CITIGROUP INC. REMARKETING AGREEMENT
6.455%
Junior Subordinated Deferrable Interest Debentures due September 15,
2041
As of
April 27, 2010
Citigroup
Global Markets Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
This
Remarketing Agreement is dated as of April 27, 2010 (the “Remarketing
Agreement”) among Citigroup Inc., a Delaware corporation (the “Company”), and
Citigroup Global Markets Inc. (“Citi”) (the “Remarketing Agent,”
which expression shall include any institution(s) appointed as a Remarketing
Agent in accordance with Section 9 hereof), and The Bank of New York Mellon, not
individually but solely as Stock Purchase Contract Agent (as defined below) and
as attorney-in-fact of the holders of Stock Purchase Contracts (as defined
below). The Remarketing Agents are undertaking to remarket 6.455% Junior
Subordinated Deferrable Interest Debentures due September 15, 2041 (principal
amount $25 per Debenture) which terms will be modified as described in the
notice from The Bank of New York Mellon, as Institutional Trustee (as defined
below), dated April 28, 2010 (the “Notice”) pursuant to
Section 5(c)(i) of Annex I to the Declaration (as defined below) (such
debentures, as modified from time to time or any successor or replacement
debentures (whether or not such debentures were remarketed by the Remarketing
Agent), the “Securities”), issued
by the Company, pursuant to an Indenture dated as of July 23, 2004 (the “Base Indenture”),
between the Company and The Bank of New York Mellon, formerly known as The Bank
of New York, as successor trustee to JPMorgan Chase Bank (the “Trustee”), as
supplemented by the Second Supplemental Indenture, dated as of December 3, 2007
(the “Second
Supplemental Indenture,” and, together with the Base Indenture and,
following execution thereof, the New Supplemental Indentures (as defined below),
the “Indenture”), between
the Company and the Trustee. The Securities were initially issued by the Company
to Citigroup Capital XXX, a statutory business trust formed under Delaware law
(the “Trust”),
together with a guarantee, subject to certain restrictions (the “Guarantee”), of the
6.455% Capital Securities of Citigroup Capital XXX (stated liquidation amount
$1,000 per Capital Security) (the “Capital Securities”)
issued by the Trust pursuant to the terms of the Amended and Restated
Declaration of Trust dated as of December 3, 2007, among the Company, as the
Sponsor, The Bank of New York Mellon, formerly known as The Bank of New York, as
institutional trustee (the “Institutional
Trustee”), BNY Mellon Trust of Delaware, formerly known as The Bank of
New York (Delaware), as Delaware trustee (the “Delaware Trustee”),
the regular trustees named therein and the holders from time to time of the
beneficial interests in the assets of the Trust (the “Declaration”).
A
1/40th
or 2.5% undivided beneficial ownership interest in each Capital Security
is part of a Citigroup Upper DECS Equity Unit (the “DECS”), which
initially also included (i) a stock purchase contract (a “Stock Purchase
Contract”), which was issued pursuant to the Stock Purchase Contract
Agreement, dated as of December 3, 2007 (the “Stock Purchase Contract
Agreement”), between the Company and The Bank of New York Mellon,
formerly known as The Bank of New York, as stock purchase contract agent (the
“Stock Purchase
Contract Agent”) and under which the holder is obligated to purchase from
the Company on the relevant Stock Purchase Date (as defined in the Stock
Purchase Contract Agreement) a number of shares of common stock, par value $0.01
per share, of the Company (the “Common Stock”), equal
to the Settlement Rate as set forth in the Stock Purchase Contract Agreement and
(ii) a 1/40th or 2.5%
undivided beneficial ownership interest in a 6.455% Capital Security of
Citigroup Capital XXX.
In
accordance with the Declaration, on April 21, 2010, the Company, as holder of
all of the common securities of the Trust, directed the Institutional Trustee to
dissolve the Trust, effective May 24, 2010, and to cancel all of the Capital
Securities. In accordance with the terms of the Declaration, the Securities will
be distributed to holders of the Capital Securities and Common Securities (as
defined in the Declaration). Upon distribution to holders of the Capital
Securities, the Securities constituting a part of the DECS will be pledged by
the Stock Purchase Contract Agent, on behalf of the holders of the DECS, to
Wilmington Trust Company, as collateral agent (the “Collateral Agent”),
pursuant to the Pledge Agreement, dated as of December 3, 2007 (the “Pledge Agreement”),
among the Company, the Stock Purchase Contract Agent and Wilmington Trust
Company, as Collateral Agent, custodial agent (the “Custodial Agent”) and
as securities intermediary, to secure the holders’ obligation to purchase Common
Stock on the relevant Stock Purchase Date under the Stock Purchase
Contracts.
Capitalized
terms used and not defined in this Remarketing Agreement shall have the meanings
set forth in the Declaration, the Stock Purchase Contract Agreement, the Pledge
Agreement and/or the Indenture, as the case may be. Unless the context otherwise
requires, all references in the Stock Purchase Contract Agreement, the Pledge
Agreement and the Indenture to the Capital Securities shall be deemed to refer
to the Securities.
