agreement as to the
activities of any Underwriter.
6. Representations and
Warranties of the Offerors. The Offerors jointly and severally
represent and warrant to, and agree with, each Underwriter that:
(a) On
each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing
Date, the Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the Exchange Act
and the Trust Indenture Act and the respective rules thereunder; on each
Effective Date and on the date hereof, the Registration Statement did not and
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and on the Effective Date and on the Closing
Date, the Indenture and the Declaration did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act and the
rules thereunder; on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any supplement thereto) will
not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that
the Offerors make no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Citigroup Capital
Trustees or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Offerors by or on
behalf of any Underwriter through the Representatives specifically for inclusion
in the Registration Statement or the Final Prospectus (or any supplement
thereto), it being understood and agreed that the only such information
furnished by or on behalf of any Underwriters consists of the information
described as such in Section 7 hereof.
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(b) The
execution and delivery of, and the performance by the Company and the Trust of
their respective obligations under, this Agreement have been duly and validly
authorized by the Company and the Trust, respectively, and this Agreement has
been duly executed and delivered by the Company and the Trust.
(c) The
Capital Securities have been duly and validly authorized by the Declaration and,
when executed by the Trust and authenticated by the Institutional Trustee in
accordance with the Declaration and delivered to you against payment therefor in
accordance with the terms hereof, will be validly issued and (subject to
Sections 9.8 and 3.10(a)(vi) of the Declaration) will be fully paid and
non-assessable undivided beneficial interests in the assets of the Trust, will
be entitled to the benefits of the Declaration and will conform in all material
respects to all statements relating thereto contained in the Registration
Statement, the Disclosure Package and the Final Prospectus, and any amendment or
supplement thereto; the issuance of the Capital Securities is not subject to
preemptive or other similar rights; holders of Capital Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit under the General Corporation Law of the
State of Delaware; and the Capital Securities have been registered under the
Exchange Act.
(d) The
Declaration has been duly and validly authorized by the Company and, at the
Closing Date, will have been duly executed and delivered by the Company and the
Regular Trustees, and assuming due execution and delivery by the Institutional
Trustee and the Delaware Trustee, the Declaration will be a valid and legally
binding obligation of the Company and the Regular Trustees, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors’ rights
generally and general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity); and the Declaration has been
(or will have been) duly qualified under the Trust Indenture Act and conforms in
all material respects to the description thereof in the Registration Statement,
the Disclosure Package and the Final Prospectus, and any amendment or supplement
thereto.
(e) The
Guarantee has been duly and validly authorized by the Company and, at the
Closing Date, will have been duly executed and delivered by the Company, and
assuming
due execution and delivery by the Guarantee Trustee, the Guarantee will be a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting creditors’ rights generally and
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity); and the Guarantee has been (or will have
been) duly qualified under the Trust Indenture Act and conforms in all material
respects to the description thereof in the Registration Statement, the
Disclosure Package and the Final Prospectus, and any amendment or supplement
thereto.
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(f) The
Indenture has been duly and validly authorized by the Company, has been duly
executed and delivered by the Company and the Indenture Trustee, and is a valid
and legally binding obligation of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting creditors’ rights generally and
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity); and the Indenture has been duly qualified
under the Trust Indenture Act and conforms in all material respects to the
description thereof in the Registration Statement, the Disclosure Package and
the Final Prospectus, and any amendment or supplement thereto.
(g) The
Subordinated Debentures have been duly and validly authorized by the Company
and, when authenticated by the Indenture Trustee in the manner provided for in
the Indenture and issued in accordance with the Indenture and delivered to the
Trust against payment therefor as described in the Registration Statement, the
Disclosure Package and the Final Prospectus, and any amendment or supplement
thereto, will be valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws affecting creditors’
rights generally, and general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity), and will be
in the form contemplated by, and entitled to the benefits of, the Indenture and
conform in all material respects to the description thereof in the Registration
Statement, the Disclosure Package and the Final Prospectus, and any amendment or
supplement thereto.