The
Remarketing (as defined below) of the Securities is provided for in Section 5 of
Annex I to the Declaration. The Company intends
to promptly enter into one or more new supplemental indentures (the
“New Supplemental
Indentures”) with the Trustee, making provision for the
remarketing and reset mechanics of the Securities,
among other provisions, on the basis set forth
in Section 5 of Annex I to the Declaration
upon dissolution of the
Trust.
As used
in this Remarketing Agreement, the term “Remarketed
Securities” means the Securities subject to the Remarketing as notified
to the Remarketing Agent by the Collateral Agent and the Custodial Agent, on or
prior to the first Business Day prior to the Initial Remarketing (as defined
below); the term “Remarketing
Procedures” means the procedures in connection with the Remarketing,
described in the Stock Purchase Contract Agreement, the Pledge Agreement, the
Declaration and, upon entry into the New Supplemental Indentures, the New
Supplemental Indentures, as the case may be; the term “Remarketing” means
the remarketing of the Remarketed Securities pursuant to the Remarketing
Procedures; the term “Initial Remarketing”
means the initial remarketing period which will begin on May 27, 2010 and end on
June 10, 2010; and the term “Remarketing Settlement
Date” means June 15, 2010. The “Remarketing Date”
means any date during the Initial Remarketing on which the Remarketing Agent(s),
the Company and the Stock Purchase Contract Agent shall enter into a pricing
agreement relating to the Remarketed Securities (the “Pricing
Agreement”). The firm or firms designated as the
representative or representatives, as the case may be, of the Remarketing Agents
of the Remarketed Securities in the Pricing Agreement will act as the
representative or representatives (the “Representatives”). To
the extent there is only one Remarketing Agent for the remarketing of the
Remarketed Securities, the terms Representatives and Remarketing Agents shall
mean the Remarketing Agent.
2
1. Appointment and Obligations
of the Remarketing Agent.
(a) The
Company hereby appoints Citi as the initial Remarketing Agent, and Citi hereby
accepts appointment as Remarketing Agent, for the purpose of
(i) remarketing the Remarketed Securities on behalf of the holders thereof,
(ii) establishing the Reset Rate (as defined below) for the Securities in
connection with the Remarketing, and (iii) performing such other duties as
are assigned to the Remarketing Agents in the Remarketing Procedures, all in
accordance with and pursuant to the Remarketing Procedures.
(b) The
Remarketing Agents agree (i) to use commercially reasonable efforts to
remarket the Remarketed Securities tendered or deemed tendered to the
Remarketing Agents in the Remarketing, (ii) to establish the Reset Rate in
accordance with the Remarketing Procedures and to notify the Sponsor, the
Institutional Trustee, the Trustee and the Stock Purchase Contract Agent
promptly of the Reset Rate, and (ii) to carry out such other duties as are
assigned to the Remarketing Agents in the Remarketing Procedures, all in
accordance with the provisions of the Remarketing Procedures.
(c) During
the Initial Remarketing, the Remarketing Agents shall use their commercially
reasonable efforts to remarket, at a price which results in proceeds, net of the
Remarketing Agent’s Fee as described in Section 1(j), equal to at least 100% of
the Remarketing Value (the “Remarketing Price”),
the Remarketed Securities tendered or deemed tendered for purchase.
(d) If,
as a result of the efforts described in Section l(b), the Remarketing Agents
determine that they will be able to remarket all Remarketed Securities tendered
or deemed tendered for purchase at the Remarketing Price by 4:00 P.M., New York
City time, on any Remarketing Date (a “Successful
Remarketing”), the Remarketing Agents shall in their sole discretion
determine the rate per annum, rounded to the nearest one-thousandth (0.001) of
one percent, which will apply to all Securities (whether or not the holders
thereof participate in the Remarketing) (the “Reset Rate”) that
will enable it to remarket all Remarketed Securities tendered or deemed tendered
for Remarketing; provided, however, that the Reset Rate
may not exceed the Reset Cap and may not be less than 0% per
annum.
3
(e) If,
by 4:00 P.M., New York City time, on the last date in the Initial Remarketing,
the Remarketing Agents are unable to remarket all Remarketed Securities tendered
or deemed tendered for purchase, the remarketing shall be not Successful.
(f) By
approximately 4:30 P.M., New York City time, on the applicable Remarketing Date,
the Remarketing Agents shall notify the Sponsor, the Institutional Trustee (if
applicable), the Trustee and the Stock Purchase Contract Agent that the
Remarketing was a Successful Remarketing and of the Reset Rate determined in the
Remarketing.
(g) In
accordance with the Depositary’s normal procedures, on the Remarketing
Settlement Date, the transactions described above with respect to each Security
tendered or deemed tendered for purchase and sold in the Remarketing shall be
executed through the Depositary, and the accounts of the respective Depositary
participants shall be debited and credited and such Securities delivered by
book-entry as necessary to effect purchases and sales of such
Securities.
(h) On
the Remarketing Settlement Date, the tender and settlement procedures set forth
in this Section 1, including provisions for payment by purchasers of the
Remarketed Securities in the Remarketing, shall be subject to modification to
the extent required by the Depositary or, if the book-entry system is no longer
available for the Remarketed Securities at the time of the Remarketing, to
facilitate the tendering and remarketing of the Remarketed Securities in
certificated form. In addition, the Remarketing Agents may modify the settlement
procedures set forth herein in order to facilitate the settlement
process.
(i) On
the Remarketing Settlement Date, the Remarketing Agents shall retain as a
remarketing fee an amount to be as agreed among the Sponsor, the Trust (if
applicable) and the Remarketing Agents and specified in the Pricing Agreement
(the “Remarketing
Agent’s Fee”) and shall remit any proceeds remaining after such deduction
as provided for in the Remarketing Procedures. Holders whose Securities are
remarketed pursuant to this Remarketing Agreement will not otherwise be
responsible for the payment of any remarketing fee in connection
therewith.
(j) On
any day during the Initial Remarketing other than the last day of the Initial
Remarketing, the Sponsor may, in its absolute discretion (and without prior
notice being given to holders of Securities or the DECS), postpone the
Remarketing until the following Business Day by giving notice of such
postponement to the Remarketing Agents in accordance with this Remarketing
Agreement.
(k) If
fewer than all of the Remarketed Securities are remarketed in accordance with
the terms hereof, the Remarketing shall be deemed to have failed as to all
Remarketed Securities.
(l) The
Remarketing Agents hereby agree in connection with the remarketing of the
Remarketed Securities to comply with the requirements set forth in any
applicable sections of Rule 2720 of the NASD Conduct Rules adopted by the
Financial Industry Regulatory Authority.
4
(m) If
at any time during the term of this Remarketing Agreement, any Event of Default
(as defined in the Indenture) or event that with the passage of time or the
giving of notice or both would become such an Event of Default has occurred and
is continuing under the Indenture, then the obligations and duties of the
Remarketing Agents under this Remarketing Agreement shall be suspended until
such default or event has been cured. The Company will promptly cause the
Trustee, the Stock Purchase Contract Agent and the Collateral Agent to give the
Remarketing Agents notice of all such defaults and events.
2. Representations and
Warranties. The Company represents and warrants to, and agrees
with, each Remarketing Agent as set forth below in this
Section 2.
(a) The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration
statement, as defined in Rule 405 (File No. 333-157459), for registration under
the Act of the remarketing of the Remarketed Securities. Such
Registration Statement, including any amendments thereto filed prior to the
Execution Time, became effective upon filing. The Company will file with the
Commission, as part of an amendment to the Registration Statement or pursuant to
Rule 424(b), a preliminary prospectus relating to the Remarketed Securities,
which will be furnished to you. The Company will file with the
Commission a final prospectus relating to the Remarketed 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, at the Execution Time, will
meet the requirements set forth in Rule 415(a)(1)(x). The
initial Effective Date of the Registration Statement will not be earlier than
the date three years before the Execution Time.
(b) On
each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed and on the Remarketing Settlement 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 at
the Execution Time, 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 Remarketing Settlement Date,
the Indenture 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 Remarketing Settlement Date,
the Final Prospectus (together with any supplement thereto) will not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statements of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act 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
Remarketing Agent 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 Remarketing Agents consists of the information described as such
in Section 7 hereof.
5
(c) As
of the Execution Time, the Disclosure Package and the Final Term Sheet (as
defined in Section 4(b) below), when taken together as a whole, will 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 information in or omissions from the
Disclosure Package or the Final Term Sheet based upon and in conformity with
written information furnished to the Company by any Remarketing Agent through
the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Remarketing
Agent consists of the information described as such in Section 7
hereof.
(d) (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) at the Execution Time (with such date being used as the
determination date for purposes of this clause (iii)), the Company was or will
be (as the case may be) a “well-known seasoned issuer” as defined in Rule
405. The Company agrees to pay the fees required by the Commission
relating to the Remarketed 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).
(e) (i)
At the earliest time after the latest Effective Date that the Company or another
offering participant makes a bona fide offer (within the
meaning of Rule 164(h)(2)) of the Remarketed Securities and (ii) as of the
Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and will not be an Ineligible Issuer
(as defined in Rule 405), without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(f)
Neither any Issuer Free Writing Prospectus nor the Final Term Sheet will include
any information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein and any
prospectus 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 the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Remarketing Agent through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Remarketing
Agent consists of the information described as such in Section 7
hereof.
6
(g) 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
Disclosure Package and the Final Prospectus, will not be an “investment company”
as defined in the Investment Company Act of 1940, as amended.
Any
certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Remarketing Agents that references the
Remarketing or this Remarketing Agreement shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Remarketing
Agent.