(h) The
Trust has been duly created and is validly existing and in good standing as a
statutory trust under the Delaware Act with the power and authority to own
property and to conduct its business as described in the Registration Statement
and Final Prospectus, and any amendment or supplement thereto, and to enter into
and perform its obligations under this Agreement, the Capital Securities and the
Declaration and is not required to be authorized to do business in any other
jurisdiction; the Trust is not a party to or otherwise bound by any agreement
other than those described in the Final Prospectus, and any amendment or
supplement thereto; the Trust will be classified as a grantor trust and not as
an association taxable as a corporation for U.S. federal income tax purposes;
and the Trust is and will be treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(i) The
Regular Trustees of the Trust are officers of the Company and have been duly
authorized by the Company to execute and deliver the Declaration.
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(j) Neither
the Trust nor the Company is now, nor after giving effect to the transactions
contemplated hereby will be, and neither the Trust nor the Company is controlled
by, or acting on behalf of any person which is, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended.
(k) As
of the date hereof, the Disclosure Package does not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Offerors by any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 7
hereof.
(l) (i)
At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of
the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) on the date hereof (with such date being used as the
determination date for purposes of this clause (iii)), each of the Offerors was
or is (as the case may be) a “well-known seasoned issuer” as defined in Rule
405. The Offerors agree to pay the fees required by the Commission
relating to the Capital Securities within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance with Rules
456(b) and 457(r).
(m) (i)
At the earliest time after the filing of the Registration Statement that the
Offerors or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2)) of the Capital Securities and (ii) as of the date
hereof (with such date being used as the determination date for purposes of this
clause (ii)), neither of the Offerors was or is an Ineligible Issuer (as defined
in Rule 405), without taking account of any determination by the Commission
pursuant to Rule 405 that it is not necessary that the Offerors be considered
Ineligible Issuers.
(n) Neither
any Issuer Free Writing Prospectus nor the Final Term Sheet includes any
information that conflicts with the information contained in the Registration
Statement, including any document incorporated therein and any prospectus
supplement deemed to be a part thereof that has not been superseded or
modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus nor the Final Term Sheet based
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section 7
hereof.
Any
certificate signed by any officer of the Company or trustee of the Trust and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Capital Securities shall be deemed a representation and
warranty by either the Company or the Trust, as the case may be, as to matters
covered thereby, to each Underwriter.
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7. Indemnification and
Contribution.
(a) Each
of the Trust and the Company jointly and severally agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any amendment
thereof, or in any Preliminary Prospectus, the Final Prospectus, the Disclosure
Package, any Issuer Free Writing Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
neither the Company nor the Trust will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Offerors by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which either the
Company or the Trust may otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless each
of the Company, the Trust, the Company’s directors, the Company’s officers and
the Regular Trustees who sign the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company and the Trust to
each Underwriter, but only with reference to written information furnished to
the Offerors by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any
liability that any Underwriter may otherwise have. The Offerors
acknowledge that the statements set forth in the last paragraph of the cover
page regarding delivery of the Capital Securities and, under the heading
“Underwriting”, (i) the list of Underwriters and their respective participation
in the sale of the Capital Securities, (ii) the sentences related to concessions
and reallowances and (iii) the paragraph related to over-allotment,
stabilization and syndicate covering transactions and penalty bids in any
Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus or the
Final Prospectus and any Issuer Free Writing Prospectus.
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(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or 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.
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(d) In
the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company, the Trust and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively “Losses”) to which the
Company, the Trust and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company
and the Trust on the one hand and by the Underwriters on the other from the
offering of the Capital Securities; provided, however, that in no
case shall (i) any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Capital Securities) be responsible
for any amount in excess of the underwriting discount or commission applicable
to the Capital Securities purchased by such Underwriter hereunder. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company, the Trust and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Trust on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
and the Trust shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by the Trust, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company and the Trust on
the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company, the Trust and
the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section 11
(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company, as applicable, within the meaning of
either the Act or the Exchange Act, each officer of the Company and the Regular
Trustees who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company and the
Trust, subject in each case to the applicable terms and conditions of this
paragraph (d).
8. Conditions of the
Underwriters’ Obligations. The obligations of the several
Underwriters to purchase the Capital Securities shall be subject to the accuracy
of the representations and warranties on the part of the Offerors contained
herein as of the date hereof and the Closing Date (in each case, to the extent
such representations and warranties are applicable as of such date), to the
accuracy of the statements of the Offerors made in any certificates pursuant to
the provisions hereof, to the performance by each of the Offerors of its
obligations hereunder and to the following additional conditions:
(a) The
Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); the Final Term Sheet
contemplated by Section 5(b) hereto, and any other material required to be filed
by the Offerors
pursuant to Rule 433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and
no stop order suspending the effectiveness of the Registration Statement or any
notice objecting to its use shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
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(b) The
Offerors shall have requested and caused Skadden, Arps, Slate, Meagher &
Flom LLP, special counsel to the Offerors, to have furnished to the
Representatives an opinion, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Capital
Securities, the Indenture, the Subordinated Debentures, the Declaration, the
Registration Statement, the Disclosure Package, the Final Prospectus (together
with any supplement thereto) and other related matters as the Representatives
may reasonably require. Insofar as such opinion involves factual
matters, such counsel may rely, to the extent such counsel deems proper, upon
certificates of officers of the Company, its subsidiaries and the Trust and
certificates of public officials.
(c) The
Offerors shall have requested and caused Michael J. Tarpley, Associate General
Counsel – Capital Markets of the Company, to have furnished to the
Representatives an opinion, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Capital
Securities, the Indenture, the Subordinated Debentures, the Declaration, the
Registration Statement, the Disclosure Package, the Final Prospectus (together
with any supplement thereto) and other related matters as the Representatives
may reasonably require.
(d) The
Offerors shall have requested and caused Skadden, Arps, Slate, Meagher &
Flom LLP, special tax counsel to the Offerors, to have furnished to the
Representatives an opinion, dated the Closing Date and addressed to the
Representatives, with respect to certain United States federal income tax matter
related to the Trust and the Subordinated Debentures and other related matters
as the Representatives may reasonably require.
(e) The
Offerors shall have requested and caused Emmet, Marvin & Martin, LLP,
counsel to BoNY, to have furnished to the Representatives an opinion or
opinions, dated the Closing Date and addressed to the Representatives, with
respect to the Institutional Trustee, the issuance and sale of the Capital
Securities and other related matters as the Representatives may reasonably
require.
(f) The
Representatives shall have received from Cleary Gottlieb Steen & Hamilton
LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and sale
of the Capital Securities, the Subordinated Debentures, the Indenture, the
Declaration, the Registration Statement, the Disclosure Package, the Final
Prospectus (together with any supplement thereto) and other related matters as
the Representatives may reasonably require, and the Offerors shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
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(g) The
Company shall have furnished to the Representatives a certificate of the Company
and the Trust, signed, in the case of the Company, by the Chairman, any Vice
Chairman, the President, any Vice President, the Chief Financial Officer, the
Chief Accounting Officer, the General Counsel, the Controller, any Deputy
Controller or the Treasurer and by any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company and, in the case of the Trust, signed by one
of the Regular Trustees, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Registration Statement, the
Final Prospectus, the Disclosure Package and any supplements or amendments
thereto, and this Agreement and that:
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(i)
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the
representations and warranties of each of the Company and the Trust in
this Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and each of the Company and the
Trust has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
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(ii)
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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
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(iii)
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since
the date of the most recent financial statements included or incorporated
by reference in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, including the Trust taken as a whole, or
the Trust, as the case may be, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
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(h) The
Company shall have requested and caused KPMG LLP to have furnished to the
Representatives, on and as of the date hereof and on and as of the Closing Date,
customary “comfort letters” that are satisfactory in content and form to
Citigroup Global Markets Inc.
(i) The
Offerors shall have requested and caused Richards, Layton & Finger, counsel
to BNY Mellon Trust of Delaware, to have furnished to the Representatives an
opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the Delaware Trustee, the issuance and sale of
the Capital Securities and other related matters as the Representatives may
reasonably require.