3. The Remarketed
Securities. The
Remarketed Securities shall be issuable only in registered
form. The Remarketed Securities will be initially represented by one
or more global Securities registered in the name of DTC or its
nominees. Beneficial interests in the Remarketed Securities will be
shown on, and transfers thereof will be effected only through, records
maintained by DTC, Euroclear Bank S.A./N.V. and Clearstream International and
their respective participants. Owners of beneficial interests in the
Remarketed Securities will be entitled to physical delivery of Securities in
certificated form only under the limited circumstances described in the Final
Prospectus. Principal and interest on the Remarketed Securities shall
be payable in United States dollars. The relevant provisions of
Article IV of the Indenture relating to defeasance shall apply to the Remarketed
Securities.
4. Agreements. The
Company agrees with the several Remarketing Agents that:
(a) Prior
to the termination of the Remarketing of the Remarketed Securities, the Company
will not file any amendment of the Registration Statement or prospectus
(including the Preliminary Prospectus and the Final Prospectus) unless the
Company has furnished the Representatives a copy for their review prior to
filing and will not file any such proposed amendment or prospectus to which they
reasonably object. The Company will cause the Final Prospectus,
properly completed, and any supplement thereto, to be filed in a form approved
by the Representatives with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (1) when the Final Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (2) when, prior to termination of the Remarketing of
the Remarketed 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 any
Rule 462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (4) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (5) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Remarketed Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop order
or the occurrence of any such suspension or objection to the use of the
Registration Statement and, upon such issuance, occurrence or notice of
objection, to obtain as soon as possible the withdrawal of such stop order or
relief from such occurrence or objection, including, if necessary, by filing an
amendment to the Registration Statement or a new registration statement and
using its best efforts to have such amendment or new registration statement
declared effective as soon as practicable.
7
(b) The
Company will prepare a final term sheet, containing solely a description of
final terms of the Remarketed Securities and the remarketing thereof (the “Final Term Sheet”),
in a form approved by Citi 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, any event occurs as a
result of which the Disclosure Package would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
at such time not misleading, the Company will (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 the Remarketing Agents in such quantities as the Remarketing Agents may
reasonably request.
(d) If,
at any time when a prospectus relating to the Remarketed 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
(i) promptly notify the Representatives of such event, (ii) prepare
and file with the Commission, subject to the second sentence of paragraph (a) of
this Section 4, 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.
(e) As
soon as practicable, but in any event not later than 16 months after the
Remarketing Settlement Date, the Company will make generally available to its
security holders and the Representatives an earnings statement of the Company
covering a period of at least 12 months beginning after the Remarketing
Settlement Date and otherwise satisfying Section 11(a) of the
Act.
8
(f)
Upon request, the Company will furnish to the Representatives
and counsel for the Remarketing Agents, without charge, so long as delivery of a
prospectus by a Remarketing Agent 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 the Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the
remarketing that are required to be prepared, furnished or delivered by
it.
(g) The
Company will arrange, if necessary, for the qualification of the Remarketed
Securities for sale under the laws of such jurisdictions as the Representatives
reasonably may designate, will maintain such qualifications in effect so long as
required for the distribution of the Remarketed Securities and will pay any fee
of the Financial Industry Regulatory Authority, Inc., in connection with its
review of the remarketing; provided that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the remarketing of
the Remarketed Securities, in any jurisdiction where it is not now so
subject.
(h) Upon
the request of the Representatives if they deem it necessary or advisable in
connection with the remarketing, the Company agrees to use its best efforts to
have the Remarketed Securities approved for listing on the Luxembourg Stock
Exchange and to maintain such listing so long as any of the Remarketed
Securities are outstanding, provided, however, that: if it is impracticable or
unduly burdensome, in the good faith determination of the Company, to maintain
such listing due to changes in listing requirements occurring after the date of
the Prospectus, or if the Transparency Directive (as defined in the Prospectus)
is implemented in Luxembourg in a manner that would require the Company to
publish financial information according to accounting principles or standards
that are materially different from United States generally accepted accounting
principles, the Company may de-list the Remarketed Securities from the
Luxembourg Stock Exchange and shall use its reasonable best efforts to obtain an
alternative admission to listing, trading and/or quotation of the Remarketed
Securities by another listing authority, exchange or system within or outside
the European Union as it may decide. If such an alternative admission
is not available or is, in the Company’s opinion, unduly burdensome, such an
alternative admission will not be obtained, and the Company shall have no
further obligation in respect of any listing, trading or quotation for the
Remarketed Securities.
(i) (i)
The Company agrees that, unless it has obtained or will obtain, as the case may
be, the prior written consent of the Representatives, and (ii) each Remarketing
Agent, severally and not jointly, agrees with the Company that, unless it has
obtained or will obtain, as the case may be, the prior written consent of the
Company, it has not made and will not make any offer relating to the Remarketed
Securities that would constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a “free writing prospectus” (as defined in Rule 405)
required to be filed by the Company with the Commission or retained by the
Company under Rule 433, other than the Final Term Sheet; provided that the prior
written consent of the parties hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses, if any, included as a schedule to the
Pricing Agreement. Any such free writing prospectus consented to by
the Representatives or the Company is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company agrees that (x) it has treated
and will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus and (y) it has complied and will comply, as the
case may be, with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping.
9
(j) The
Company will not, without the prior written consent of the Representatives,
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, except any broker-dealer affiliate, or any person in privity
with the Company or any affiliate of the Company, except any broker-dealer
affiliate) 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 guarantee of such securities (other than a guarantee
of securities issued by Citigroup Funding Inc.), of the Company, in each case
that are substantially similar to the Remarketed Securities or any security
convertible into or exchangeable for the Remarketed Securities or such
substantially similar securities, or publicly announce an intention to effect
any such transaction, during the period beginning the start of the Initial
Remarketing and ending the Remarketing Settlement Date.
(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
Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Remarketed Securities, except that the Company makes no agreement as to the
activities of any Remarketing Agent.
5. Conditions to the
Obligations of the Remarketing Agents. The obligations of the
Remarketing Agents to purchase the Remarketed Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, the Execution Time, the Remarketing Date
and the Remarketing Settlement 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 Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
10
(a) (i) The
Trust shall have been duly and validly dissolved, the Capital Securities shall
have been cancelled and the Securities shall have been duly and validly
distributed to the holders of the Capital Securities and Common Securities in
accordance with terms of the Declaration, (ii) the Stock Purchase Contract
Agent, the Collateral Agent, the Custodial Agent, the Company and the Trustee
shall have performed their respective obligations in connection with the
Remarketing pursuant to the Stock Purchase Contract Agreement, the Pledge
Agreement, the Indenture and this Remarketing Agreement (including, without
limitation, giving the Remarketing Agents notice of the aggregate principal
amount of Remarketed Securities to be remarketed no later than 11:00 a.m.,
New York City time, on the first Business Day prior to the Initial Remarketing
and concurrently delivering evidence of the Securities to be remarketed to the
Remarketing Agents), (iii) no Event of Default (as defined in the
Indenture) shall have occurred and be continuing, (iv) the Company and the
Trustee shall have entered into the New Supplemental Indentures (in form and
substance reasonably satisfactory to the Representatives) and (v) the satisfaction of the other conditions
set forth in this Remarketing Agreement.
(b) 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 4(b) hereto, and any other material required to be filed
by the Company pursuant to Rule 433(d) under the Act, shall have been filed with
the Commission within the applicable time periods prescribed for such filings by
Rule 433; and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(c) Subsequent
to the Execution Time, (1) trading in the Company’s Common Stock shall not
have been suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall not have been
suspended or limited or minimum prices shall not have been established on such
exchange, (2) a banking moratorium shall not have been declared either by
Federal or New York State authorities and (3) there shall not have occurred
any outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives after consultation with the Company, impractical or inadvisable
to proceed with the Initial Remarketing or delivery of the Securities as
contemplated by the Disclosure Package or the Final Prospectus (exclusive of any
amendment or supplement thereto).
(d) The
Company shall have requested and caused counsel for the Company to have
furnished to the Representatives the opinion, dated the Remarketing Settlement
Date and addressed to the Representatives, with respect to the Remarketing of
the Remarketed Securities, the Indenture, the Registration Statement, the
Disclosure Package, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably
require.
(e) The
Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, counsel for the Remarketing Agents, such opinion or opinions, dated the
Remarketing Settlement Date and addressed to the Representatives, with respect
to the Remarketing of the Remarketed Securities, the Indenture, 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 Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
11
(f) The
Representatives shall have received an opinion of counsel for the Company, dated
the Remarketing Settlement Date, to the effect that the material federal tax
consequences to the holders of the Remarketed Securities as set forth in the
Prospectus under the caption “Material United States Federal Income Tax
Considerations,” insofar as they purport to constitute a summary of matters of
U.S. federal income tax, constitute an accurate summary of the matters set forth
therein in all material respects.
(g) The
Company shall have furnished to the Representatives a certificate of the
Company, signed 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, dated the Remarketing Settlement 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 Remarketing Agreement and that:
(i) the
representations and warranties of the Company in this Remarketing Agreement are
true and correct on and as of the Remarketing Settlement Date with the same
effect as if made on the Remarketing Settlement Date and the Company has
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Remarketing Settlement
Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any
notice objecting to its use has been issued and no proceedings for that purpose
have been instituted or, to the Company’s knowledge, threatened;
and
(iii) since
the date of the most recent financial statements included or incorporated by
reference in the Final Prospectus (exclusive of any supplement thereto), there
has been no material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
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).
(h) The
Company shall have requested and caused KPMG LLP to have furnished to the
Representatives, at the Remarketing Settlement Date, a customary “comfort
letter”, dated as of the Remarketing Settlement Date, that is satisfactory in
content and form to the Representatives.