(j) Subsequent
to the date hereof or, if earlier, the dates as of which information is given in
the Registration Statement (exclusive of any amendment thereof), any Preliminary
Prospectus and the Final Prospectus (exclusive of any supplement thereto), there
shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (h) of this Section 8 or (ii) any change, or
any development
involving a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, including the Trust, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of
any supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of Citigroup Global Markets Inc.
after consultation with the Company, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Capital Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof), the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto) and any Issuer Free Writing
Prospectus.
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(k) Subsequent
to the date hereof, there shall not have been any decrease in the rating of the
Capital Securities or any of the Company’s senior or subordinated debt
securities by any “nationally recognized statistical rating organization” (as
defined for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible
change.
(l) The
Capital Securities shall have been registered under the Exchange
Act.
(m) The
Company shall have made application to list the Capital Securities on the New
York Stock Exchange.
(n) Prior
to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may
reasonably request.
If any of
the conditions specified in this Section 8 shall not have been fulfilled when
and as provided in this Agreement with respect to the offering of the Capital
Securities, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be reasonably satisfactory in form and
substance to Citigroup Global Markets Inc. 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
Citigroup Global Markets Inc.. Notice of such cancellation shall be
given to the Company in writing or by telephone or facsimile confirmed in
writing.
The
documents required to be delivered by this Section 8 shall be delivered at the
office of Cleary Gottlieb Steen & Hamilton LLP, counsel for the
Underwriters, at One Liberty Plaza, New York, New York 10006, by 8:30a.m. (New
York Time) on the Closing Date.
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9. Expenses. The
Company agrees to pay the following costs and expenses and all other costs and
expenses incident to the performance by it and by the Trust of its and the
Trust’s respective and joint obligations hereunder: (i) the preparation,
printing or reproduction, and filing with the Commission of the Registration
Statement (including financial statements and exhibits thereto), any Preliminary
Prospectus and the Final Prospectus (including filing fees), each amendment or
supplement to any of them, this Agreement, the Declaration, the Guarantee,
the
Indenture and the Statement of Eligibility and Qualification of each of the
Institutional Trustee, the Guarantee Trustee and the Indenture Trustee; (ii) the
printing (or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, any Preliminary Prospectus, the Final Prospectus, the documents
incorporated by reference in the Registration Statement, and all amendments or
supplements to any of them, as may be reasonably requested for use in connection
with the offering and sale of the Capital Securities; (iii) the preparation,
printing (or reproduction), execution and delivery of the Declaration, the
Guarantee and the Indenture and the preparation, printing, authentication,
issuance and delivery of the Securities, including any stamp taxes in connection
with the original issuance and sale of the Capital Securities; (iv) the printing
(or reproduction) and delivery of this Agreement and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Capital Securities; (v) the registration of the Securities under the
Exchange Act and the listing of the Capital Securities on the New York Stock
Exchange; (vi) the registration or qualification of the Securities for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing (or
reproduction), and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the filing fees and
the reasonable fees and expenses of counsel for the Underwriters in connection
with any filings required to be made with the Financial Industry Regulatory
Authority; (viii) the fees and expenses of the Institutional Trustee, the
Delaware Trustee, the Guarantee Trustee and the Indenture Trustee; (ix) the fees
and expenses associated with obtaining ratings for the Capital Securities from
nationally recognized statistical rating organizations; (x) the transportation
and other expenses incurred by or on behalf of representatives of the Offerors
(other than the Underwriters and their representatives) in connection with
presentations to prospective purchasers of the Capital Securities; and (xi) the
fees and expenses of the Company’s accountants and the fees and expenses of
counsel (including local and special counsel) for the Offerors.
10. Reimbursement of
Underwriters’ Expenses. If the sale of the Capital Securities
provided for herein is not consummated because any condition to the obligations
of the Offerors set forth in Section 8 hereof is not satisfied, because of any
termination pursuant to Section 11 hereof or because of any refusal, inability
or failure on the part of the Offerors to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through the
Representatives on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Capital
Securities.
11. Default by an
Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Capital Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of Capital
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Capital Securities set forth opposite the names of
all the remaining Underwriters) the Capital Securities which the defaulting
Underwriter or Underwriters agreed but
failed to purchase; provided,
however, that in the event that the aggregate principal amount of Capital
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate principal amount of Capital
Securities set forth in Schedule I hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Capital Securities, and if such nondefaulting Underwriters do not
purchase all the Capital Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Offerors. In the
event of a default by any Underwriter as set forth in this Section 11, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as Citigroup Global Markets Inc. shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Offerors and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
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12. Termination of
Agreement. This Agreement shall be subject to termination in
the absolute discretion of Citigroup Global Markets Inc., by notice given to the
Offerors prior to delivery of and payment for the Capital Securities, if at any
time prior to such time (i) trading in the Company’s common stock shall have
been suspended by the Commission or the New York Stock Exchange, or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of Citigroup Global Markets Inc. after
consultation with the Offerors, impractical or inadvisable to proceed with the
offering or delivery of the Capital Securities as contemplated by the Final
Prospectus (exclusive of any supplement thereto).
13. Representations and
Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Trust, the
Company or its officers or trustees and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Trust or the
Company or any of the officers, directors, trustees, employees, agents or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and
10 hereof shall survive the termination or cancellation of this
Agreement.
14. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Representatives, will be mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax no.: (212)
816-7912) and confirmed to the General Counsel, Citigroup Global Markets Inc.,
at 388 Greenwich Street, New York, New York, 10013,
Attention: General Counsel; if sent to the Company, or to the Trust
care of the Company, will be mailed, delivered or telefaxed to Citigroup
Inc.—Treasury Department, 153 E. 53rd Street, 6th Floor, New York, New York
10043 (fax no.: (212) 793-5629), with a copy to Citigroup Inc., One Court
Square, 45th Floor, Long Island City, New York 11120, Attn: Associate General
Counsel – Capital Markets (fax no.: (718) 248-2705).
15. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, trustees,
employees, agents and controlling persons referred to in Section 7 hereof, and
no other person will have any right or obligation hereunder.
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16. No Fiduciary
Duty. The Offerors hereby acknowledge that (i) the purchase
and sale of the Capital Securities pursuant to this Agreement is an arm’s-length
commercial transaction between the Company and the Trust, on the one hand, and
the Underwriters and any affiliate through which it may be acting, on the other,
(ii) the Underwriters are acting as principal and not as an agent or fiduciary
of the Offerors and (iii) the Trust’s engagement of the Underwriters in
connection with the offering and the process leading up to the offering is as
independent contractors and not in any other capacity.
Furthermore, each Offeror agrees that it is solely responsible for making its
own judgments in connection with the offering (irrespective of whether any of
the Underwriters has advised or is currently advising either Offeror on related
or other matters. Each Offeror agrees that it will not claim that the
Underwriters have rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to it, in connection with such transaction or
the process leading thereto.
17. Integration. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) among the Offerors and the Underwriters, or any of them, with respect to
the subject matter hereof.
18. Applicable
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
19. Counterparts. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
20. Headings. The
section headings used herein are for convenience only and shall not affect the
construction hereof.
21. Definitions. The
terms which follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the Securities Act of 1933, as amended and the rules and regulations
of the Commission promulgated thereunder.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Commission”
shall mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Preliminary Prospectus, if any, used most recently
prior to the date hereof, (ii) the Final Term Sheet described in Section
5(b) and (iii) any Free Writing Prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure
Package.
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“Effective
Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto became or become
effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Final
Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the date hereof.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement which is used prior
to filing of the Final Prospectus.
“Registration
Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule
424(b) and deemed part of such registration statement pursuant to Rule 430B, as
amended on each Effective Date and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended.
“Rule
163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B”
and “Rule 433” refer to such rules under the Act.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the
rules and regulations of the Commission promulgated thereunder.