12
(i) 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 referred to in
paragraph (h) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives after consultation with
the Company, so material and adverse as to make it impractical or inadvisable to
proceed with the remarketing or delivery of the Remarketed Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof),
the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto) and any Issuer Free Writing Prospectus.
(j) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of
any of the Company’s senior securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of
the possible change.
(k) Prior
to the Remarketing Settlement 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 5 shall not have been fulfilled when
and as provided in this Remarketing Agreement with respect to the remarketing of
Remarketed Securities, or if any of the opinions and certificates mentioned
above or elsewhere in this Remarketing Agreement shall not be reasonably
satisfactory in form and substance to the Representatives and counsel for the
Remarketing Agents, this Remarketing Agreement and all obligations of the
Remarketing Agents hereunder may be canceled with respect to such remarketing
at, or at any time prior to, the Remarketing Settlement Date by the
Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in
writing.
The
documents required to be delivered by this Section 5 shall be delivered at the
office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Remarketing
Agents, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Remarketing
Settlement Date.
13
6. Reimbursement of Remarketing
Agents’ Expenses. If the sale of the Remarketed Securities
provided for herein is not consummated because any condition to the obligations
of the Remarketing Agents set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 12 hereof or because of any
refusal, inability or failure on the part of the Company to perform any of its
agreements herein or comply with any provision hereof other than by reason of a
default by any of the Remarketing Agents, the Company will reimburse the
Remarketing Agents 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
remarketing of the Remarketed Securities.
7. Indemnification and
Contribution.
(a) The
Company agrees to indemnify and hold harmless each Remarketing Agent, the
directors, officers, employees and agents of each Remarketing Agent and each
person who controls any Remarketing Agent 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
the Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing
Prospectus or the information contained in the Final Term Sheet, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Remarketing Agent through the Representatives
specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each
Remarketing Agent severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Remarketing Agent, but only with
reference to written information furnished to the Company by or on behalf of
such Remarketing Agent 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 Remarketing Agent may
otherwise have. The Company acknowledges that the statements set
forth (i) in the second-to-last paragraph of the cover page regarding delivery
of the Remarketed Securities and, under the heading “Plan of Distribution” and
(ii) the paragraph related to over-allotment, stabilization and syndicate
covering transactions in the Preliminary Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Remarketing Agents for inclusion in the Preliminary Prospectus or the
Final Prospectus.
14
(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.
15
(d) In
the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Remarketing Agents severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively “Losses”) to which the
Company and one or more of the Remarketing Agents may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and by the Remarketing Agents on the other from the
remarketing of the Remarketed Securities; provided, however, that in no
case shall (i) any Remarketing Agent (except as may be provided in any agreement
among Remarketing Agents relating to the remarketing of the Remarketed
Securities) be responsible for any amount in excess of the Remarketing Agent’s
Fee applicable to the Remarketed Securities purchased by such Remarketing Agent
hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Remarketing Agents
severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on the
one hand and of the Remarketing Agents on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the remarketing
(before deducting expenses) received by the Company, and benefits received by
the Remarketing Agents shall be deemed to be equal to the Remarketing Agent’s
Fee, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Remarketing Agents on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Remarketing Agents 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 a Remarketing Agent within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of a Remarketing
Agent shall have the same rights to contribution as such Remarketing Agent, 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 who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
8. Resignation and Removal of
the Remarketing Agents. The Remarketing Agents may resign and be
discharged from their duties and obligations hereunder, and the Company may
remove a Remarketing Agent, by giving five (5) Business Days’ prior written
notice to the Stock Purchase Contract Agent and, in the case of a removal, to
the Representatives; provided
that no such resignation nor any such removal shall become effective
unless at least one Remarketing Agent remains, or is appointed pursuant to
Section 9 as, a party to this Remarketing Agreement. The provisions of this
Section 8 shall survive the resignation or removal of the Remarketing
Agents pursuant to this Remarketing Agreement.
9. New Remarketing
Agents. The Company may appoint any institution or institutions as
new Remarketing Agent(s) hereunder (each a “New Remarketing
Agent”) in respect of the Remarketing in which event, upon the
confirmation by such institution through a letter to the Company and
the Stock Purchase Contract Agent confirming acceptance of such nomination by
the New Remarketing Agent substantially in the form of Annex I hereof,
such New Remarketing Agent shall become a party hereto, unless otherwise
provided for herein, with all the authority, rights, powers, duties and
obligations as if originally named as Remarketing Agent hereunder. The
Company will notify the Remarketing Agent(s) appointed in respect of the
remarketing of the Remarketed Securities and the Stock Purchase Contract Agent
of a change in the identity of other Remarketing Agents appointed or who have
resigned in respect of the remarketing of the Remarketed Securities generally as
soon as reasonably practicable.