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22. Selling
Restrictions:
European
Economic Area
The
Underwriters represent and agree that in relation to each Member State of the
European Economic Area which has implemented the Prospectus Directive (each, a
“Relevant Member State”), with effect from and including the date on which the
Prospectus Directive is implemented in that relevant member state (the “Relevant
Implementation Date”), an offer to the public of any Capital Securities which
are the subject of this offering may not be made in that Relevant
Member State prior to the publication of a prospectus in relation to such
Capital Securities that has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in another Relevant Member
State and notified to the competent authority in that Relevant Member State, all
in accordance with the Prospectus Directive, except that , with effect from and
including the Relevant Implementation Date, an offer to the public in that
Relevant Member State of any Capital Securities may be made at any
time:
(a) to
legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities;
(b) to
any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than €50,000,000,
as shown in its last annual or consolidated accounts;
(c) to
fewer than 100 natural or legal persons (other than qualified investors as
defined in the Prospectus Directive) subject to obtaining the prior consent of
Citigroup Global Markets Inc. for any such offer; or
(d) in
any other circumstances that do not require the publication of a prospectus
pursuant to Article 3 of the Prospectus Directive.
For the
purposes of this provision, the expression an “offer to the public” in relation
to any Capital Securities in any Relevant Member State means the communication
in any form and by any means of sufficient information on the terms of the offer
and any Capital Securities to be offered so as to enable an investor to decide
to purchase any Capital Securities, as the same may be varied in that Member
State by any measure implementing the Prospectus Directive in that Member State
and the expression “Prospectus Directive” means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member
State.
This EEA
selling restriction is in addition to any other selling restrictions set out
below.
United
Kingdom
Each
Underwriter represents and agrees that the Disclosure Package and Final
Prospectus relating to this offering is only being distributed to, and is only
directed at, persons in the United Kingdom that are qualified investors within
the meaning of Article 2(1)(e) of the Prospectus Directive that are also (i)
investment professionals falling within Article 19(5) of the Financial Services
and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”) or (ii) high
net worth entities, and other persons to whom it may lawfully be communicated,
falling within Article 49(2)(a) to (d) of the Order (all such persons together
being referred to as “Relevant Persons”).
- 21
-
France
No
prospectus (including any amendment, supplement or replacement thereto) has been
prepared in connection with the offering of the Capital Securities that has been
approved by the Autorité des
marchés financiers or by the competent authority of another State that is
a contracting party to the Agreement on the European Economic Area and notified
to the Autorité des marchés
financiers; each Underwriter represents and agrees that no Capital
Securities have been offered or sold nor will be offered or sold, directly or
indirectly, to the public in France; each Underwriter represents and agrees that
the prospectus or any other offering material relating to the
Capital Securities have not been distributed or caused to be distributed and
will not be distributed or caused to be distributed to the public in France;
such offers, sales and distributions have been and shall only be made in France
to persons licensed to provide the investment service of portfolio management
for the account of third parties, qualified investors (investisseurs qualifiés)
and/or a restricted circle of investors (cercle restreint
d’investisseurs), in each case investing for their own account, all as
defined in Articles L. 411-2, D. 411-1, D. 411-2, D. 411-4, D. 734-1, D.744-1,
D. 754-1 and D. 764-1 of the Code monétaire et financier. Each
Underwriter represents and agrees that the direct or indirect distribution to
the public in France of any so acquired Capital Securities may be made only as
provided by Articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8 to L. 621-8-3 of
the Code monétaire et
financier and applicable regulations thereunder.
Hong
Kong
Each
Underwriter:
(a) has
not offered or sold and will not offer or sell in Hong Kong, by means of any
document, any Capital Securities other than to (i) “professional investors” as
defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any
rules made under that Ordinance; or (ii) in other circumstances which do not
result in the document being a “prospectus” as defined in the Companies
Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the
public within the meaning of that Ordinance; and
(b) has
not issued or had in its possession for the purposes of issue, and will not
issue or have in its possession for the purposes of issue, whether in Hong Kong
or elsewhere, any advertisement, invitation or document relating to the Capital
Securities, which is directed at, or the contents of which are or are likely to
be accessed or read by, the public in Hong Kong (except if permitted to do so
under securities laws of Hong Kong) other than with respect to Capital
Securities which are or are intended to be disposed of only to persons outside
Hong Kong or only to “professional investors” within the meaning of the
Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made
under that Ordinance.
Japan
The
Capital Securities have not been and will not be registered under the Securities
and Exchange Law of Japan. The Underwriters will not offer or sell, directly or
indirectly, any of the Capital Securities in Japan or to, or for the account or
benefit of, any resident of Japan or to, or for the account or benefit of, any
resident for reoffering or resale, directly or indirectly, in Japan or to, or
for the account or benefit of, any resident of Japan except (i) pursuant to an
exemption from the registration requirements of, or otherwise in compliance
with, the Securities and Exchange Law of Japan and (ii) in compliance with the
other relevant laws and regulations of Japan.
Singapore
The
Disclosure Package and Final Prospectus relating to this offering have not been
and will not be registered as a prospectus with the Monetary Authority of
Singapore under the Securities and Futures Act (Chapter 289 of Singapore) (the
“SFA”). Accordingly, each Underwriter has not offered or sold any Capital
Securities or caused the Capital Securities to be made the subject of an
invitation for subscription or purchase and will not offer or sell any
Capital
Securities or cause the Capital Securities to be made the subject of an
invitation for subscription or purchase, and has not circulated or distributed,
nor will it circulate or distribute, such Disclosure Package or Final Prospectus
or any other document or material in connection with the offer or sale, or
invitation for subscription or purchase, of the Capital Securities, whether
directly or indirectly, to persons in Singapore other than (i) to an
institutional investor under Section 274 of the SFA, (ii) to a relevant person,
or any person pursuant to Section 275(1A), and in accordance with the
conditions, specified in Section 275 of the SFA or (iii) otherwise pursuant to,
and in accordance with the conditions of, any other applicable provision of the
SFA.
- 22
-
Each
Underwriter will notify (whether through the distribution of the Disclosure
Package and Final Prospectus relating to this offering or otherwise) each of the
following relevant persons specified in Section 275 of the SFA which has
subscribed or purchased Capital Securities from or through that Underwriter,
namely a person which is:
(a) a
corporation (which is not an accredited investor (as defined in Section 4A of
the SFA)) the sole business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of whom is an
accredited investor; or
(b) a
trust (where the trustee is not an accredited investor) whose sole purpose is to
hold investments and each beneficiary is an accredited investor, that shares,
debentures and units of shares and debentures of that corporation or the
beneficiaries’ rights and interest in that trust shall not be transferable for 6
months after that corporation or that trust has acquired the Capital Securities
under Section 275 of the SFA except:
|
(1)
|
to
an institutional investor (for corporations, under Section 274 of the SFA
)or to a relevant person defined in Section 275(2) of the SFA, or to any
person pursuant to an offer that is made on terms that such shares,
debentures and units of shares and debentures of that corporation or such
rights and interest in that trust are acquired at a consideration of not
less than $200,000 (or its equivalent in a foreign currency) for each
transaction, whether such amount is to be paid for in cash or by exchange
of securities or other assets, and further for corporations, in accordance
with the conditions specified in Section 275 of the
SFA;
|
|
(2)
|
where
no consideration is given for the transfer;
or
|
|
(3)
|
by
operation of law.
|
- 23
-
Please
confirm that the foregoing correctly sets forth the agreement among the Trust,
the Company and the several Underwriters.
|
Very
truly yours,
|
||
|
CITIGROUP
CAPITAL XII
|
||
|
By:
|
/s/
Michael Verdeschi
|
|
|
Michael
Verdeschi
|
||
|
as
Regular Trustee
|
||
|
CITIGROUP
INC.
|
||
|
By:
|
/s/
Charles E. Wainhouse
|
|
|
Name:
Charles E. Wainhouse
|
||
|
Title:
Assistant
Treasurer
|
||
- 24
-
Confirmed
as of the date first
above
mentioned on behalf of
themselves
and the other several
Underwriters
named in Schedule I
hereto.