16
10. Dealing in the Remarketed
Securities. The Remarketing Agents, when acting hereunder, or when acting
in its individual or any other capacity, may, to the extent permitted by law,
buy, sell, hold or deal in any of the Remarketed Securities. The Remarketing
Agents may exercise any vote or join in any action which any beneficial owner of
Remarketed Securities may be entitled to exercise or take pursuant to the
Indenture with like effect as if it did not act in any capacity hereunder. The
Remarketing Agents, in their individual capacities, either as principal or
agent, may also engage in or have an interest in any financial or other
transaction with the Company as freely as if it did not act in any capacity
hereunder.
11. Selling Restrictions.
Each Remarketing Agent agrees and each additional Remarketing Agent appointed
pursuant to Section 1 of this Remarketing Agreement will be required to
agree that it will comply with the additional selling restrictions as set forth
in Annex II hereof.
12. Termination of Remarketing
Agreement. This Remarketing Agreement shall terminate (i) the Business
Day immediately following the Remarketing Settlement Date, (ii) at 5:00 P.M. New
York City time, on the last date of the Initial Remarketing if the remarketing
is not Successful or (ii) on the effective date of the resignation or
removal of all of the Remarketing Agents pursuant to Section 8 without any
appointment of new Remarketing Agents pursuant to Section 9. In addition, the
obligations of the Remarketing Agent may be terminated by it by notice given to
the Company prior to the start of the Initial Remarketing if, prior to that
time, any of the conditions precedent to the obligations of the Remarketing
Agents described in Section 5 hereof as to be satisfied by the date of such
notice shall have failed to occur.
13. Representations and
Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Remarketing Agents set forth in or made pursuant to this
Remarketing Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Remarketing Agent or the Company or
any of the officers, directors, employees, agents or controlling persons
referred to in Section 7 hereof, and will survive delivery of and payment for
the Remarketed Securities. The provisions of Sections 6 and 7 hereof
shall survive the termination or cancellation of this Remarketing
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.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel; if sent to the
Company, will be mailed, delivered or telefaxed to Citigroup Inc.—Treasury
Department, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
Citigroup Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Associate General Counsel – Capital
Markets (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇).
17
15. Successors. This
Remarketing Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors,
employees, agents and controlling persons referred to in Section 7 hereof, and
no other person will have any right or obligation hereunder.
16. No Fiduciary Duty.
The Company hereby acknowledges that (i) the remarketing of the Remarketed
Securities pursuant to this Remarketing Agreement is an arm’s-length commercial
transaction between the Company, on the one hand, and the Remarketing Agents and
any affiliate through which it may be acting, on the other, (ii) the Remarketing
Agents owe the Company only those duties and obligations set forth in this
Agreement and the Remarketing Procedures and (iii) the Company’s engagement of
the Remarketing Agents in connection with the remarketing and the
process leading up to the remarketing is as independent contractors and not in
any other capacity. Furthermore, the Company agrees that it is solely
responsible for making its own judgments in connection with the remarketing
(irrespective of whether any of the Remarketing Agents has advised or is
currently advising the Company on related or other matters). The
Company agrees that it will not claim that the Remarketing Agents have rendered
advisory services of any nature or respect, or owe a fiduciary or similar duty
to the Company, in connection with such transaction or the process leading
thereto.
17. Integration. This
Remarketing Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Remarketing Agents, or any
of them, with respect to the subject matter hereof.
18. Applicable
Law. This Remarketing Agreement and the Pricing 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
Remarketing 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 Remarketing 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.
18
“Disclosure
Package” shall mean (i) the Preliminary Prospectus used most recently prior to
the Execution Time, (ii) the Issuer Free Writing Prospectuses, if any, attached
as an exhibit to the Pricing Agreement, and (iii) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree in writing to
treat as part of the Disclosure Package.
“Effective
Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto became or become
effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time specified in the Pricing Agreement, or such
other time as agreed by the Company and the Remarketing Agents.
“Final
Prospectus” shall mean the prospectus relating to the Remarketed Securities that
was first filed pursuant to Rule 424(b) after the Execution
Time.
“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 the preliminary prospectus which is used prior to filing
of the Final Prospectus.
“Prospectus”
shall mean the Preliminary Prospectus or the Final Prospectus, as
applicable.
“Registration
Statement” shall mean the registration statement referred to in
Section 2(a) above, including exhibits and financial statements and any
prospectus relating to the Remarketed 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
Remarketing Settlement Date, shall also mean such registration statement as so
amended.
“Rule
158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”,
“Rule 424”, “Rule 430B” and “Rule 433” refer to such rules
under the Act.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the
rules and regulations of the Commission promulgated thereunder.
“Well-Known
Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule
405.
19
22. Incorporation by Reference
to Stock Purchase Contract Agreement. In connection with its
execution hereof and its acting hereunder, the Stock Purchase Contract Agent is
entitled to all rights, privileges, protections, benefits, immunities and
indemnities provided to it under the Stock Purchase Contract
Agreement.