CITIGROUP
GLOBAL MARKETS INC.
BANC OF
AMERICA SECURITIES LLC
J.P.
MORGAN SECURITIES INC.
MORGAN
STANLEY & CO. INCORPORATED
UBS
SECURITIES LLC
WELLS
FARGO SECURITIES, LLC,
as
Representatives of the several Underwriters
By:
CITIGROUP GLOBAL MARKETS INC.
|
By:
|
/s/
Chandru M. Harjani
|
|
|
Name: Chandru
M. Harjani
|
||
|
Title: Director
|
||
SCHEDULE
I
CITIGROUP
CAPITAL XII
8.500%
Fixed Rate/Floating Rate Trust Preferred Securities (TruPS®)
|
Underwriters
|
Number
of Capital
Securities
|
|||
|
Citigroup
Global Markets Inc.
|
12,533,360 | |||
|
Banc
of America Securities LLC
|
12,533,328 | |||
|
J.P.
Morgan Securities Inc.
|
12,533,328 | |||
|
Morgan
Stanley & Co. Incorporated
|
12,533,328 | |||
|
UBS
Securities LLC
|
12,533,328 | |||
|
Wells
Fargo Securities, LLC
|
12,533,328 | |||
|
BNP
Paribas Securities Corp
|
200,000 | |||
|
Barclays
Capital Inc.
|
200,000 | |||
|
Credit
Suisse Securities (USA) LLC
|
200,000 | |||
|
Deutsche
Bank Securities Inc.
|
200,000 | |||
|
Fidelity
Capital Markets, a division of National Financial Services
LLC
|
200,000 | |||
|
Goldman,
Sachs & Co.
|
200,000 | |||
|
HSBC
Securities (USA) Inc.
|
200,000 | |||
|
Janney
Montgomery Scott LLC
|
200,000 | |||
|
Jefferies
& Company, Inc.
|
200,000 | |||
|
KKR
Capital Markets LLC
|
200,000 | |||
|
Morgan
Keegan & Company, Inc.
|
200,000 | |||
|
Oppenheimer
& Co. Inc.
|
200,000 | |||
|
RBC
Capital Markets Corporation
|
200,000 | |||
|
RBS
Securities Inc.
|
200,000 | |||
|
Robert
W. Baird & Co. Incorporated
|
200,000 | |||
|
Stifel,
Nicolaus & Company, Incorporated
|
200,000 | |||
|
Aladdin
Capital LLC
|
80,000 | |||
|
Blaylock
Robert Van, LLC
|
80,000 | |||
|
Cabrera
Capital Markets, LLC
|
80,000 | |||
|
CastleOak
Securities, LP
|
80,000 | |||
|
Comerica
Securities, Inc.
|
80,000 | |||
|
D.A.
Davidson & Co.
|
80,000 | |||
|
Davenport
& Company LLC
|
80,000 | |||
|
Fifth
Third Securities, Inc.
|
80,000 | |||
|
Keefe,
Bruyette & Woods, Inc.
|
80,000 | |||
|
KeyBanc
Capital Markets Inc.
|
80,000 | |||
|
Loop
Capital Markets LLC
|
80,000 | |||
|
MFR
Securities, Inc.
|
80,000 | |||
|
Mesirow
Financial, Inc.
|
80,000 | |||
|
Muriel
Siebert & Co., Inc.
|
80,000 | |||
|
Samuel
A. Ramirez & Co., Inc.
|
80,000 | |||
|
Sandler
O'Neill & Partners, L.P.
|
80,000 | |||
|
The
Williams Capital Group, L.P.
|
80,000 | |||
|
Toussaint
Capital Partners, LLC
|
80,000 | |||
|
Wedbush
Morgan Securities Inc.
|
80,000 | |||
|
William
Blair & Company, L.L.C.
|
80,000 | |||
|
TOTAL
|
80,000,000 | |||
I-1