20
Sincerely,
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
|
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
Title:
Chief Financial Officer
|
|
THE
BANK OF NEW YORK MELLON,
|
|
not
in its individual capacity but solely as
|
|
Stock
Purchase Contract Agent
|
|
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
|
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Title:
Senior Associate
|
Accepted
as of the date hereof on behalf of the Remarketing Agents:
CITIGROUP
GLOBAL MARKETS INC.
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇.
|
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
|
|
Title:
Managing Director
|
21
ANNEX
I
FORM OF ACCESSION
LETTER
[Date]
[New
Remarketing Agent]
[Address]
To Whom
It May Concern:
Remarketing of 6.455% Junior
Subordinated Deferrable Interest Debentures due September 15, 2041 of Citigroup
Inc. (the “Remarketed
Securities”)
The
undersigned refers to the Remarketing Agreement, dated as of April 27,
2010 (the “Remarketing
Agreement”) among ourselves as the Company, The Bank of New York Mellon,
as Stock Purchase Contract Agent (the “Purchase Contract
Agent”), and the Remarketing Agents from time to time party thereto, and
has the pleasure of inviting you to become a Remarketing Agent subject to and in
accordance with the terms of the Remarketing Agreement, a copy of which has been
supplied to you by us. In addition, we enclose letters entitling you to rely on
the original letters referred to in Section 5 of the Remarketing Agreement,
as such letters may have been amended or supplemented, together with copies of
such original, amended or supplemented letters. Please return to the Company a
copy of this letter signed by an authorized signatory whereupon you will become
a Remarketing Agent for the purposes of the Remarketing Agreement with all the
authority, rights, powers, duties and obligations of a Remarketing Agent under
the Remarketing Agreement.
This
letter is governed by, and shall be construed in accordance with, the laws of
the State of New York. The provisions of Sections 15 and 18 of the
Remarketing Agreement shall apply to this letter as if set out herein in
full.
Sincerely,
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
22
Acknowledged
as of the date hereof:
THE BANK OF NEW YORK
MELLON,
as Stock
Purchase Contract Agent
|
By:
|
||
|
Name:
|
||
|
Title:
|
CONFIRMATION
We
hereby accept the appointment as a Remarketing Agent and accept all of the
duties and obligations under, and the terms and conditions of the Remarketing
Agreement upon the terms of this letter.
We
confirm that we are in receipt of all the documents which we have requested and
have found them to be satisfactory.
For
the purposes of the Remarketing Agreement our communications details are as set
out below.
|
[NEW
REMARKETING AGENT]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
[ ]
|
|
|
Address:
|
[ ]
|
|
|
Telex:
|
[ ]
|
|
|
Facsimile:
|
[ ]
|
|
|
Attention:
|
[ ]
|
Copies
to:
(i) All
existing Remarketing Agents who have been appointed in respect of the
Remarketing of the Remarketed Securities.
(ii) The
Stock Purchase Contract Agent.
23
ANNEX
II
SELLING
RESTRICTIONS
European
Economic Area
The
Remarketing Agents 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 Remarketed Securities which
are the subject of this remarketing may not be made in that Relevant Member
State prior to the publication of a prospectus in relation to such Remarketed
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 Remarketed 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 Remarketed 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 Remarketed Securities to be offered so as to enable
an investor to decide to purchase any Remarketed 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.
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Each
Remarketing Agent represents and agrees that the Prospectus relating to this
remarketing 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 ▇▇▇ ▇▇▇▇
(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”).
France
No
prospectus (including any amendment, supplement or replacement thereto) has been
prepared in connection with the remarketing of the Remarketed 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 Remarketing Agent represents and agrees that no
Remarketed Securities have been offered or sold nor will be offered or sold,
directly or indirectly, to the public in France; each Remarketing Agent
represents and agrees that the prospectus or any other offering material
relating to the Remarketed 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
Remarketing Agent represents and agrees that the direct or indirect distribution
to the public in France of any so acquired Remarketed 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
Remarketing Agent:
(a) has
not offered or sold and will not offer or sell in Hong Kong, by means of any
document, any Remarketed 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
Remarketed 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
Remarketed 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.
25
Japan
The
Remarketed Securities have not been and will not be registered under the
Securities and Exchange Law of Japan. The Remarketing Agents will not offer or
sell, directly or indirectly, any of the Remarketed 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 remarketing 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
Prospectus relating to this remarketing 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
Remarketing Agent has not offered or sold any Remarketed Securities or caused
the Remarketed Securities to be made the subject of an invitation for
subscription or purchase and will not offer or sell any Remarketed Securities or
cause the Remarketed 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 Prospectus or any other document or material in
connection with the offer or sale, or invitation for subscription or purchase,
of the Remarketed 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.
Each
Remarketing Agent will notify (whether through the distribution of the
Prospectus relating to this remarketing or otherwise) each of the following
relevant persons specified in Section 275 of the SFA which has subscribed or
purchased Remarketed Securities from or through that Remarketing Agent, 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 Remarketed
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;
|
26
|
|
(2)
|
where
no consideration is given for the transfer;
or
|
by
operation of law.
27